1. Under the laws of Maryland prevailing in the District of
Columbia, an interest in lands made by livery and seisin only, or
by parol, except leases not exceeding the term of three years, has
only the force and effect of an estate at will.
2. The Court applies to this case the doctrines announced in
Barry v.
Coombe, 1 Pet. 640, and
Purcell v.
Miner, 4 Wall. 513, as to what must be set forth in
a written contract for the sale of lands, and what is sufficient
part performance of a parol contract for such sale to take it out
of the statute of frauds.
3. There is nothing in this case to bring it by analogy within
the statute of limitations which govern courts of law.
In February, 1856, James Williams leased by parol certain land
in the City of Washington, the legal title to which stood in his
name, to Thomas B. Florence, with the privilege by the latter of
purchasing it for $6,000. In the following month, Florence entered
into possession as tenant of said James, and made certain
improvements. On October, 1856, Florence, having learned that the
heirs of John Williams were entitled to an undivided moiety of the
land, entered, with the consent of James, into a written contract
with them for the purchase of their interest, which by decree was
conveyed to him in 1864.
In April, 1853, and April, 1854, the property was sold for
taxes. One Ingle purchased it, and, after the period allowed by law
for redemption had expired, received deeds therefor from the
corporation of Washington, dated June 11, 1857. Florence, after
consultation with said James, paid Ingle the amount of the taxes
and accrued expenses Dec. 29, 1859, and some months thereafter took
from him a quitclaim for the property, which, with the corporation
deeds to Ingle, he caused to be recorded. From March 1, 1856, to
June, 1861, he remained in the personal occupation of the property.
He then rented it to the United States for $175 per month, which
rent he received until the commencement of this suit, Aug. 24,
1867, by the complainants, some of whom are minors. They are the
heirs-at-law of James Williams, who died intestate Aug. 15,
1862.
Page 95 U. S. 445
The bill, after setting up the lease by James Williams to
Florence, alleged,
inter alia, that the defendant during
his tenancy under the lease suffered by his default the property to
be sold for taxes, and, having acquired the tax title, disclaimed
his tenancy, and set up an adverse title in himself. It therefore
prayed that Florence be decreed to convey to the complainants said
tax title, and to account for a moiety of the rents and
profits.
The defendant answered, setting up his parol contract with James
to purchase, his subsequent discovery of the interest of the heirs
of John in a moiety of the property, the fact of his purchase with
the consent of James of that moiety, and its conveyance to him, and
denied that thereafter he stood in the relation of tenant or paid
rent; but, on the contrary, he paid all taxes and charges, and,
with the full knowledge and consent of said James, acted generally
as owner, and made repairs. He also alleged that said James had, by
certain deeds of trust executed in 1843 and 1851, encumbered his
moiety; and by another, executed in 1853, the whole property, in a
sum beyond the amount of purchase money and more than double the
share of James for his moiety. That, notwithstanding said
encumbrances, the defendant made various payments to said James,
amounting from $1,500 to $2,000, on account of said purchase, but
was unable to procure a settlement. The defendant filed with his
answer the following receipts:
"Received of Thomas B. Florence forty dollars, to be accounted
for in the settlement for the purchase of the property at the
corner of Pennsylvania Avenue and 17th Street, now in his
occupancy, and sold by me to him."
"JAS. WILLIAMS"
"WASHINGTON, Jan. 1, 1857"
"WASHINGTON, May 1, 1857"
"Received of Thomas B. Florence one hundred dollars, on account
of purchase of building 17th St. & Pa. Av. $100."
"JAS. WILLIAMS"
He also denied that he had suffered the property to be sold for
taxes, but that said sales were for taxes due for the eight years
preceding his entry.
On the 11th of March, 1873, the complainants were allowed
Page 95 U. S. 446
to amend their bill by alleging that Florence, in October, 1856,
purchased the undivided moiety of the heirs of John Williams, and
thereby became tenant in common with James Williams; that, after
said relation of tenants in common thus began, Florence purchased
from Ingle the outstanding tax title, which was in all respects
regular and according to law, and obtained from him a conveyance of
the premises and of the full title thereof, which conveyance and
title said Florence claimed to hold as his own, to the exclusion of
the complainants.
