Benscotter v. Green

Irving, J., delivered the opinion of the Court. The original bill in this' cause charges, that the appellant, on the 22nd of May, 1878, being the owner in fee óf certain lands in Caroline County, Maryland, conveyed the same to Miles W. Green and wife, the appellees, who, in consideration thereof, promised to pay or secure to be paid to tire complainant the sum of five thousand dollars. This consideration money, the bill charges to be wholly unpaid and overdue, and prayer is made for a sale of the land for the payment thereof In other words, it is a bill to enforce an alleged vendor's lien. An interlocutory decree seems to have been obtained against the appellees, but within a few days thereafter they obtained leave of the Court to answer, which they did separately and under oath.

The answer of each denies, that, at the date of the execution of the deed, the appellant was the owner in equity of the land conveyed by the deed. It is averred in the answers, that on the 3rd of June, 1877, it was agreed to convey them the land in consideration of an agreement in writing, that day made by the appellees, wherein, in consideration of the conveyance of the land ³²⁹ to them, they covenanted to support the complainant, his wife and their daughter Amanda, during their several lives, and to pay all their doctors’ hills and other expenses; and to pay the complainant twenty-five dollars for four years, and also to pay certain debts of the complainant, and at certain periods to pay certain designated sums of money to other persons named in the agreement; which several sums of money, together with the estimated value of the board and clothing of the persons to be provided for, were computed to amount to five thousand dollars. The answers aver the faithful performance of the several undertakings in the agreement, and charge, that in the autumn of 1877, the appellees came from their home in Pennsylvania to the farm in Maryland and took possession thereof under the agreement, bringing with them the several persons whom they were to support under the agreement. They admit the execution of the deed in May, 1878, to cure a defect in the attempted conveyance at the time of making the agreement.

Subsequent to the filing of the answers the complainant, under leave of the Court, amended his bill charging that the deed was procured from him by fraud and imposition. The amended bill also made Mrs. Benscotter a party complainant. The allegations of the amended bill were denied by the appellees, and general replication was entered. By the amended bill the complainants did not ask to have the deed set aside for fraud, but asked for the relief prayed for in the original bill.

It appears from the proof, that the complainants are old people, and one of them, Thomas Benscotter, was out of health and very infirm. They had lived on this farm in Caroline County and had gone back to Pennsylvania where the appellees also lived. The appellee, Mrs. Miles, is the daughter of the complainants. An agreement in writing, such as was set up in the answers of the defendants (appellees) was entered into as a consideration for the ³³⁰ deed.

It was signed and sealed by tbe appellees, and the complainant, Thomas Benscotter, in return for it, executed an assignment, under advice, in Pennsylvania, from a scrivener there, of his deed for-the property in question. In the autumn of 18IT, the appellees left their home in Pennsylvania and came to Maryland and took charge of the farm, bringing the complainants and their daughter with them, whom they have supported ever since. It appears that a similar offer was made of the farm to the other children, but none would undertake it but the appellees. After coming to the farm and entering into possession, and after proceeding to discharge the duties undertaken by the contract, namely, in the spring of 1878, when the ássignmént of the deed was taken for record, the appellees were informed that it was hot an effective transfer of the property.

Consequently the request was made by the appellees for the execution of a deed. This request was complied with, and the deed set up in the bill was made to the appellees. The consideration named therein is five thousand dollars, and the same sum was named as the consideration for the assignment of the deed which was found ineffectual as a transfer of the property. It fully appears from the evidence how this amount of five thous-sand dollar's was made up.

It was partly money agreed to be paid to complainant, and others in various sums designated in the contract, and the money value set upon the support for complainants and their daughter contracted for. That the contract, which was in writing, under seal, and the testimony respecting the part execution of it was admissible, under the circumstances of this case, and the pleading, we think is very clear. The Court below so held; and it.was conceded by appellant’s counsel in this Court not to be obnoxious to objection by reason of the principles laid down in Betts vs. Union Bank, 1 H. & G., 175 ; Claggett vs. Hall, 9 G. & J., 91 , and Cole vs. Albers, ³³¹ 1 Gill, 412 . Looking at the whole transaction, in the light of that evidence, it is very evident that the deed was executed to carry out the original agreement and understanding ; and we fully agree with the Circuit