DiTommasi v. DiTommasi

O’Donnell, J., delivered the opinion of the Court. On November 3, 1964 the appellee, Adrian DiTommasi, and the appellant, Carmela DiTommasi, then husband and wife, acquired, as tenants by the entireties, for their domicile, the real property located at 1902 Callaway Street in Hillcrest Heights, Prince George’s County, Maryland. Following irreconcilable matrimonial differences the appellee vacated the home on or about November 23, 1966. When, on June 5, 1973, the parties were divorced a vinculo matrimonii by a decree of the Circuit Court for Prince George’s County, the estate that they held by the entireties was converted into a tenancy in common.

See Meyers v. East End Loan & Savings Ass’n, 139 Md. 607, 612 , 116 A. 453, 455 (1922); Reed v. Reed, 109 Md. 690, 696 , 72 A. 414, 416 (1909). Unable to reach an agreement as to the disposition of the property, where the appellant continued to reside and since concededly it could not be partitioned, the appellee filed a ²⁴⁴ bill of complaint in the Circuit Court for Prince George’s County praying that that court decree the sale of the premises and divide the proceeds among the parties according to their respective rights. See Maryland Code (1974), Real Property Article § 14-107 (a). American Federal Savings and Loan Association, to which the parties were indebted under a deed of trust, was joined as a party in accordance with the provisions of § 14-107 (d).

Opposing such a sale, the appellant defended the action by asserting that her former spouse had made an oral gift of the property to her, was estopped from asserting his interest as a tenant in common therein and that she was nonetheless entitled to reimbursement from him not only for the contribution she made toward the purchase, but for those payments subsequently made by her on account of the interest and principal due American Federal, for taxes, insurance and for improvements made. Following an evidentiary hearing, the chancellor (Ralph W. Powers, C. J.) filed an opinion in which he found that the appellant had not met her burden, by a preponderance of the evidence, of establishing a donative intent on the part of the appellee; that the complainant was not estopped to assert his interest in the property; and that although he was responsible for contribution for certain specified improvements made to the property by the appellant, she was not entitled to reimbursement of the moneys she had contributed toward the purchase of the property, nor for the payments she made by way of taxes, insurance and principal and interest under the deed of trust. From a decree ordering the sale of the property and appointing cotrustees to make such sale, and from rulings limiting the amounts to be credited to the appellant by the auditor in his statement of account to be filed with the court, the appellant appealed, contending as she had in the trial court, that: (a) the appellee had made an oral gift of the house to her; (b) that he was estopped from asserting his interest in the title to the property; and (c) that the trial court erroneously limited the items for which she was entitled to contribution from him. ²⁴⁵ (a) and (b) Since the issues of whether the appellee made a parol gift of his interest in the property and was estopped from asserting his title thereto are so inexorably here intertwined we shall discuss them together. Carmela DiTommasi testified that when her former spouse departed the premises on November 22, 1966 — as well as on several later occasions when he returned thereto to recoup some of his personal effects — he had told her that “He didn’t want the house, that she could keep it,” and that “you can have the house.” She dramatically recalled one occasion, when the appellee had had her arrested (apparently for assault) and while she was being escorted by the police, he told her: “ ‘You stole the house and I don’t want it.’ ” She also testified that she had earlier given him a boat, that he told her “ ‘You can have the boat too’ ” and that “ ‘He says he give it to me, but he take it [away].’ ” This evidence was buttressed by the testimony of two of the appellant’s daughters (Adrian’s stepchildren), both of whom resided at the premises at the time of separation, that the appellee, following an argument “around Thanksgiving [1966],” stated that “He didn’t want anything to do with the house it belonged to [their] mother.” One of the stepdaughters testified that this disavowal of any interest in the property was repeated on an occasion when her stepfather returned to claim some personal belongings.

