Withers v. Douglas

• Decision Date: 14 January 1955
• Docket Number: No. 71,71
• Citation: 110 A.2d 513,206 Md. 141
• Parties: George WITHERS v. Mary E. DOUGLAS.
• Court: Maryland Court of Appeals

Page 141

206 Md. 141

110 A.2d 513

George WITHERS v. Mary E. DOUGLAS.

No. 71.

Court of Appeals of Maryland.

Jan. 14, 1955.

Solomon B. Levin, Baltimore, for appellant.

D. Sylvan Friedman, Baltimore, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The chancellor determined that there had been a valid, though informal, gift of an interest in a chattel real by one co-owner to the other, and George Withers, who had been constituted the unwilling donor, appealed. He and Mary E. Douglas, the appellee, had lived together as husband and wife without benefit of clergy, from 1930 until the later part of 1949 or the early part of 1950, when he left her. Four children were born to them, three of whom survived. In 1944, the couple, who held themselves out as man and wife, purchased a home in Baltimore for $1,300, taking title as tenants by the entireties and executing a mortgage to a building association for $1,040. After the appellant left home, the appellee continued to live there with the children. When he left, some $400 was due on the principal of the mortgage, which the appellee paid, as she did not interest, taxes and ground rent. The appellant says all payments were made with money he sent her. She says the amount was far less than he claims and was sent and used for the support of the children. Withers testified that after he left her, the appellee made life miserable for him by bounding him for mony wherever he went and that it was this which behind the expressions in three notes he wrote her. The first was sent in April, 1951. It said in part: 'You will better sell the house and get the money for it. I will sign it over to you.' A year later, he wrote: 'I am paying no more the house is yours--do what you want with it.' A month later, he wrote again: 'Here is 50 Dollars I cant give anymore--the house is yours so Pleas dont Bother me--I pay no more.' In fact, he continued to send substantial sums after each of the notes.

Several months after the first note in 1951, the appellee's mother spent $200 in having the walls of the house damp proofed, and the appellee had some papering done.

In 1953, the appellant filed a bill for the sale of the property. Unless he had given away his interest, the remedy he sought would have been available to him under Code 1951, Art. 16, § 170, as a co-owner (it is not necessary to decide whether he was a joint tenant, a tenant in common with right of survivorship, or a tenant in common; Michael v. Lucas, 152 Md. 512, 137 A. 287; Mitchell v. Frederisk, 166 Md. 42, 170 A. 733, 92 A.L.R. 1412, 1420; Hutson v. Hutson, 168 Md. 182, 177 A. 177; Donnelly v. Donnelly, 198 Md. 341, 84 A.2d 89). That the property was acquired as an incident to an illicit relationship, would not, under the circumstances, defeat his right to require a sale. Maskell v. Hill, 189 Md. 327, 335, 55 A.2d 842.

After the decree had been passed for the sale of the property, the appellee, with leave of court, filed a cross-bill in which she alleged that appellant 'had abandoned and voluntarily surrendered and given to your Complainant any interest he had in said property' and prayed that a trustee should be appointed to convey to her absolute title to the property. The chancellor dismissed the bill and granted the relief prayed in the cross-bill.

It is conceded, as it must be, that the letters relied on by the appellee do not meet the requirements of Code 1951, Art. 21, § 1, so as to convey an interest in real estate. Standing alone, writings ineffective under the statute, will not be given effect in equity. Berman v. Berman, 193 Md. 614, 69 A.2d 271. In that case, those claiming as donees did so by virtue of a deed which had been signed, sealed and delivered to them by the donor, who had declared in the presence of witnesses, that it was his intention to give them the property. The deed was not acknowledged. The donees never had possession of the property described and intended to be given. The Court said that there was no gift, since the writing relied on was void. The appellee here relies not only on the letters to show an intent to give, but on possession of the property given and the making of valuable improvements to the property--all in reliance on, and pursuant to, the gift. It is true that equity protects a parol gift of land if accompanied by possession and the donee, inducted by the promise to give it, has made valuable improvements on property by the expenditure of labor or money. The inprinciple involved and the tests applicable are similar to those which underlie and control the doctrine of part performance in cases of contract as sell land which do not meet the requirements of the statute of frauds. Hardesty v. Richrdson, 44 Md. 617, 624; Miller, Equity Procedure, Sec. 671, p. 777; Restatement, Restitution, Sec. 164, p. 666; Pomeroy, Specific Performance of Contracts, 3rd Ed., Sec. 130. The tests as to part performance require that the proof must be clear, definite and conclusive, both as to the fact of the gift and as to the acts done, as well as that the acts had been done on the strength of the gift only, so that any attempt by the donor to avoid the gift would be inequitable to the point of fraud. Hardesty v. Richardson, supra; Soehnlein v. Pumphrey, 183 Md. 334, 336, 37 A.2d 843; Polianski v. Polianski, 138 Md. 598, 114 A. 571; Whitaker v. McDaniel, 113 Md. 388, 78 A. 1; Chamberlain v. Preston, 170 Md. 1, 182 A. 579; Jaworski v. Jaworski, 202 Md. 1, 95 A.2d 95. See also Reinhardt v. Fleming, 18 Wash.2d 637, 140 P.2d 504; and the annotation in 155 A.L.R. 73, 76.

The tests as to whether the acts of part performance are referrable only to the contract or gift are discussed in Semmes v. Worthington, 38 Md. 298, 327, where the Court pointed out that the 'partial and subordinate possession' of the claimant was an equivocal act 'susceptible of a variety of interpretations'. The Court said: 'The act relied on as part performance must, in itself furnish evidence of the identity of the contract; and it is not enough that it is evidence of some agreement, but it must relate to and be unequivocal evidence of the particular agreement charged in the bill.' See also Chespeake & Ohio Canal Co. v. Young, 3 Md. 480; Mundorff v. Kilbourn, 4 Md. 459; Boehm v. Boehm, 182 Md. 254, 264, 34 A.2d 447; Soehnlein v. Pumphrey, suppra.

Another such test is applied in Rosenthal v. Freeburger, 26 Md. 75, 80,--that continuance of possession, taken before the contract or gift was made, is usually insufficient as part performance. In that opinion, the Court, speaking of possession of a tenant holding over, adopted the following language: "This is a mere continuance of the character which he all along filled, and any act which may be thus referred to a title distinct from the agreement cannot be considered as operating to take the case out of the statute." Howard v. Carpenter, 11 Md. 259, 276; Billingslea v. Ward, 33 Md. 48, 54; Boehm v. Boehm, 182 Md. 254, 265, 34 A.2d 447, supra. In West v. Flannagan, 4 Md. 36, extensive construction of marine railways at heavy expense by a tenant from year to year was held referrable to the tenancy and not as showing part performance of a contract or license for the use of the leased premises for an indefinite time. Pomeroy, in the work cited, says in Sec. 121 at p. 305, that possession, to be sufficient, must: '* * * in short, indicate the commencement of a new interest or estate * * *. The rule concerning exclusive possession applies with special force to tenants in common. Where a plaintiff claims as purchaser of land to the possession of which he and others are...