Semmes v. Worthington

• Decision Date: 02 July 1873
• Citation: 38 Md. 298
• Parties: CHARLES W. SEMMES v. BENJAMIN J. WORTHINGTON, Trustee, and others. BENJAMIN J. WORTHINGTON, Trustee, and others, v. CHARLES W. SEMMES.
• Court: Court of Special Appeals of Maryland

38 Md. 298

CHARLES W. SEMMES v. BENJAMIN J. WORTHINGTON, Trustee, and others.

BENJAMIN J. WORTHINGTON, Trustee, and others, v. CHARLES W. SEMMES.

Court of Appeals of Maryland

APRIL TERM, 1873

July 2, 1873

Equity Pleading—Statute of Frauds—Specific Performance of a Contract to Devise real Estate—Specific Performance of Contracts—Character of Proof required to establish the Contract—Competency of a Witness—When a Court of Equity will interfere to compel the Specific execution of a Contract—Character of the acts of Part performance, to relieve a Contract of the operation of the Statute of Frauds.

Where a complainant seeks the specific execution of a parol contract, within the Statute of Frauds, and the defendant by his answer denies the making of the contract, it is not necessary for him to plead the Statute, or insist on it as a bar; but the complainant, in order to entitle himself to the relief prayed, must at the hearing fully establish the contract as alleged, and such acts of part performance thereof as will take the case out of the Statute.

A contract to devise real estate, if shown to be in all respects fair, just and reasonable, founded on sufficient consideration, and there be no doubt on the proof as to any of its terms, may be enforced by specific performance, by way of conveyance, as against the heirs or devisees of the party obligating himself to devise.

In all cases for specific performance the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt. And in cases for the specific enforcement of a contract to devise real estate, whore the property has been devised to other parties, the utmost certainty is required, as by the enforcement of the contract, the Court undertakes to set aside a solemn testamentary act of the deceased party, in the absence of all possible explanation of his conduct, and when he is no longer present to vindicate himself against the imputation of bad faith.

In a proceeding in Equity to enforce against the estate of a deceased testator, an alleged parol contract on his part to devise a particular portion of his real estate to the complainant, in consideration of certain conduct and services to be performed by him, a person whose interest under the will of the testator, in the subject-matter in controversy, is altogether contingent and remote—being dependent upon the dying in her life-time and without issue, of two other persons—is a competent witness for the defendants, even according to the common law rule of evidence; and there is nothing in the Evidence Acts of 1864 and 1868, that can exclude, not being within the exceptions of these Acts.

Specific execution of contracts by Courts of Equity is not a matter of absolute right in the party applying, but of sound discretion in the Court, to be exercised upon consideration of all the circumstances of each particular case—this discretion, however, to be controlled by the established doctrines and settled principles upon the subject.

A Court of Equity will not, as a matter of course, exercise the power to compel or effect a specific execution of a contract, because the legal obligation under it may be perfect. In every case the question is, whether the exercise of the power is called for to subserve the ends of justice? and unless the Court is satisfied that the application to it, for this extraordinary assistance, is fair, just and reasonable in every respect, it will refuse to interfere, and leave the party to other remedies for redress.

Where an act of part performance is relied on to relieve a contract of the operation of the Statute of Frauds, such act must in itself furnish evidence of the identity of the contract; it is not enough that it is evidence of some contract; it must relate to, and be unequivocal evidence of the particular contract charged in the bill. The contract must be clear and definite, and the act done should be equally clear and definite, and solely with a view to the performance of the particular agreement. The act done must be of a substantial nature, and such that the party would suffer an injury amounting to a fraud by the refusal to execute the agreement.

CROSS-APPEALS from the Circuit Court for Baltimore County, in Equity.

The bill of complaint in this case was filed on the 28th of June, 1870, by Charles W. Semmes, against Benjamin J. Worthington, trustee under the will of Richard J. Worthington, deceased, and Mary J. Milnor, and Clara Semmes, infants, cestuis que trust, under said will, and J. N. L. Milnor, and Susan J. Milnor, his wife; the latter having under said will a contingent interest in the real estate in controversy. The object of the bill was to procure the specific execution of a parol contract, alleged to have been entered into between the testator, Richard J. Worthington, and the complainant in April, 1869, whereby in consideration of certain money paid, and certain services to be rendered, by the complainant to the deceased, the latter agreed to devise the former certain real estate situated in Baltimore County, and known as "Bloomfield Farm and Race Course."

