Shipley v. Fink
| Decision Date | 23 November 1905 |
| Citation | 62 A. 360,102 Md. 219 |
| Parties | SHIPLEY v. FINK. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Carroll County; Wm. H. Thomas, Judge.
Suit by Charles E. Fink against Grove A. Shipley. From a decree for plaintiff, defendant appeals. Reversed.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.
Jas A.C. Bond, for appellant.
Charles E. Fink, for appellee.
This appeal is from a decree of the circuit court for Carroll county, enforcing specific performance of an alleged contract for the conveyance of real estate.
Charles E. Fink and Henry B. Reigel in the year 1899 were owners of adjoining properties in the town of Westminster; the property of Mr. Fink being then in the tenancy of John T. Thompson since deceased. Both these properties were improved by brick dwellings; that of Mr. Reigel being three feet and three inches south of the dividing line between the two properties which line ran at right angles to Pennsylvania avenue, upon which the lots fronted, and the dwelling upon Mr. Fink's property being about five feet from said dividing line. Thompson, desiring to go into business as a butcher, arranged with his landlord for the erection of a meat shop upon the space between his dwelling and the said dividing line, to stand upon said line, and to run back to the rear of Thompson's dwelling, where it was to be widened, so as to give additional room and convenience for the business. This would have darkened the dining room window of Reigel's property, and upon discovering this fact Reigel, as the plaintiff alleges in his bill, "earnestly solicited the plaintiff not to extend said building so far back as to interfere with the light to his said window, and offered to give the plaintiff the land between Reigel's house and the dividing line, from the west side of said dining room window to Pennsylvania avenue, and the use of the wall on the north side of his said house for the same distance, *** provided the plaintiff would not erect a building on said line of division opposite said window, so as to cut off or interfere with the light to said window, which offer was accepted by the plaintiff," who in consequence changed the plan of said building accordingly, "and the plaintiff took immediate possession of said strip of land, and said building was immediately erected, in accordance with said agreement, upon the space between the two said houses and against the wall of said Reigel's house; the dimensions of said building being about 8 1/2 feet wide by 21 1/2 feet deep, and not extending further back than the western edge of said dining room window." Reigel died in November, 1900, and his said house and lot was sold in February, 1903, under a decree of the circuit court for Carroll county, and was conveyed by the trustees under said decree to the purchaser, the defendant, being described in the advertisement as containing one-fourth of an acre, more or less, without giving the lines, though at the sale it was stated to front on Pennsylvania avenue 60 feet, with a depth of 198 feet, and being conveyed to the defendant by metes and bounds conforming to said statement, and being designated in said deed as lot No. 3 of Hopper's addition to Westminster; the plaintiff's lot being lot No. 4 of Hopper's addition. No reference was made in the advertisement, or at the sale, to the said meat shop, or to any agreement or understanding under which the same was built partly upon Reigel's land.
The defendant demurred to the plaintiff's bill, and the court overruled the demurrer. We think this ruling was correct. Upon demurrer a bill should not be dismissed, if by any reasonable construction of the language of its averments a case is stated entitling the plaintiff to the relief sought; and we think the allegation of an agreement "to give the land" may be construed as an allegation of an agreement "to convey the land," under which proof may be offered of such an agreement. Upon the overruling of the demurrer the defendant answered, denying the alleged agreement between plaintiff and Reigel, and averring that he was a bona fide purchaser for value, without notice of any claim of the plaintiff, and that plaintiff stood by and saw said property sold, without setting up any claim. He also relied upon the statute of limitations and the absence of any written contract or deed, and admitted that after giving notice to plaintiff to remove that part of said building which was erected upon his land, and plaintiff's failure to comply with said notice, he began to tear down and remove said part of said building, as alleged in plaintiff's bill, until stopped by the injunction issued thereunder.
We have carefully examined the testimony to determine if it will warrant us in finding an agreement to convey the land, and will briefly state the substance of the evidence upon this question. Mrs. Thompson, the widow of the tenant of Mr Fink's property, says: That her husband went to Reigel and told him in her presence that he was too ill to keep up his trade. That he was going to put up a meat shop on the demised premises, with his landlord's consent, and stated how the building would be located, and that he did not want Reigel to think hard of him. That Reigel said: That her husband said he would see Mr. Fink about it, and afterwards told Reigel Mr. Fink said it was all right, and he should go ahead and build the shop, which he did, and that Mr. Fink allowed him for the labor and material out of his rent. That nothing was said as to when Thompson was to remove the shop, or for what period of time he was to have the land. James H. Thompson, a son of John T. Thompson, said his father told Reigel he was going to put the building on the line and run it back, and Reigel said: There was nothing said as to the time his father should have the land, only, "I will give you this land for your shop, but don't run it past my window." His father said he would see Mr. Fink, and later told Reigel Mr. Fink said: Mrs. Sheeler, who lived next to Reigel, says Reigel told her they were going to build a butcher shop on the avenue, and it would be handy, and that "he gave him the right of way, the privilege to put the building partly on his land." Mr. Whitmore, who lived opposite to Reigel, says that, while the shop was being erected, Reigel told him that he told Thompson, if he would not go past his dining room window, "he might have that space," but he did not say how long he was to have it. Mr. Bankert, a near neighbor, says Thompson told him he was going to have an opposition to Whitmore, and just then Reigel came up and said the ground was no use to him, and he would rather have Thompson build there; but there was nothing said about deeding the land, or how long Thompson was to have its use. Mr. Wymert, another neighbor, says that, when the lumber was on the ground, Reigel said he had told Thompson that, if he would not go past his window, Mr. Fink testified that Thompson informed him "that Reigel said he would give the entire space between his brick house and the southern line of my lot, and the use of the wall of his brick house, if the building was not extended further back from the avenue than the nearest window to said avenue, which was his dining room window," and that he accepted the proposition, and the building was erected accordingly. He did not state there was any offer to convey the land, or any reference by any one to a conveyance, and there is nothing in the record to show that there was any personal communication upon this subject at any time between Reigel and Mr. Fink. There was no other testimony relating to the agreement or understanding as to the erection of the building upon Reigel's land, and we do not think...
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