Carr v. Hobbs

Tuck, J., delivered the opinion of this court. This bill was filed by the appellee’s intestate, Isaiah Bell, in his life time, against the administrator and heirs of Jesse Bell, to enforce payment of the purchase money of a parcel of land which the former had sold to the latter, and conveyed by deed dated the 20th of September 1843. The consideration of one thousand dollars is acknowledged, in the deed, to have been paid; and there is endorsed thereon a receipt to the same effect. It is alleged, in the bill, that the real consideration was eighteen hundred dollars, as it was estimated, that is to say, one thousand thereof to be paid in money, and the balance by boarding and maintaining the grantor; but there is no reason shown why this part of the consideration was not mentioned in the deed. This statement in the bill is not sustained by evidence; but the complainant’s witnesses prove that Jesse Beil admitted to them that the true consideration was six hundred dollars in money, and that he was to support his father during the residue of his life. Evidence was also offered that the consideration, with exception of the maintenance, had been paid. The court below adopted the admissions of Jesse Bell, as to the consideration, and decreed payment accordingly, after allowing the defendants credit for the use and occupation of the land, which was in possession of the grantor from a short time after the deed until his death. The acknowledgment and receipt for the purchase money being only prima facie evidence of payment, (Higdon vs. Thomas, 1 H. & G., 139,) the appellee seeks to rebut the presumption, by showing the pecuniary condition of Jesse Bell, his inability to have paid so large a sum of money, and admissions made by him, that he had not paid for the land. We consider the evidence sufficient, laying out of view the testimony of Isaac Bell, on which very little, if any, reliance can be placed. We do not intimate that this witness stands impeached, but we think he must have been in error as to the matters of which he speaks, touching this alleged payment. There is confusion in his testimony which cannot be reconciled with the idea that Jesse Bell ever paid this money, and [294] he admitted, to the other witnesses, that he had not paid it. This view of.the case is supported by other circumstances proved in the record. If he had paid for the land, we do not suppose he would have left it, and remained away until the time of his death, allowing the grantor to remain in possession, while he was toiling elsewhere for the support of his family. On the contrary, he said he had left the place, that he and his father could not live together, and that he wished him to pay the expense of the deeds, and take the land back. The purchase money being due, we are to consider what it was, and how its payment can be enforced. Bills of this kind are of the nature of those for specific performance of contracts. Elysville Co. vs. Okisko Co., 5 Md. Rep., 152. There ought to be certainty.in the agreement, and it should be proved as alleged in pleading. 3 Md. Rep., 480, Canal Co., vs. Young. 4 Md. Rep., 459, Mundorff vs. Kilbourn. 5 Md. Rep., 18, Stoddert vs. Bowie's Exc'r. Here the bill relies upon one consideration, the proof shows another, while the deed states one different from both these. We have only the declarations of the grantor, as made in the bill, and those of the grantee, as proved by witnesses. If the statement in the bill were thus established, we should merely have to decide whether admissions by the parties of the same consideration, should prevail over the deed; but here they do not agree. Solemn instruments are not to be lightly dealt with. They are supposed to furnish the best evidence of the mind of the parlies, though, in some cases, they will be allowed to have effect against their literal meaning; or rather, a different agreement will be enforced, as where fraud or mistake is alleged and proved, which is not the predicament of these parties. The deed, for aught that appears, was drawn as it was designed to be, but the allegation is, that something beyond the sum stated was intended as an additional consideration. If the bill states the transaction correctly, then the parties did not assent to the same thing. Probably board and maintenance of the grantor was part of the agreement; but the question is, whether it was additional to, or part of, the money consideration ? This latter idea, perhaps, Jesse Bell meant to convey when he conversed with his brothers. [295] But, independently of the want of certainty as to the consideration, if we look to the grantor’s statement in the bill, contradicted as it is by Jesse Bell’s, relief could not be decreed on the proof of the grantee’s admissions, because the bill is not framed upon that state of case, and the admissibility of these admissions has been excepted to, whilst there is nó exception to the deed as evidence. Now, differing as the parties to the deed appear to have done, as to the parol consideration, and there being no evidence of either statement, even if such were admissible to control the deed, on which point we express no opinion, we think the written expression of the parties, about which there can be no mistake, should be accepted as the safest guide. By this standard of proof we shall avoid the risk of violating the policy of the law as to written and parol evidence, and, probably, reach the justice of the case as nearly as if either the view of the grantor or grantee were adopted as to the consideration. It thus becomes unnecessary to determine whether the board and maintenance claimed, can be recovered as additional to the consideration contained in the deed. Next, as to the claim itself, that is, whether it be a lien or not. The record shows that Jesse Beil’s personal estate has been administered, and that the balance in the hands of the administratrix, after paying the others, was not sufficient to • pay this claim. As that balance was distributed to the widow and children, we may suppose there are no other creditors except this complainant. We are, therefore, relieved from considering the preference of such a claim, for unpaid purchase money, over creditors becoming such after the deed is placed upon record. That it is a lien as against the vendee and those claiming under her, has been affirmed in England, and recognized by the Court of Appeals, in Schnebly vs. Ragan, 7 G. & J., 120, where it is said: “A vendor parting with the legal title, still retains-his lien as a security for the payment of the purchase money, and the vendee holds the land as trustee for the vendor. Prima facie the equitable lien exists, and it lies upon the vendee to show a waiver of it. 1 Johns. Ch. Rep., 308. So, on the other hand, if the purchaser of an estate [296] prematurely pays the purchase money, before the estate is convejred to him, the money will be considered as a lien on the estate in the hands of the vendor, for the vendee, or, in case of his death, for his personal representatives. 2 Madd. Ch., 104, 105.” We dissent from the decree, in so far as it affirms the correctness of the auditor’s account, as to the amount allowed the complainants, which, as we have said, should have been charged against the defendants at one thousand dollars, with interest, crediting them with the annual valuation of the premises while in possession of the grantor, upon which, as allowed by the auditor, no point was made at the hearing, and we take it to be according to the proof. As the personal estate appears to have been settled, this claim may be paid out of the proceeds of the land, without remarshalling the assets, thereby saving expense without affecting the ultimate result. Generally, the lien could not be enforced until the remedy against the personalty had been exhausted, but here the interests of the defendants will be consulted by looking at once to the realty. Without reversing the decree, the cause will be remanded, in order that another account may be taken as to the amount due, and for further proceedings under the decree. Act of 1832, ch. 302, sec. 6. Each party to pay his own costs on the appeal. Cause remanded.