A neighbor and confidante of the appellant — who spoke no English — testified through an interpreter that there had been repeated arguments and statements between the parties concerning the house and that on one such occasion, several days after Thanksgiving, 1966, she heard Adrian tell Carmela that “He didn’t want anything to do with the house.” 1 A mutual friend of the principals, since 1960, was the fifth witness to give cumulative testimony on this point. She testified that she had overheard an argument, in September ²⁴⁶ 1966, when Adrian stated, “ T don’t give a damn . . . you can have this house ... it don’t belong to me.’ ” The witness conceded, however, when asked if she knew that Mr. and Mrs. DiTommasi had separated, that “I don’t know too much about their business.” Adrian DiTommasi contradicted the appellant’s witnesses at virtually “every turn”; he emphatically denied ever having made such statements concerning the disposition of the property, contended that he had returned to the premises only twice — on which occasions he admitted himself with his own key — and not on five or six occasions as described by one of the stepdaughters and that on one of his visits, approximately ten days after November 23, 1966, the appellant had had him arrested for nonsupport. From this plethora of parol evidence versus the appellee’s uncorroborated denial and, specifying purported discrepancies in the appellee’s testimony, the appellant argues that the chancellor erroneously found that there had been no gift of Adrian DiTommasi’s interest in the property. Judge Powers, in finding that the appellant had not sustained her burden, by a preponderance of the evidence, of establishing a donative intent on the jpart of Adrian DiTommasi, pointed out that in order to make a valid gift inter vivos, there must be a clear intention on the part of the donor to transfer gratuitously t.itle to the property, and also a delivery by the donor and an acceptance by the donee, and that it is essential that the transfer of both possession and title shall be absolute and shall go into immediate effect.

See Rogers v. Rogers, 271 Md. 603 , 319 A. 2d 119 (1974); Geisler v. Eminizer, 240 Md. 72 , 212 A. 2d 734 (1965); Berman v. Leckner, 193 Md. 177 , 66 A. 2d 392 (1949); First Nat’l Bk. v. Thomas, 151 Md. 241 , 134 A. 210 (1926). See also Urquhart v. Alexander & Alexander, Inc., 218 Md. 405, 414-15 , 147 A. 2d 213, 219 (1958), cited by the chancellor, that evidence of a gift, although it may be proved by parol, “the evidence thereof must be clear and convi .icing.” Her argument as to this facet of the case overlooks the fact that the chancellor had an opportunity to observe the demeanor of the witnesses, to judge their credibility and to ²⁴⁷ pass upon the weight to be given their testimony. See Maryland Rule 1086; Colburn v. Colburn, 15 Md. App. 503, 513 , 292 A. 2d 121, 127 (1972). Where the facts or inferences therefrom, or both, are in dispute, such questions are to be determined by the trier of fact.

In such instances, “involving the resolution or questions of fact, it is not the province of this Court to weigh and evaluate the conflicting evidence to determine its comparative value; we decide only whether there is any evidence legally sufficient to support the finding of the trier of facts — in this instance the court sitting without a jury — and in making this decision we assume the truth of all the evidence, and of all favorable inferences fairly deducible therefrom tending to support the factual conclusion of the court.” Carling Breving Co. v. Belzner, 15 Md. App. 406, 411-12 , 291 A. 2d 175, 179 (1972), citing Stancliff v. H. B. Davis Co., 208 Md. 191, 197 , 117 A. 2d 577, 580 (1955). Nor can we substitute our judgment for that of the lower court on its findings of fact, but can only determine whether those findings are clearly erroneous in the light of the total evidence. Colburn v. Colburn, supra. As the trial court pointed out, his conclusion upon the testimony offered was supported by the bill of complaint 2 filed in April 1967 by Carmela DiTommasi — seven months after the purported gift — wherein she listed the premises as the “common property of the parties.” We conclude that Judge Powers was not clearly erroneous in finding an absence of donative intent where the testimony of both the apellant and appellee disclosed that he, in visiting the premises, had admitted himself with his own key, without any evidence of relinquishment of his right to possession, when coupled with the appellant’s testimony concerning the gift of a boat, and from the very nature of this purported “gratuitous transaction” where the references to the house only arose at the zenith of a series of stormy and violent domestic arguments.

