DuVal v. Wilmer

Bryan, J., delivered the opinion of the Court. The appellant filed a bill in equity, praying for a decree to set aside a deed. The appeal was taken from the decree dismissing the bill with costs. — 72 — We will state the particulars of the controversy, and the facts upon which, in our opinion, its merits depend. On the seventeenth day of October, eighteen hundred and eighty-five, DuVal and Hanes executed an agreement in duplicate, under their respective hands and seals. The agreement was in the following words: “ Memorandum of Agreement between Gabriel DuVal and J. B. L. Hanes. The said DuVal and Hanes have this day bought the leasehold interest in seventeen lots of ground on Kensett str., between Mary and Francis street, in Baltimore county, from Mrs. Elizabeth Fear, the title to said lots to be put in DuVal’s name. The sum to be paid therefor is $3,400 cash. DuVal furnishes $500 and Hanes $500; and DuVal is to borrow $2,400, at 6 per cent., for which he is to be allowed by Hanes 1% per cent. com. on the loan. The lots and houses are bought to be sold for the joint benefit equally of DuVal and Hanes, and excepting the foregoing item, they are to equally share any and all losses, expenses and profits. DuVal is to do all necessary legal and conveyancing work, and Hanes all the work in his line as real estate agent in selling the houses, collecting the rents, &c., free of charge. As each lot is sold $150 is to be first appropriated out of the proceeds to the reduction of the $2,400 loan until the whole is paid. Signed in duplicate, this 17th of October, 1885.” The leasehold property was bought; DuVal contributed twenty-nine hundred dollars of the purchase money, and the legal title was conveyed to him; no mention being made in the deed of any interest in Hanes, or any other person whomsoever. The agreement shows on its face that the property was bought for the purpose of being sold for the benefit of DuVal and Hanes; and with the exception of the sum of twenty-four hundred dollars, they were to share equally “ any and all losses, expenses and profits.” DuVal took possession of the property immediately after the execution of the deed, and has ever since held uninterrupted and exclusive possession of it. None of the property has been sold. O11 the first day of February, eighteen hun — 73 — dred and eighty-seven, DuVal and Hanes executed in duplicate under their hands and seals the following paper: ■ “ Feby. i, 1887. “ In a settlement made this day, between the undersigned, of the purchase of seventeen houses on Kensett str., purchased under an agreement between them, executed October 17, 1885, the undersigned Gabriel DuVal has purchased from the undersigned, J. B. L. Hanes, all his right and interest in said houses, and the said Hanes hereby acknowledges himself fully paid for the same, and hereby relinquishes and assigns to the said DuVal all his right and interest whatsoever under the said agreement of October 17th, 1885, to or in the said property, or to or in the income and profits derived from the same. Witness our hands and seals.” It is stated in the testimony of both DuVal and Flanes, that long previous to that date Hanes had ceased to have any interest in these houses. In answer to the thirteenth interrogatory DuVal says: “ As a matter of fact, a settlement was had between us some months previous to this; Mr. Hanes, a short time after the purchase of the property by us, had drawn out his $500 interest in it, which I had paid him; I had asked him to return to me the duplicate of the agreement, which is plaintiff’s Exhibit Examiner No. 3, which he had promised to do from time to time, but finally saying first, that he had failed to find it at his office or at his house, he then said he was satisfied it must be either accidentally destroyed or lost, and he then give me this paper last filed.” In answer to the fourteenth interrogatory he says: “ Mr. Hanes had ceased to have any interest in the property some months previous to the execution of this paper, perhaps seven or eight months, and this was only executed after he had given up the search for the original agreement.” In answer to the fifteenth interrogatory he says that Hanes had no interest in the property in November, eighteen hundred and eighty-six. In answer to the sixteenth interrogatory he says: “ I have a due bill from Mr. Hanes to me, dated December 2Tst, 1885, — 74 — for $300, which I loaned him by check, which I gave him, which due bill and cancelled check I file with the Examiner as plaintiff’s Exhibit Examiner No. 9; at the time of lending- him that money, I had previously paid him back the $500 which he had, or was supposed to have paid Mr. Fear, as his interest in the property, and this $300 loan to Mr. Hanes was over and above any balance of interest that he might still have at that time in the purchase, whether Mr. Hanes ever actually paid Mr. Fear his $500 I don’t know; I assume that he did, and therefore paid it back to him when I bought his interest out.” Hanes corroborates this testimony in his answers to interrogatories nineteen, twenty-nine, and cross interrogatories fifty-two, fifty-three and eighty-seven. He says emphatically that he had verbally settled with DuVal about a year before the written settlement was signed. In his answer to the eighty-seventh cross interrogatory, speaking- of this paper, he says: “I had already readjusted all right and title to the property when we settled, simply verbally about a year before.” An alleged copy of an account between DuVal and Hanes was offered in evidence by defendant. It is marked “ Defendant’s Exhibit Examiner, No. 4.” It was evidently made out subsequently to the purchase of Hanes’ interest by DuVal, although it is neither signed nor dated. An exception was filed to the admission of the account in evidence, and very clearly it was not competent in the absence of the usual effort to obtain the original. But assuming it to be properly in evidence, we may say that it is not inconsistent with the purchase, that the parties should subsequently make a statement of their dealings with each other, or that they should have other business together. On the twelfth day of November, eighteen hundred and eighty-six, Hanes