The answer to the amended bill admitted the purchase in October,
1856, of the claim of the heirs of John Williams under the
circumstances set forth in the answer to the original bill; denied
that such purchase created, or was intended to create, a tenancy in
common with James Williams; and averred that after the same, the
defendant held and enjoyed the premises as the exclusive and
absolute owner. It further denied the validity of the tax title;
averred it to be void on its face, and that it was bought, with the
knowledge and approval of James Williams, to relieve the property
from the outstanding charge for taxes; and that a deed was taken
from Ingle, because one to him had been entered on the books of the
city; and that the complainants' allegation of the validity of the
tax title was simply a pretext whereby to gain some color for the
asserted jurisdiction of a court of equity.
At the final hearing in special term, April 8, 1873, the court
decreed that the tax title purchased by Florence from Ingle was
taken by him in trust for the complainants to the extent of one
undivided moiety thereof, that the parol purchase set up by him was
void under the statute of frauds, and that, as there was no part
performance to take it out of the statute, he should convey to the
complainants said tax title to said moiety, and account for rents
and profits.
Florence then appealed to the general term, where the decree of
the special term was reversed and the bill dismissed. The
complainants then brought the case here.
Florence having died
pendente lite, Morris, his
executor, was substituted in his stead.
The assignment of errors and other facts in the case are set
forth in the opinion of court.
Page 95 U. S. 450
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Sufficient appears to show that the complainants are the
heirs-at-law of James Williams, who died intestate Aug. 16, 1862,
seised in fee of an undivided moiety of lot 1 in square 160 on the
plan of the City of Washington, bounded as described in the bill of
complaint, and they allege that their intestate, six years before
his decease, acting for himself and for the heirs of his brother
previously deceased, who in his lifetime owned the other moiety of
the premises, rented the whole lot to the first-named respondent
for the yearly sum of $600; that the rent was subsequently
increased, and that the lessee has ever since remained in the
possession of the undivided moiety which belonged to the intestate,
and that a large amount of the rent is in arrear, the respondent
having paid only an inconsiderable amount of the same to the lessor
during his lifetime and nothing to the complainants since his
decease.
Superadded to that, the charge of the complainants is that the
respondent, while so in possession of the premises as tenant, did
by his own default suffer the taxes assessed on the lot to remain
unpaid, that the premises were sold at a tax sale, and that he
claims to hold the same by virtue of that sale; but
Page 95 U. S. 451
they allege that the title, if any, acquired to the moiety in
question inured to their benefit, and they further show that the
respondent has recently, in violation of his duty as tenant,
repudiated his tenancy, and claims title to the premises under some
pretended contract with the lessor in his lifetime for the purchase
of the same, all of which claim the complainants aver is
unfounded.
Based upon these allegations, the complainants allege that the
respondent has terminated his tenancy, and they charge that he has
ever since held the property and received from the United States
large rents for the same, for which he is justly accountable, and
they pray for an account of all moneys due for such rent to them
and to the widow of the deceased lessor, and that he be decreed to
convey to the complainants all title to the moiety of the premises
he acquired by the tax sale, and for general relief.
Service was made, and the first-named respondent appeared and
filed an answer, setting up several defenses. Proofs were taken on
both sides, and the court at special term entered a decree in favor
of the complainants. Due appeal was taken by the respondent to the
general term, when both parties were again heard, and the appellate
court reversed the decree entered at the special term and dismissed
the bill of complaint.
From that decree the complainants appealed to this Court, and
now assign the following errors:
1. That the court erred in finding, as matter of fact, that
there was any contract made by the intestate in his lifetime for
the sale of his moiety of the premises.
2. That the court erred in giving effect to the alleged
contract, as it was within the statute of frauds.
3. That the court erred in refusing to allow the complainants to
contribute to the payment of the tax debt to relieve their title
from the cloud of the tax sale.
4. That the court erred in not requiring the respondent to
account for the rents and profits.
Prior to the origin of the present controversy, the premises,
with the building thereon standing, had been the partnership
property of the two brothers named in the bill of complaint.
Possession of the premises was taken by the respondent, and he
proceeded to repair the building and expended several hundred
dollars in fitting up the lower story of the same as an office
for
Page 95 U. S. 452
the insurance company of which he was president. Six months
later or more, the respondent entered into a formal written
contract with the heirs of the other deceased owner whereby they
agreed to sell and convey to him the other moiety of the premises,
and he agreed to purchase the same for the sum of $3,000, to be
paid $1,000 in cash and the rest in notes.