In order for such intent to ²⁴⁸ be proven, it must be shown from the evidence that the donor clearly and unmistakably intended permanently to relinquish all interest in, and all control over the res which is the subject of the gift. See Schilling v. Waller, 243 Md. 271 276-77 , 220 A.2d 580, 583 (1966), and cases therein cited. Recognizing that no corporeal estate or freehold interest in land may be assigned, granted or surrendered unless it be in writing signed by the party so granting, assigning or surrendering it, see Prevas v. Gottlieb, 229 Md. 188, 193 , 182 A. 2d 489, 492 (1962); see also Maryland Code (1974) Real Property Article, § 5-103, the appellant nonetheless argues that equity will protect a parol gift of land if accompanied by possession and the donee, induced by the promise to give it, has made valuable improvements on the property by the expenditure of labor or money. She contends — presupposing the validity of a parol gift from her former spouse — that she entered into possession of the premises and in reliance upon the promise, expended considerable sums by way of improving it and that as a result thereof the appellee is estopped from asserting his interest as a tenant in common in the realty.

The chancellor, in answering in the negative as to whether the appellee was estopped, pointed out that the doctrine of equitable estoppel “ ‘will not be applied unless it is shown that the person sought to be estopped has been guilty of sone wrongful or unconscientious conduct upon which another relied and was misled to his injury.’” Alvey v. Alvey, 220 Md. 571, 576 , 155 A. 2d 491, 493 (1959). Finding from the evidence that there was no showing “that the defendant’s [appellant’s] payment of obligations on the property were induced by the plaintiff [appellee] or that the amount of reduction of plaintiff’s [appellee’s] principal obligation [under the deed of trust] was even as much as he would be entitled to as his share of the rent,” found the appellant’s reliance upon the holdings in Machovec v. Shipley, 171 Md. 339 , 189 A. 223 (1937), to be misplaced. As we see it, the holdings by the Court of Appeals in Withers v. Douglas, 206 Md. 141 , 110 A. 2d 513 (1955), are completely dispositive of this issue. ²⁴⁹ In Withers the appellant and appellee had lived together as husband and wife, “without benefit of clergy,” during which time, as co-owners, they purchased a home, taking title as tenants by the entireties and executing a mortgage to a building and loan association. 3 In early 1950 Withers terminated the relationship and left the home; the appellee continued to reside there with the children. When he left the appellee paid on the principal of the mortgage, as well as the interest, taxes and ground rent.

She repeatedly hounded him for money until he wrote three notes, the first of which said in part, “You will better sell the house and get the money for it. I will sign it over to you.” A year later he again wrote, “I am paying no more the house is yours — do what you want with it.” A month after that he wrote for the third time, “Here is 50 dollars I cant give anymore — the house is yours so Please dont Bother me — I pay no more.” Notwithstanding such declarations, he continued to forward substantial sums of money. Several months after the first note was written, in 1951, the appellee’s mother spent $200 to have the walls of the house “damp-proofed”; the appellee had some wallpapering done. When the appellant filed a bill for the sale of the property and after a decree had been passed, the appellee, with leave of court, filed a cross-bill alleging that the appellant “ ‘had abandoned and voluntarily surrendered and given to . . . [her] any interest he had in said property.’ ” The chancellor determined there had been a valid, though informal, gift of his interest in the real estate by one co-owner to the other, granted the relief prayed in the cross-bill and dismissed Withers’ original bill.

He appealed. In reversing the lower court the Court of Appeals remanded the case so that a sale could be made pursuant to the original bill of complaint and held that there was no showing that the appellee’s possession [the same as that here asserted by the appellant] was referable to anything ²⁵⁰ except her status as a co-owner and tjiat there was no evidence that she had changed her position, or was put to a disadvantage so that it would be inequitable, to the point of fraud, to permit appellant to deny completion of the gift. Judge Hammond (later Chief Judge) of the Court of Appeals, for that Court, state d: “It is true that equity protects a parol gift of land if accompanied by possession and the donee, induced by the promise to give it, has made valuable improvements on property by the expenditure of labor or money. The principle involved and the tests applicable are similar to those which underlie and control the doctrine of part performance in cases of contracts to sell land which do not meet the requirements of the statute of frauds.

