Applestein v. Royal Realty Corp.

Sloan, J., delivered the opinion of the Court. The Royal Realty Corporation filed a bill for specific performance against Aaron A. Applestein, who agreed in writing to purchase from it in fee two properties, Nos. 19 and 21 West Mount Royal Avenue in Baltimore, for $10,000, of which $500 was paid in cash, $1,500 to be paid at time of settlement, which was to be within sixty days from the date of the agreement, April 18, 1940, “seller to arrange for a purchase money mortgage of eight thousand dollars ($8,000.00) for a period of five years to bear interest at four per cent (4%) per annum. Said mortgage to be amortized ten per cent (10%) annually, to be paid monthly or quarterly.” The defendant demurred, on the ground that the contract was vague, indefinite, and uncertain, and both parties cite many authorities to the effect that these qualities must be present or the contract cannot be specifically enforced. The demurrer was overruled; the de ²⁷⁶ fendant declined to answer and appealed to this Court.

The rule applied by this court in many cases is as stated in Miller’s Eq. Proc., 789, Sec. 683: That the contract sought to be specifically enforced must be definite and certain in its terms, and free from all ambiguity, has been established in many cases. It is indeed said that the contract must be free from all shade or color of ambiguity. If uncertain or ambiguous, a specific performance will not be decreed. .

The only uncertainty of which the defendant complains is that the contract fails to state what terms and provisions the mortgage shall contain. Courts cannot write litigants’ contracts, but they can construe them; and when they are valid, enforce them. We cannot say what form the mortgage shall take. The contract requires the payment, when settlement is made, of an additional sum of §1,500 in cash, leaving a balance of §8,000, to be secured by a purchase money mortgage of §8,000, the mortgage to provide that it shall be payable in five years, to bear interest at 4 per cent, per annum, to be amortized 10 per cent, annually, to be paid monthly or quarterly.

The mortgagor could decide whether it be monthly or quarterly. Scholtz v. Philbin, 157 Md. 196, 199 , 145 A. 487 ; but neither party makes any point of this. The inconsistent requirements are that the mortgage shall be payable in five years, yet the agreement also says it is to be amortized 10 per cent, annually. To be amortized at that rate, the mortgage should be payable in ten years, not five.

The courts must say what the contract is, yet in this one clause, we have two contracts, one calling for a five year mortgage and one for ten years. To say that it shall be one, or the other, would mean that the court write in the provision for payment. The provision for payment of the major part of the purchase money is not an unimportant part of the contract. Neither of the parties submits a form of mortgage, so that we are held to the literal terms of the contract of sale.

One of them might contend for the general form of Section 80, Article ²⁷⁷ 21, Code, 1939, or the form commonly used in Baltimore City. If the former, there is no covenant to pay taxes or interest or to insure, and to provide for foreclosure in case of default. The chancellor took the position that the form commonly in use in Baltimore, which contains all the covenants necessary for the protection of the mortgage in case of default, was the form of mortgage contemplated by the parties, but none of those covenants are contained in the contract. Those provisions