Corporation taxes for two years -- to-wit for the years 1853 and
1854 -- not having been paid, the proper authorities sold the
premises for the payment of the same, and the record shows that one
John P. Ingle became the purchaser at each of the sales and that
the right of redeeming the property had expired before the
respondent went into possession. Deeds of the premises were
subsequently executed and delivered to the respondent, but he did
not at the time put them on record, probably for the reason that
the sales were irregular and that the deeds conveyed no valid
title.
Negotiations subsequently ensued between the respondent and the
purchaser of the premises at the tax sales which resulted, with the
approval of the lessor, in an arrangement that the respondent
should pay the amount of the taxes and expenses and take up the tax
deeds, and the evidence shows that the arrangement was carried into
effect.
Nothing remained in that regard for substantial controversy, but
the respondent six months thereafter induced the purchaser at the
tax sales to give him a quitclaim deed of the whole lot, and at a
still later period put all three deeds on record, showing the title
to the entire premises in himself. Throughout the whole period, the
respondent continued to occupy the premises, until June, 1861, when
he rented the same to the United States at $175 per month, which
rental he has since received.
Viewed in the light of these suggestions, much discussion of the
title of the complainants, irrespective of the defenses set up in
the answer, is unnecessary, as it is obvious that they are entitled
to a decree in their favor unless the defenses or some one of them
can be sustained.
Three of the defenses set up in the answer will be separately
considered:
1. That the respondent was lawfully in possession of the lot
with the tenement thereon under a parol contract with
Page 95 U. S. 453
the complainants' intestate for the purchase and conveyance of
his moiety of the premises.
2. That the pretended claim set up by the complainants is stale,
and ought not to receive the countenance of the court of equity as
the ground for the relief prayed.
3. That the cause of action set up in respect to the matters
alleged, if any, occurred more than three years before the filing
of the bill of complaint or the service of process, and that the
respondent did not at any time within three years next before the
filing of the bill or the service of process agree to come to any
account or pay any sum of money to the complainants by reason of
the matters therein charged.
Briefly stated, the matters alleged in the answer in support of
the first defense are that the respondent, in the month of
February, 1856, entered into a contract with James Williams under
which he rented the premises at the rate of $650 a year, with the
right thereafter to purchase the same for the sum of $6,000, the
lessor representing at the time that he was the sole owner of the
same, and that he, the respondent, entered into the possession of
the lot and tenement and proceeded to make extensive improvements
and alterations in the tenement; that six months later, he learned,
to his great surprise, that the heirs of John Williams, deceased,
were entitled to a moiety of the estate and that he, the
respondent, in order to confirm his title, and at the instance and
with the approval of his lessor, entered into a contract with the
heirs of the deceased owner whereby one-half of the purchase money
was agreed to be paid to them as such owners of the moiety which
belonged to their intestate in his lifetime; and he also alleges
that, on the 22d of October, 1856, he delivered to their attorney
two checks (each for $500), and four promissory notes (each for the
sum of $500), in payment for the moiety of the property to which
those parties were entitled.
Apart from that, the respondent alleges in his answer that the
premises were heavily encumbered by mortgages and that at the time
or before the date of the contract for the purchase of the other
moiety, it was further agreed between him and the owner of the
moiety now in question that he, the respondent, should purchase the
same in pursuance of the original contract
Page 95 U. S. 454
for the sum of $6,000, and that the grantor should be entitled
to a moiety only of the purchase money.
Two contracts are therefore alleged for the sale and purchase of
the premises, and it is obvious that they are widely different in
form and substance. As alleged, the first is for the purchase of
the entire lot and tenement, and the second is for the purchase of
the moiety only which belonged to the complainants' intestate.
Under the first contract, the entire consideration was to be paid
to the party contracting to make the conveyance; but by the terms
of the second, one-half only of the consideration was to be paid to
that party for his benefit, the clear inference being that the
purchaser had previously purchased or contracted to purchase the
other moiety of the heirs of the deceased owner.
