Burroughs v. State

Menchine, J., delivered the opinion of the Court. Mark H. Burroughs, also known as M. H. Burroughs and Fox Burroughs, was convicted of obtaining money under false pretenses, (violation of Article 27, § 140) after a bench trial in the Circuit Court for Queen Annfe’s County. He was sentenced to a term of one year imprisonment, three months of which were required to be served with the balance of the term suspended under conditions of probation. His appeal questions the legal sufficiency of the evidence ⁶⁵⁰ to convict.

He also suggests error in the admission of evidence of a prior conviction. Sufficiency of Evidence In Polisher v. State, 11 Md. App. 555, 560 , 276 A. 2d 102, 104 , we said: “The false pretense is the crux of the crime. So the crime is committed when a person: 1) by making a false representation of a past or existing fact; 2) with intent to defraud; and 3) knowledge of its falsity; 4) obtains any chattel, money or valuable security from another; 5) who relies on the false representation; 6) to his detriment.” We find that the State failed to prove the first element of the offense as outlined in Polisher, supra. We thus find it unnecessary to deal with the other elements of the crime.

Here, the question whether there was or was not a false representation of a past or existing fact must be determined from the testimony of F. Tobey King (the person allegedly defrauded) and from the language used in a “timber agreement” executed by appellant and admitted in evidence in the course of King’s testimony. The testimony of King relating to an alleged misrepresentation of a past or existing fact will be set forth herein in detail. That testimony was as follows: “Q Now, whose property was this? A He said it was his, Easton Land Company.

Well, we had a contract drawn up, and I paid him $2500 deposit, and we signed the contract. He had this lawyer draw it up. ⁶⁵¹ Q Now, tell me, Mr. King, at anytime did Mr. Burroughs ever purport not to be the owner of this property? A No. Q At all times he claimed to be the owner of this property? A Yes.

Q At anytime did Mr. Burroughs ever infer that this land was under contract of sale? A Not that I know of. I know he said he had bought the land and he was going to develop it. Q Now, can you say with certainty, Mr. King, that during those 10 or more conversations which you had with Mr. Burroughs that he didn’t at anytime indicate to you that this property was under contract of sale to him?

A Contract to buy? Q Contract to buy, yes. A He told me he owned the property. * * * He said he had recently bought the property. Q Had recently bought it, but was anything said about whether or not the settlement was held?

A No, I don’t think he would discuss that with me, he didn’t have any reason to discuss it with me. Q And during those discussions and later ones you don’t remember ever hearing Mr. Burroughs relate to you the exact status of the title of the real estate? A Except that he owned it, it was his property.” (Emphasis added.) ⁶⁵² Under a written contract dated May 20, 1971 entitled “Timber Agreement” the appellant, (describing himself as “owner”) authorized Ray-King Timber, Inc. “to cut, saw and log” timber on a tract of land near Harrington, Delaware. F. Tobey King and Burroughs visited the tract before the contract was executed and prior to King’s entry upon the land to remove the timber therefrom.

On the same date Ray-King Timber, Inc. issued a check payable to M. H. Burroughs for $2500, drawn upon the Sudlersville Bank of Maryland as a deposit subject to later adjustments between the parties. The check, bearing the endorsement “M. H. Burroughs” and the Notation “Easton Land Company,” was cashed by appellant on May 21, 1971 at the bank in Sudlersville, Maryland. The monies derived by appellant from that check never were returned to the corporation. The timber agreement was executed and the check delivered at Millington, Queen Anne’s County, Maryland.

Appellant defended upon the ground that he was the equitable owner of the property. To support his claim he submitted a document dated April 12, 1971, executed by H. Brandt King and Jane B. King as “sellers” to Virginia Lee Schultz as “buyer.” He then offered in evidence an assignment dated May 19, 1971, whereby Virginia Lee Schultz transferred all her right, title and interest in the land to M. H. Burroughs, t/a Easton Land Company. No evidence was offered by the State that would tend to contest the validity of those two documents. In 92 C.J.S. Vendor and Purchaser § 311, it was said at page 192: “Unless there are restrictions against assignment, the holder of a bond or contract for the purchase of land may assign his interest therein, * * Maryland adheres to this general rule.

In Kingsley v. Makay, 253 Md. 24 , 251 A. 2d 585 , the .Court of Appeals upheld the right of multiple assignees of a contract for sale of land to obtain specific performance from an original vendor, who ⁶⁵³ had not been a party to the assignments. It was said at page 28 [587]: “Even granting the permissibility of the recording of the paper writings by means of which Bold accomplished the transfers of his equitable interest in the property, we know of no statute which makes the validity of those transfers dependent upon recording.” The land contract of sale from the Kings to Schultz, although titled “Purchase Offer and Deposit Receipt,” was for an outright sale, without conditions other than requirements for payments of the purchase price of $55,000. The vendors of that land contract of sale were H. Brandt King and Jane B. King, former residents of Dover, Delaware, who resided in Geneva, Switzerland at the time they executed the contract of sale. The State made no effort to show that execution of the contract by the Kings was obtained by Burroughs or Schultz by fraud or misrepresentation.

More, the record shows that H. Brandt King and Jane B. King were holders of record title of the land from which the timber was to be cut and that F. Tobey King, alleged victim of false pretenses, subsequently acknowledged their title to the land and desisted from his logging operation on the tract after protests by their agent. The land contract of sale, executed by H. Brandt King and Jane B. King had provided, inter alia, “buyer to have full control of the farm land (417 acres) for the year 1971 upon the signing of this contract.” That contract contained no prohibition against assignment by Schultz. The documentary evidence demonstrates that the land contract of sale to Schultz and the later assignment of the rights under it to the appellant operated to vest in Burroughs equitable title to the tract from which the timber was, to be cut. Appellant’s testimony showed, without contradiction, that he had attempted, unsuccessfully, to obtain full legal title.

Burroughs acknowledged that transfer of legal title to himself from the Kings never was made, but said that: ⁶⁵⁴ “* * * My attorney, Harold Schmittinger, wrote Herman Brown, attorney for H. Brandt King, on three occasions and advised that I was prepared to make full settlement.” He also testified that, “Through the chain of titles there are three mortgages not released in accordance with the record.” The time for settlement under the land contract of sale had not expired when the “timber agreement” was executed. The totality of the evidence against the appellant shows no more than that under those circumstances he had asserted that he was “the owner” of the property. In 32 Am. Jur. 2d False Pretenses § 30 (1967) it was said: “§ 30.

Title or ownership. A conviction of obtaining money by false pretenses may be based on a false representation that the defendant was the owner of property, either real or personal. Such a conviction may also be based on a misrepresentation with respect to the title to property. But one cannot be convicted of obtaining money or property by false pretenses on the basis of a representation of ownership where at the time the representation is made the person making it has an equitable interest in the property, such as an enforceable contract to purchase or an option to buy. * * * ”