Balderston v. Balderston

Davidson, J., delivered the opinion of the Court. In 1969, the appellant, William S. Balderston (husband), and the appellee, Yvonne A. Balderston (wife), then married, purchased a home at 11 Hilltop Road. On 6 December 1973, the husband and wife signed an agreement which provided in pertinent part: “That he agrees to give possession of the home of the parties presently held as tenants by the entirety, ²⁴⁰ and known as 11 Hilltop Road, Silver Spring, Maryland, to the wife, with right of privacy and control of the premises, until the youngest child reaches the age of eighteen (18) years or in the event of a divorce between the parties, until the wife shall remarry, whichever event first occurs. Upon the happening of either event or at any time prior to the happening of either event, upon the request of the wife, the husband agrees to join with the wife in listing the property for sale at the best price obtainable, to execute, acknowledge and deliver all papers required in the sale of same, and, after reimbursement to the wife, the cost of any capital improvements made to the property by the wife after the date of this Agreement, to divide the net proceeds realized from the sale equally between the parties.” “That the wife promises and agrees to join with the husband in listing for sale at the best price obtainable, at such time as the youngest child of the parties reaches the age of eighteen (18) years or in the event of a divorce between the parties, at such time as she should remarry, whichever event first occurs, to execute, acknowledge and deliver all papers required in the sale of same, and, after reimbursement to her of the cost of any capital improvements she made to the property after the date of this Agreement, to divide the net proceeds realized from the sale equally between the parties.” On 19 May 1975, the Balderstons were divorced.

The wife continues to live in the home. It is undisputed that the wife has hot remarried and that the youngest child has not yet become 18 years of age. On 22 February 1977, in the Circuit Court for Montgomery County, the husband filed a bill of complaint against the wife and the Permanent Mortgage Company requesting, among other things, that the Court order the sale of the home, now ²⁴¹ held by the husband and wife as tenants in common. The wife, relying upon the above quoted sections of the agreement, filed a motion for summary judgment.

On 30 November 1977, Judge Ralph G. Shure granted the wife’s motion and dismissed the husband’s bill of complaint. On 16 December 1977, the husband filed a motion for rehearing, which Judge Shure refused to grant. The husband appealed. In Maryland, a tenant in common has a common law right to compel partition in kind. 1 In addition, under statute 2 and rules, 3 a tenant in common has a right not only to compel partition in kind, but also, under some circumstances, to compel a sale in lieu of partition. 4 Maryland Real Property Code, § 14-107 (a) provides in pertinent part: “(a) Decree of partition. — A circuit court may decree a partition of any property, either legal or equitable, on the bill or petition of any ... tenant in common____If it appears that the property cannot be divided without loss or injury to the parties interested, the court may decree its sale and divide the money resulting from the sale among the parties according to their respective rights.” Neither the Court of Appeals nor this Court has considered the question of whether a party to an agreement in which he relinquished his right to compel a sale of property may thereafter compel such a sale.

Courts in other jurisdictions, variously relying on principles of estoppel and waiver 5 or specific performance, 6 have held that a person can, by contract, relinquish for a time his right to compel a partition ²⁴² or sale. 7 The underlying rationale for such holdings, based upon equitable principles applicable in partition matters, 8 is that it would be unfair to permit a party who has expressly or impliedly agreed not to seek partition thereafter to compel partition. Here, the husband, relying upon Gunter v. Gunter,; 9 contends that the trial court erred in