Hardesty v. Richardson, 44 Md. 617, 624 ; Miller, Equity Procedure, Sec. 671, p. 777; Restatement, Restitution, Sec. 164, p. 666; Pomeroy, Specific Performance of Contracts, 3rd Ed., Sec. 130. The tests as to part performance require that the proof must he clear, definite and conclusive, both as to the fact of the gift and as to the acts done, as well as that the acts had been done on the strength of the gift only, so that any attempt by the donor to avoid the gift would be inequitable to the point of fraud. Hardesty v. Richardson, supra; Soehnlein v. Pumphrey, 183 Md. 334, 336 ; Polianski v. Polianski, 138 Md. 598 ; Whitaker v. McDaniel, 113 Md. 388 ; Chamberlain v. Preston, 170 Md. 1 ; Jaworski v. Jaworski, 202 Md. 1 . See also Reinhardt v. Fleming (Wash.), 140 P. 2d 504 ; and the annotation in 155 A.L.R. 73 , 76.” (Emphasis supplied.) 206 Md. at 144-45 , 110 A. 2d at 515-16 .

After pointing out that “[t]he tests as to whether the acts of part performance are referrable only to the contract or gift” were discussed in Semmes v. Worthington, 38 Md. 298, 327 (1873), where the Court said: “ ‘The act relied on as part performance must, in itself furnish evidence of the identity ²⁵¹ of the contract; and it is not enough that it is evidence of some agreement, but it must relate to and be unequivocal evidence of the particular agreement charged in the bill. ’ [citations omitted]” (emphasis in original), he continued for the Court: “Another such test is applied in Rosenthal v. Freeburger, 26 Md. 75, 80 , — that continuance of possession, taken before the contract or gift was made, is usually insufficient as part performance. In that opinion, the Court, speaking of possession of a tenant holding over, adopted the following language: ‘This is a mere continuance of the character which he all along filled, and any act which may be thus referred to a title distinct from the agreement cannot be considered as operating to take the case out of the statute.’ Howard v. Carpenter, 11 Md. 259, 276 ; Billingslea v. Ward, 33 Md. 48, 54 ; Boehm v. Boehm, 182 Md. 254, 265 , supra.” “Pomeroy, in the work cited [Specific Performance of Contracts (3d ed.) (1926)], says in Sec. 121 at p. 305, that possession, to be sufficient, must: * * in short, indicate the commencement of a new interest or estate * * *. The rule concerning exclusive possession applies with special force to tenants in common. Where a plaintiff claims as purchaser of land to the possession of which he and others are entitled as tenants in common, or joint tenants, no mere possession by him can avail as a part performance; no possession can suffice which does not show his individual right to the exclusion of the other co-tenants.

The reason of this is obvious, and results from the nature of such co-ownership. Each tenant is entitled to the possession of the common estate; the possession of one is that of all the others’ See annotation in 101 A.L.R. 923 , at pp. 1037-1041. See also Delnero v. Serra (N.J.), 63 A. 2d ²⁵² 896; Brotman v. Brotman (Pa.), 46 A. 2d 175 ; In re Yamall’s Estate (Pa.), 103 A. 2d 753 .” (Emphasis supplied.) 206 Md. at 145-46 , 110 A. 2d at 516 . As in Withers, supra, where the appellee had lived in the property continuously since her “mate” had left her, the appellant here has continuously used the premises as her home since her spouse left on November 23, 1966, and what the Court there stated concerning the appellee’s possession of the premises seems here particularly apposite.

The Court said: “There is nothing to show, at any time after the receipt of the notes, that her possession was referrable to anything except her status as co-owner. There is no evidence that she changed her position or was put to a disadvantage, by reason of the notes, so that it would be inequitable to the point of fraud, to permit the appellant to deny completion of the gift. If we assume that the notes which the appellant wrote were intended to constitute a present gift, rather than suggesting, as might be inferred from some of their language, a future donative intent, we think that under the tests of the cases, appellee has fallen far short of relating her possession solely to the gift. Rather, in the language of the cases, her possession certainly was not unequivocal evidence of the gift alleged in her cross-bill.” (Emphasis supplied.) 206 Md. at 146-47 , 110 A. 2d at 516-17 .

