Alvey v. Alvey

⁵⁷³ Hornjíy, J., delivered the opinion of the Court. When the Circuit Court for Anne Arundel County sustained the demurrer of the wife to the amended bill of complaint of a purchaser against the seller of a parcel of land and his wife for specific performance of the memorandum of sale signed by the husband, but not the wife, the purchaser appealed. The amended bill in substance alleged that R. Bradley Alvey (the seller, husband and one of the defendants) and Pauline Alvey (the wife of the seller and the other defendant) on April 29, 1955, “did agree to convey” to Llowerton Alvey (the purchaser and plaintiff) a parcel of land situated in Anne Arundel County, at and for the sum of $2750, of which $2250 was “paid [to] the * * * defendants” as a down payment. The bill further alleged that “even though the contract was executed by * * * [the husband] alone on behalf of the [g]rantors, his wife * * * was well aware of all the facts pertaining to the making of the contract”; that the wife “was present on several occasions when the contract was discussed and was present and took part the day the contract was signed and [that] she counted the money several times”; that the wife stated “she was glad her husband had decided to sell off some of the property and she wholly acquiesced in the sale”; that the plaintiff “has no doubt that if he or his brother [the seller, husband and one of the defendants] had realized it was necessary for * * * [the wife to sign] the agreement, she would have done so”; that the wife “accepted part payment on account of the purchase price”; and that, after considerable delay caused by a dispute with an adjoining owner over a boundary line, the seller finally informed the purchaser that “he would not go through with the deal and advised * * * [him] to get the property the best way he knew how.” Lastly, it was alleged that on or about November 7, 1957, the defendants, by and through a trustee, had conveyed the property to him and accepted a reconveyance as tenants by the entireties.

The plaintiff, however, sought only specific performance and the usual “further relief.” The husband answered the bill, but the wife demurred— ⁵⁷⁴ though she also answered—by saying that the “contract * * * shows on its face that * * * [the wife] was not a signatory party.” The demurrer, of course, had the effect of admitting only such facts as were well pleaded—-that the wife had accepted a part of the down payment; that she had acquiesced in the sale; and that although she had knowledge of the sale she accepted a conveyance of the property so sold as one of the tenants by the entirety'—and no more. Other alleged circumstances—that the wife was aware of the execution of the agreement to convey; that she was present when the transaction was discussed; that she “took part” on the day the memorandum was signed; that she counted the down payment; and that she was glad her husband had decided to sell —are, factually, impertinent or irrelevant. The chancellor, in sustaining the demurrer, stated no reason for his action, and, since he had not been requested to file a memorandum of the grounds for his decision pursuant to Maryland Rule 18 c, we can only surmise—since it was the only ground on which the demurrer was rested—that the chancellor based his decision only on the assigned ground that the statute of frauds was a bar to the specific performance of a memorandum of sale the wife had not signed. Whether or not the chancellor also considered the impact of the well pleaded facts on the statutory bar we have no way of knowing.

In any event, since it is conceded that the statute, in the absence of facts precluding its operation, would be a complete bar to specific performance on the part of the wife, the question is whether the wife, because of her actions or inactions, is estopped from asserting the bar of the statute as a reason why the demurrer should be sustained. The plaintiff contends that the wife is equitably estopped from denying that she was a party to the agreement to convey. On the other hand, the defendants contend that on the facts the wife as one of the present owners of the property cannot be shown to have entered into the agreement to convey. The plaintiff in seeking only specific performance instead of also claiming partial specific performance and attempting ⁵⁷⁵ to set aside the “straw” deeds, 1 must show that the wife was a party to the agreement to convey.

If the bill has failed to do that, then the wife’s demurrer was properly sustained. The plaintiff was, of course, directly confronted with the statutory requirement that the “party to be charged” must have signed the memorandum. Statute of Frauds, 29 Car. II, Ch. 3, § 4