The facts of the case are sufficiently disclosed in the opinion of the Court and the arguments of counsel. The Circuit Court (GRASON and YELLOTT, J.,) on the 27th of March, 1873, decreed that the complainant was entitled to the specific performance by the defendants of the contract so far as the same related to the real estate known as "Bloomfield Farm," but not as to the "Race Course," and appointed a trustee to convey the said "Bloomfield Farm" to the complainant. Both sides appealed; the complainant from so much of the decree as limited his right to a conveyance of "Bloomfield Farm," and the defendants from the decree generally.

The cause was argued before BARTOL, C. J., MILLER, ALVEY, and ROBINSON, J.

John P. Poe, and I. Nevett Steele, for Charles W. Semmes.

The bill in this case seeks to procure the specific performance of a parol contract to devise real estate, upon the ground of part performance, sufficient under the established rule in such cases, to remove the bar of the Statute of Frauds.

The principle that equity in a proper case will specifically enforce an agreement to make a devise, is clearly and fully established. 2 Parsons on Contracts, 563; 3 Parsons on Contracts, 406; Newland on Contracts, 111; Story's Eq. Jur., 781, 785; Bingham on Sale of Real Prop., chap. 6, p. 310; Logan vs. McGinnis, 12 Penn. St. Rep., 32; McClure vs. McClure, 1 Penn. St. Rep., 374; Brinker vs. Brinker, 7 Barr, 53; Johnson vs. Hubbell, 2 Stockton, 332; Van Dyne vs. Vreeland, 3 Stockton, 370; Davison vs. Davison, 2 Beasley, 246; Watson vs. Mahan, 20 Indiana, 223; Rhodes vs. Rhodes, 3 Sandford Ch., 279; Lobdell vs. Lobdell, 36 N. Y., 327; Freeman vs. Freeman, 51 Barb., 306, and 43 N. Y., 34; Wright vs Tinsley, 30 Mo, 389; Gupton vs. Gupton, 47 Mo., 37; Izard vs. Middleton, 1 Dessaus., 116; Rivers vs. Ex'rs. of Rivers, 3 Dessaus., 195; Walpole vs. Orford, 3 Vesey, 402; Dufour vs. Pereira, 1 Dick., 419; Loffus vs. Maw, 3 Giffard, 592; Smith's Manual of Equity, 253-257; Mundorff vs. Kilbourn, 4 Md., 463; Johns vs. Johns, 20 Md., 58; Whitridge & Alexander vs. Parkhurst, 20 Md., 62; Frisby vs. Parkhurst, 29 Md., 58; C. D. Owings' Case, 1 Bland, 397.

"Every agreement to merit the interposition of a Court of Equity to enforce it, must be fair, just, reasonable, bona fide, certain in all its parts and mutual." Gelston vs. Sigmund, 27 Md., 343; Smith vs. Crandall, 20 Md., 500.

"If the contract be by parol and the party setting it up claims to take the case out of the Statute of Frauds on the ground of part performance of the contract, he must make out by clear and satisfactory proof, the existence of the contract as laid in the bill. The act of part performance must be of the identical contract set up. It is not enough that the act is evidence of some agreement; but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill."

"The complainant must establish the very contract set up in the bill—and all acts of part performance relied upon to take the case without the operation of the Statute of Frauds must be clear and definite, and refer exclusively to the alleged agreement." Ches. & Ohio Canal Co. vs. Young, 3 Md., 490; Mundorff vs. Kilbourn, 4 Md., 462; Stoddert vs. Bowie, 5 Md., 35; Billingslea vs. Ward, 33 Md., 51-52; Nunn vs. Fabian, 1 Chancery App., 35 (L. R.;) Shillibeer vs. Jarvis, 8 De G. M. & G., 79.

Has the complainant made out by clear and satisfactory proof the existence of the contract as alleged?

The proof upon this point is uncontradicted and conclusive.

Wilson C. Nicholas, testifies that after Semmes had left his uncle, Richard J. Worthington's place, (the real estate in controversy,) Franklin Slade was employed by Mr. Worthington to manage the farm. In a few days Worthington became dissatisfied and was anxious that Semmes should come back. He went to Nicholas and authorized him to go to Semmes and say that if he would come back and "attend to his business as he had done before he went away, that he, Mr. Worthington, would leave him Bloomfield at his death, and if he did'nt, he should never see a damned cent of his property." Nicholas made known to Semmes the proposition—reasoned with him about it—urged him to accept it—and finally Semmes agreed to accept the terms offered, and did go back and take charge of the place upon the very terms proposed and none other. It became necessary then to get rid of Slade. The services of Nicholas were again invoked, and after some negotiation Slade was induced to leave, Semmes paying him in money and provisions one hundred dollars.

The testimony of so unimpeachable a witness as Nicholas, ought, standing alone, to be sufficient to prove the contract; but he is thoroughly and entirely corroborated by...