West Boundary Real Estate Co. v. Bayless

Fowler, J., delivered the opinion of the Court. We announced at the conclusion of the opening argument of the appellant’s counsel in this case that it was out opinion that the order sustaining the demurrer to the plaintiff’s bill should be affirmed, and some of the grounds on which that opinion was based were then briefly expressed by the Chief Justice. Counsel for appellant at once filed a motion for reargument, which is based upon the case of — 504 — Busey v. McCurley, 61 Md. 436, which was not cited either in the briefs or oral argument, and he contends that by the decision in the case cited it has been in effect adjudicated: “First. — That a contract to erect a dwelling of a given cost is sufficiently definite to support a bill for specific performance. . “ Second. — That if the defendant had parted with the title to the land upon which the dwelling is to be erected, the Court will grant compensation to the plaintiff in lieu of specific performance.” A careful examination of that case will show, however, that it does not support the contention of the appellant. The contract sought to be specifically enforced in the case now before us, is to erect on a certain lot a dwelling house costing not less than four thousand dollars. In the case relied on, the bill was filed to enforce a stipulation in an ante-nuptial contract, by which James McCurley, the testator of the appellants in that case, agreed that his wife, if she should survive him, should receive, at his death, from his estate, “ one dwelling house, to be vested in her absolutely, in lieu of dower,” and in consideration therefor she resigned her dower and distributive share in his estate. It appears that the husband left an estate valued at about one hundred thousand dollars, and by his will he disposed of the whole of it, and bequeathed a small leasehold dwelling house, worth two thousand dollars, to his wife, in discharge of his agreement with her. She renounced this bequest and claimed a certain dwelling on West Baltimore street, which she alleged was built for her and was designed to come to her in the event of her surviving her husband. This dwelling house, however, had been devised to one of the testator’s daughters by a former wife. The case stated in the bill, therefore, was simply this : That the husband had agreed to make provision for a dwelling house for his wife by will; that he had built and designed a particular house on Baltimore street, in Baltimore City, for her, and that he had not only failed to devise to her the house designated, — 505 — but that the bequest he made to her was simply illusory, and was made with a studied design of depriving her of what was really intended originally she should have. It was shown by the proof that the husband did in fact select the particular house mentioned in the bill, as the one intended for his wife, and that it was worth about $6,000. Under these circumstances the Court said, “ there certainly ought to be a remedy for the grievance suffered by the widow, if the case stated in the bill be clearly made out.” And notwithstanding the fact that the dwelling house she was to have had been clearly designated, as shown by the proof, it was held that specific performance of the contract would be attended with no little difficulty, and that as there had been no special objection taken to the jurisdiction of the■ Court to grant relief by way of compensation, that was perhaps the most just and equitable mode of administering relief under the peculiar circumstances of the case. The English cases cited in Busey, Ex., v. Me Curley, supra, cannot, we think, be fairly relied on to support the contention of the appellant in this case. They and many others do fully support the general proposition announced in 61 Md.: “That a Court of Equity has jurisdiction, upon application for specific performance, to decree the assignment of a particular house, or the erection or purchase of a house, to gratify the requirements of the contract sought to be specifically performed.” The Court, however, is careful to limit this general statement of the rule, and proceeded to say: “ But in all such cases the agreement must be sufficiently definite to guide the Court in the direction to be given for specific performance, or, at any rate, that it may be made certain and definite upon proper inquiry.” And it must be remembered that in the case relied on the Court had the case not only of a house of the value of six thousand dollars, but it had the additional fact that the very house designated by the husband himself was a certain house on Baltimore street, in Baltimore City. What was indefinite and uncertain in the contract was made definite — 506 — and certain by proper inquiry, that is to say, by the evidence in the cause. But as the case in hand now stands we have nothing but the general and indefinite language of the contract, nor has it been suggested that there is any proper inquiry we could resort to make that contract so definite and certain that it may be specifically executed by a Court of Equity. Although in Busey's case, supra, relief was granted by way of compensation, because of the peculiar circumstances of that case, and also because no special objection was taken to the jurisdiction of the Court so to do, yet, at the same time, the rule was clearly laid down that the power to grant compensatory relief will not be exercised in all cases for specific performance. “ That power, as a general rule, exists only as ancillary or incidental to the power to grant other reliefUnder Act of Parliament, 21 and 22 Victoria, chapter 27 (Lord Cairn’s Act), section 2, it is provided that “ in all cases in which a Court of Chancery in England has jurisdiction * * * for specific performance, it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for * * * such specific performance ; and such damages shall be assessed in such manner as the Court shall direct.” Our rule, however, is, as laid down in Busey's case, 61 Md. 448, that in cases of specific performance it is only “ under special circumstances, and ' upon peculiar equities, as for instance in cases of fraud, or where the party has disabled himself by matters ex post facto from a specific performance; or where there is no adequate remedy at law that the Court award pecuniary compensation in lieu of other relief.” In deference to the earnest and able argument, oral and written, submitted on the part of the appellant, we have thus considered some of the questions presented other than the one we shall now proceed to discuss briefly, and which, in our opinion, is conclusive of the whole matter. Subsequent to the correspondence between the plaintiff and the — 507 — said defendant, Bayless, which constitutes the contract here sought to be enforced, a deed for the lot in question was executed by the former to the latter, and the question is whether the previous parol contract is or is not merged in the subsequent deed. The general proposition is well settled that parol evidence cannot be “ used either at law or in equity for the purpose of contradicting, adding to, subtracting from or varying the terms of a deed, or controlling its legal operation and effect, except where it is impeached for fraud, or where it is sought to be reformed upon the allegation of fraud, accident or mistake.” Bladen v. Wells, 30 Md. 581. It is true there is another exception, as for instance, where it clearly appears that it was the intention that the deed was only a part of the execution of the contract. See Newbold v. Peabody H. Co., 70 Md. 499, where it was expressly stipulated in the agreement that the restrictions and reservations contained in the contract should be complied with and carried out as if embodied in the deed. In Bryant v. Hunting, 71 Md. 443, the general doctrine is thus announced: “ The prima facie presumption of law arising from the acceptance of a deed is that it is an execution of the whole contract, and the rights and remedies of the parties in relation to such contract are to be determined by such deed, and the original agreement becomes null and void.” The case of Linthicum v. Thomas, 59 Md. 574, cited by the appellant, has, we think, no application here. That was an appeal from a decree setting aside a deed and contract for exchange of property on the ground of fraud. Is the case beiore us an exception to the general rule, and can the contract and the deed stand together ? It appears that on the 16th of June, 1893, the president of the appellant wrote to the defendant, Bayless, that he had been instructed by his company “ to accept the proposition of Bayless for the sale of the lot in question.” Then followed a stipulation in regard to the opening of a street and the putting of improvements nearer than thirty feet from the — 508 — westernmost or rear boundary of the lot; and the letter continues : “ In other respects the lot is sold to you upon the ordinary terms and under ordinary restrictions which are contained in the printed deed, of which I enclose you a copy. You are to pay for the property as follows : $1,200 cash. You are to deliver up to the company 80 shares of its capital stock. You agree to erect a dwelling upon the lot costing not less than $5,000, and have it ready for occupancy within one year from 1 July, 1893.” On the next day Mr.'Bayless replied as follows: “Your letter of the 16 inst. received and contents noted. I accept your proposition as to sale of lot, except that the dwelling is to cost not less than $4,000 instead of $5,000.” This was the end of the correspondence, and it may be doubted whether there was ever a completed contract formed. But assuming that it was a completed and valid contract, what was the effect upon it of the subsequent deed, which was executed on the 3rd of July, 1893, by the plaintiff to the defendant, Bay less, conveying the same lot described in the contract? The consideration set forth in the deed is $5,200, and it also provided that the grantee, his heirs and assigns, should not, within ten years from the date of said deed, erect on said lot any dwelling house costing less than three thousand dollars, and within the same time he should not build any improvements nearer than thirty feet to the front building line. It is impossible, we think, looking at these two instruments, to suppose they were intended to stand together. The consideration in the contract is $1,200 cash and 80 shares of the capital stock of the appellant corporation, while the consideration in the deed is $5,260. The contract provides that no improvements shall, within ten years, be erected nearer than thirty feet to the rear building line ; the deed provides that none within the same time shall be erected nearer than thirty feet to the front building line; and, finally, the deed provides that the grantee, &c., shall not, within ten years, erect on said lot a dwelling costing less than $3,000, while the agreement declares that he shall, before the first of July, — 509 — 1894, erect on said lot a dwelling costing not less than four thousand dollars. It would seem, therefore, that the contract, as understood and alleged by the appellant, is entirely inconsistent with the deed in several important particulars. We find nothing which clearly shows that'the deed was only a part execution of the contract; but, on the contrary, it appears very clear that it was the intention of the parties, so far as we can ascertain that intention from the alleged contract and the deed, that the latter was to take the place of all antecedent negotiations, and it follows that even if a valid contract had been made, it became, after the execution of the deed, void and of no further effect. As was said by the late Judge Miller, in delivering the opinion of this Court in Bladen v. Wells, supra, “ if a party after conveying by deed * * *' can set up an antecedent or accompanying parol contract contradicting the deed * * * there would be vety little room for the operation of the rule and very little security or safety in such instruments or in titles held under them.” (Decided February 28th, 1895.) Decree affirmed.