The Court was further of the view that the expenditure incurred for water-proofing was “more readily referrable to her status as a co-owner and an occupant of the property that it is as a donee of a part interest”; and that it might be inferred “that the expenditure would not have been made if the property were not to have been lived in indefinitely.” 206 Md. at 147 , 110 A. 2d at 517 . See also Boehm v. Boehm, 182 Md. 254, 265 , 34 A. 2d 447, 452 (1943), where parents, cotenants with their son and daughter-in-law, contended that their son and his wife had ²⁵³ entered into an oral agreement to sell their interest to them in the farm and that they had paid a portion of the selling price, had resided on the farm and had paid all taxes and interest on a mortgage. In concluding that the parol contract was unenforceable under the Statute of Frauds, the Court held the part payment of the purchase price, together with mere continuance of possession by the purchasers were not acts of part performance so as to remove the bar of the statute, the Court stating: “When possession is assumed as an act of part performance it must appear that the land has been delivered and the possession taken in pursuance of the contract and so retained and continued. The possession must be referable to the contract.

Mere occupancy, not shown to he in pursuance of the contract, does not constitute part performance. Miller’s Equity Procedure, Sec. 707; Semmes v. Worthington, 38 Md. 298 .” (Emphasis supplied.) 182 Md. at 265 , 34 A. 2d at 452 . Assuming, arguendo, that the appellant had met her burden of proof in establishing a donative intent on the part of Adrian DiTommasi, it is nonetheless clear that the appellant’s continued possession of the premises was a possession to which she was entitled of the common estate held by the parties and was not a possession which she undertook to enter into in reliance upon the alleged gift; there is no showing that “her possession was referrable to anything except her status as a co-owner.” Indeed, it appears, as it did in Withers v. Douglas, supra, that the improvements she made to the premises — by way of the installation of central air conditioning, storm doors and windows and a new bathroom sink — are all “more readily referrable to her status as a co-owner and an occupant of the property than [to that] ... as a donee of a part interest.” These expenditures appear to have been made by way of “creature comforts” in connection with her continued occupancy. The appellant’s reliance upon Masters v. Masters, 200 Md. ²⁵⁴ 318, 89 A. 2d 576 (1952), Shives v. Borgman, 194 Md. 29 , 69 A. 2d 802 (1949), Soehnlein v. Pumphrey, 183 Md. 334 , 37 A. 2d 843 (1944), Buckner v. Jones, 159 Md. 679 , 152 A. 515 (1930), Gorsuch v. Kollock, 139 Md. 462 , 115 A. 779 (1921), Whitaker v. McDaniel, 113 Md. 388 , 78 A. 1 (1910), Loney v. Loney, 86 Md. 652 , 38 A. 1071 (1898), Hardesty v. Richardson, 44 Md. 617 (1876) and Moale v. Buchanan, 11 G & J 314 (1840), is misplaced since in none of those cases was the grantee or donee a cotenant of the property.

Nor are the holdings in Cooper v. Davis, 226 Md. 371 , 174 A. 2d 144 (1961), or in Hohman v. Hohman, 164 Md. 594 , 165 A. 812 (1933), here applicable. In Cooper v. Davis, supra, the chancellor found a valid parol agreement to divide a 44-acre parcel of land owned by the parties as tenants in common into two 22-acre tracts, where each co-tenant took and maintained exclusive possession of his separate acreage. In Hohman v. Hohman, supra, the Court upheld the validity of an agreement between beneficiaries under a will to postpone a division of the estate they inherited so that the executors might exercise the power of sale given them under the will, and where the appellees, relying upon the agreement, had foregone rights to partition, to income to be derived from the property and had jointly, with the appellants, permitted sales of the property for their joint account. We concur in the conclusion reached by the chancellor that the appellee was not estopped, upon the facts in this case,