conveyed by deed to Edwin M. Wilmer all his interest in the seventeen lots which had been purchased by DuVal for their joint benefit, and also another lot purchased by DuVal from Boston Fear and wife in which Hanes never had an interest. This deed was recorded July the twenty-eighth, eighteen hundred and — 75 — ninety, nearly four years after its execution. The duplicate of the agreement between DuVal and Hanes which had been delivered to Hanes was recorded with the deed. The testimony tends to show that this paper was delivered to Wilmer at the time of the execution of the deed. Hanes in his testimony states that he was drunk when this deed was executed, and that he recollects nothing about it. Other testimony, however, denies that he was in any degree intoxicated. It is conclusively shown that DuVal had no knowledge of this deed until it was recorded. DuVal had the absolute legal estate in the seventeen houses purchased in pursuance of the agreement with Hanes; although Hanes had an equitable interest in the property. Long before the deed to Wilmer all' bf the equitable interest had been purchased and paid for by DuVal. The purchase was made by parol, and the execution of any paper writing was deferred in consequence of the circumstance which we have stated. We do not suppose that any one doubts that a Court of Equity will decree specific performance of a parol contract relating to land when it has been fully performed on one side. In the present case DuVal was in undisturbed possession of the land by the consent of Hanes, and he paid Hanes in full for his interest. He had fully performed everything to be done on his part, and nothing remained to complete his title except the execution of a conveyance by Hanes. In Alexander v. Ghiselin, 5 Gill 181, the Court asks this question: “Who doubts the authority of a Chancery Court to direct a conveyance, where the party in possession under a bond of conveyance has paid the purchase money? ” If the contract of purchase could be enforced against Hanes, it is enforceable against Wilmer, unless he has acquired by his deed rights superior to those which belonged to his grantor. Let us consider this question. In Hardy v. Summers, io Gill and Johnson 316, it appeared that Jonathan Hardy had died intestate leaving two daughters, his only heirs at law, and that they agreed by parol to make partition of his lands. The partition was ac — 76 — cordingly made, and a bond was signed and sealed by the two heirs binding themselves to abide by the partition and they entered into possession accordingly. Afterwards Ann, one of the heirs, sold and conveyed to Thomas Talburtt all her interest in her father’s real estate. Talburtt applied to the County Court for a commission to divide the lands of the deceased; they were divided by the commissioners, but not in the manner which had been agreed upon by the heirs, and the partition was ratified and confirmed by the Court, against the objection of Mary, the other heir, and her husband, James C. Summers. Summers and wife obtained an injunction from the Court of Chancery to restrain Ann and Talburtt from interfering with or entering^upon the land held by them. This Court, considering on appeal the objections to the injunction, said: “ The next reason for the reversal of the Chancellor’s order is that the defendant, Talburtt,” (the vendee) “ is a bona fide purchaser without notice of the agreement entered into by Ann and her sister, or the proceedings under it, and as such must be protected in a Court of Equity against such agreement and proceedings. But this defence, if properly pleaded, could not avail the defendant, Talburtt. The actual possession of the complainants, according to the agreement and division under it, is a sufficient intimation of their rights to have put Talburtt upon inquiry into their nature, and, failing to make it, he is, in equity, visited with all the consequences of a knowledge of their title.” In Baynard v. Norris, 5 Gill 482, the defendants set up in their answer the defence that they were bona fide purchasers without notice of the complainant’s claim. This Court said: “ The answer has altogether omitted to state one fact, which is essential to the validity of a plea, that the defendant is a bona fide purchaser, &c. Wherever the estate conveyed is one to which possession is incident, and is not a mere dry remainder or reversion, it is indispensably requisite to the validity of such a plea, that it should state that the grantor or mortgagor was, at the time of the conveyance, seized, or pretended to be seized, — 77 — and was possessed of the premises conveyed; as authorities for which, see Equity Draftsman, 449; 3 Sugden Vendors, 345-346; Daniels v. Davidson, 16 Ves. 249; Boone v. Chiles, 10 Peters 211.” DuVal’s possession was sufficient to put Wilmer on inquiry, and according to the well established rules, he will be presumed to have made inquiry, and he will be charged with every fact which inquiry would have given him. Being regarded as if he had full notice of DuVal’s title, he must make his claim in subordination to it. And inasmuch as DuVal held the entire legal and equitable estate in the seventeen houses, there was no interest in them, on which the deed to Wilmer could take effect. With respect to the other house (the eighteenth) Hanes never at any time had any interest in it. (Decided June 28th, 1898.) The evidence shows that the existence of Wilmer’s ■deed has caused doubts about the validity of DuVal’s title. On an occasion shortly before the filing of the bill when he had made an application for a loan on the security of the property, the loan was defeated because of an objection made to his title by counsel on account of Wilmer’s deed. As DuVal has the entire title, legal and equitable, and is in quiet and undisturbed possession, he ought to be protected from all unneccessary .annoyance and embarrassment in disposing of his property. The most complete and eligible mode to effect this result is to pass a decree declaring Wilmer’s deed null and void, and setting it aside. Following the precedent set by this Court in Polk v. Rose, 25 Md. 153, we shall make such a decree. Decree reversed with costs above and belozv, and decree annulling Wilmer’s deed.