Evidence to show that the first contract, if made, was ever
fulfilled is entirely wanting; nor is there a particle of evidence
that any such contract as the one secondly alleged was ever made or
proposed between the parties. Suppose it were otherwise, and that
the parol evidence introduced was sufficient to show that one or
both of the alleged contracts were actually made in adequate terms
and free of ambiguity, still the evidence would not constitute a
defense to the suit for the reason that the alleged contracts would
be within the statute of frauds.
Interests in lands, except leases not exceeding the term of
three years, made or created by livery and seisin only or by parol
and not put in writing and signed by the parties so making or
creating the same, or their agents thereunto lawfully authorized by
writing, shall have the force and effect of leases or estates at
will only, and shall not, either at law or in equity, be deemed or
taken to have any other or greater force or effect. 1 Kilty's Laws,
Md. 242.
"No action shall be brought . . . upon any contract or sale of
lands, tenements, or hereditaments, or any interest in or
concerning them, . . . unless the agreement upon which such action
shall be brought, or some memorandum or note thereof, shall be in
writing and signed by the party to be charged therewith, or by some
person thereunto lawfully authorized."
Browne, Frauds 503.
Page 95 U. S. 455
Argument to show that the respondent did not derive any valid
title to the premises under the tax deeds is unnecessary, as the
amended answer admits that the tax deeds did not convey any title
whatever, and the respondent testified to the same effect. Even if
the deeds had been regular, they would not benefit the respondent,
as in that event the legal conclusion would be that the respondent,
as the tenant of the lessor, held the title in trust for his
landlord.
Rothwell v.
Dewees, 2 Black 613;
Van Horne v. Fonda, 5
Johns. (N.Y.) Ch. 388; 2 Story, Eq.Jur., sec. 1211
a.
Tenants are never allowed to deny the title of their landlord,
nor set up a title against him, acquired by the tenant during the
tenancy which is hostile in its character to that which he
acknowledged in accepting the demise, the rule being that whenever
the possession is acquired under any species of tenancy, whether
the action be assumpsit, debt, covenant, or ejectment, the tenant
is estopped from denying the title of the landlord. Taylor, Land.
and Ten., secs. 629, 705;
Jackson v. Harper, 5 Wend.
(N.Y.) 246;
Sharp v. Kelley, 5 Den. (N.Y.) 431;
Doe v.
Smythe, 4 M. & S. 347.
Attempt is made to take the case out of the protection of the
statute of frauds by the receipts given in evidence, but it is
clear that they fall far short of what is required to accomplish
that object. 3 Phil.Evid. (4th Am. ed.) 351;
Tallman v.
Franklin, 14 N.Y. 584;
Elmore v. Kingscote, 5 B.
& C. 583.
Decided cases everywhere require that the memorandum should
mention the price. Nothing is contained in either receipt to
fulfill that requirement, nor do the receipts contain any thing of
an unambiguous character to enable the court to determine what real
estate is the subject of the purchase. Part of the property lying
west of the tenement, the evidence shows, was never occupied by the
respondent, and the second receipt, in terms, limits the purchase
to the tenement which the respondent occupied and repaired. None of
the terms, says Mr. Phillips, can be left to be supplied by parol,
and if not it is clear that the receipts are not sufficient to
support the theory of the defense.
Baptist Church v.
Bigelow, 16 Wend. (N.Y.) 28;
Morton v. Dean, 13 Metc.
(Mass.) 385.
Page 95 U. S. 456
Unless the essential terms of the sale can be ascertained from
the writing itself or by reference in it to something else, the
writing is not a compliance with the statute, and if the agreement
be thus defective, it cannot be supplied by parol proof, for that
would at once introduce all the mischiefs which the statute was
intended to prevent. 2 Kent Com. (12th ed.) 511;
Norris v.
Lain, 16 Johns. (N.Y.) 151;
Dung v. Perkins, 52 N.Y.
494;
Baltzen v. Nicolay, 53
id. 467;
Wright
v. Weeks, 25
id. 153;
Parkhurst v. Van
Cortlandt, 1 Johns. (N.Y.) Ch. 273;
s.c. 14
id. 15.
Any note or memorandum in writing which furnishes evidence of a
complete and practicable agreement is sufficient under the statute,
and parol evidence is admissible to explain latent ambiguities and
to apply the instrument to the subject matter.
Barry v.
Coombe, 1 Pet. 640;
Clark v. Burnham, 2
Story 131; Story, Sales, sec. 257.
Diversity of decision undoubtedly exists, but this Court
decided, in the case of
Purcell v.
Miner, 4 Wall. 513, that the proof as to the terms
of the contract must be clear, definite, and conclusive, and must
show a contract, leaving no
jus deliberandi or
locus
penitentiae; that it cannot be made out by mere hearsay or
evidence of the declarations of a party to mere strangers to the
transaction, in chance conversation, which the witnesses have no
reason to recollect from interest in the subject matter and which
may have been imperfectly heard or inaccurately remembered,
perverted, or altogether fabricated; that the proof must also show
that the consideration has been paid or tendered, or that there has
been such part performance of the contract that its rescission
would be a fraud on the other party, which could not be compensated
by the recovery of damages; or that the delivery of possession has
been made in pursuance of the contract, and has been acquiesced in
by the other party.
Tested by these considerations, it is clear that the attempt to
prove a written contract utterly fails, and that there is no
satisfactory evidence to prove any such part performance of the
supposed contract as will take the case out of the operation of the
statute.
Where the attempt is to take the case out of the statute
Page 95 U. S. 457
upon the ground of part performance, the party making the
attempt must show by clear and satisfactory proof the existence of
the contract as laid in his pleading, and the act of part
performance must be of the identical contract which he has in that
manner set up and alleged. It is not enough that the act of part
performance is evidence of some agreement, but it must be
unequivocal and satisfactory evidence of the particular agreement
charged in the bill or answer.
Phillips v. Thompson, 1
Johns. (N.Y.) Ch. 131; Browne, Frauds, sec. 452.
Specific performance in such a case will not be decreed unless
the terms of the contract are clearly proved or admitted, and a
sufficient part performance is made out to show that fraud and
injustice would be done if the contract was held to be inoperative,
and all the authorities agree that the acts of part performance
must be such as are referable to the contract as alleged, and
consistent with it. Woodfall, Land. and Ten. (9th ed.) 942;
Price v. Salusbury, 32 Beav. 446;
Tompkinson v.
Straight, 17 C.B. 697.
Nothing is part performance for this purpose which is only
ancillary or preparatory; it must be a direct act which is intended
to be a substantial part performance of an obligation created by
the contract as proved, and it must be an act which would not have
been done but for the contract, and it must be directly in
prejudice of the party doing the act, who must himself be the party
calling for the completion of the contract.
Jones v.
Peterman, 3 Serg. & R. (Pa.) 543;
Morphett v.
Jones, 1 Swans. 172;
Ex parte Hooper, 19 Ves. 477;
Frame v. Dawson, 14
id. 385;
Buckmaster v.
Harrop, 7
id. 341; 3 Pars. Contr. (6th ed.) 60.
Where one of the two contracting parties has been induced or
allowed to alter his position on the faith of such contract to such
an extent that it would be fraud on the part of the other party to
set up its invalidity, courts of equity hold that the clear proof
of the contract and of the acts of part performance will take the
case out of the operation of the statute if the acts of part
performance were clearly such as to show that they are properly
referable to the parol agreement. Chitty, Contr. (10th ed.) 66,
278; 2 Story, Eq. Jur., sec. 761.
Page 95 U. S. 458
Courts of equity sometimes, in cases of concurrent jurisdiction,
follow by analogy the statute of limitations which govern courts of
law in like cases, but there is nothing in the facts of the case
before the Court to bring it within the operation of that rule.
Beyond all question, the fee simple title of the property was in
the original lessor, and it is equally clear that the respondent
entered into the possession of the premises as the tenant of the
lessor, under an agreement to pay a stipulated rent, and the record
shows that he continued to hold possession of the same until the
time of his decease or until he rented the same to the United
States; nor does the fact that he, subsequently to the entry,
denied the title of his landlord have any just influence to support
the defense of limitation or laches, inasmuch as the case shows
that he did so without any just cause or legal excuse. Authorities
to support that proposition are quite unnecessary, as to hold
otherwise would be to sanction injustice and encourage fraud.
From these suggestions it follows that the decree in the court
of original jurisdiction was correct; but inasmuch as the account
was not taken,
Nellis v. Lathrop, 22 Wend. (N.Y.) 121, the
decree rendered at the general term will be reversed and the cause
remanded, with directions to enter a decree for the complainants
for further proceedings in conformity to the opinion of this Court,
and it is
So ordered.
