Donovan v. Kirchner

WENNER, Judge. We are here presented with a dispute over title to real property, resulting from the interlineation of the name of a second grantee in a deed, after the grantor had executed the deed and placed it in escrow. The name of the second grantee was achieved by interlineation at the request of the original grantee, but without the grantor’s consent. The added grantee has died, and an interest in the condominium has been claimed by the heirs of the added grantee.

Their claim is disputed by the initial grantee, who intended, by adding the second grantee’s name, to create a joint tenancy with a right of survivorship. The Circuit Court for Worcester County granted summary judgment in favor of the initial grantee, declaring that the second grantee’s heirs “have no legal interest” in the property. Not surprisingly, this appeal followed. FACTS In April 1983, appellee, Joseph W. Kirchner (Kirchner), entered into a contract with John A. Cummings (Cummings), agreeing to purchase Unit T-1706, Carousel Center Condominium, Ocean City, Maryland (the condominium).

Kirchner made a deposit of earnest money and procured a commitment for financing from Second National Building and Loan (SNBL). ⁴¹⁴ Unable to attend the scheduled settlement, Cummings met with the settlement officer, Myra A. Crowe (Crowe), an employee of South Atlantic Title Company (South Atlantic), on the morning of settlement and signed the deed of conveyance and the settlement sheet. Having done so, Cummings left these items with Crowe. The executed deed named Kirchner as the sole grantee. Kirchner was accompanied to settlement by Stella C. Donovan (Mrs. Donovan).

Kirchner reviewed and signed the settlement documents presented by Crowe, including a purchase money deed of trust in favor of SNBL. All of the documents named Kirchner as the sole purchaser and borrower. Kirchner then gave Crowe-a check covering the remaining balance of the purchase price and settlement costs. Near the end of settlement, Kirchner asked that Mrs. Donovan’s name be added to the deed as a joint tenant, so that title to the condominium would pass to the survivor upon the death of either.

Crowe obtained SNBL’s approval, and was told by SNBL that Mrs. Donovan’s name need not be added to the deed of trust. Crowe did not seek Cummings’s approval of adding Mrs. Donovan’s name to the deed. As recorded, the deed reflected that Cummings had conveyed the condominium to “Joseph W. Kirchner and Stella C. Donovan, Joint Tenants parties of the second part, their heirs and assigns in fee simple forever.” It is obvious from looking at a copy of the deed that Mrs. Donovan’s name was added after the deed was first prepared, because the type is different and darker than all other typed portions of the document. It is also obvious from a look at the original deed that in two places the clause “party of the second part” was changed to “parties of the second part,” and in another place the clause “his heirs and assigns” was changed to “their heirs and assigns,” by using “white-out” over the original language and typing over the “white-out.” Mrs. Donovan died on August 25, 1986, in an automobile accident.

Her will named her children, appellants, John T. Donovan and Patresa C. Barnhart, as personal representatives ⁴¹⁵ and sole residuary legatees. An Information Report was tiled by appellants with the Register of Wills for Anne Arundel County, indicating that the condominium was held by Kirchner and Mrs. Donovan as joint tenants, and Kirchner paid inheritance taxes on one-half of its equity. When Kirchner contracted to sell the condominium in 1992, the attorney handling settlement asked appellants to sign some paperwork, appellants refused to do so, and claimed a one half-interest in the condominium. In response, Kirchner filed a Complaint for Declaratory and Equitable Relief.

Appellants’ claim that the interlineation of Mrs. Donovan’s name in the deed created a joint tenancy with Kirchner. They then assert that Kirchner’s execution of the deed of trust in favor of SNBL severed the joint tenancy, creating a tenancy in common. Thus, appellants contend that Mrs. Donovan’s interest in the condominium, although not specifically mentioned in her will, passed to appellants upon Mrs. Donovan’s death, rather than to Kirchner. In his complaint for declaratory relief, Kirchner asserted that appellants possess no interest in the condominium because the addition of Mrs. Donovan’s name to the deed was a nullity, leaving him the sole owner of the condominium.

Kirchner alternatively asserted in his complaint that he executed SNBL’s deed of trust before adding Mrs. Donovan’s name to the deed. Thus, if a joint tenancy was created, it was created after encumbering the condominium and the joint tenancy was therefore not severed, leaving Kirchner as surviving joint tenant. As a final alternative, Kirchner’s complaint asserted that, if appellants’ interpretation of the transaction was correct, severance of the joint tenancy was contrary to the express intentions of all of the parties, unjustly enriching Mrs. Donovan’s estate and appellants. Consequently, Kirchner sought the imposition of a trust upon appellants’ purported interest in the condominium and that appellants be ordered to convey their interest to him.

Both Kirchner and appellants moved for summary judgment. In support of his Motion for Summary Judgment, ⁴¹⁶ Kirchner provided affidavits from himself and from Crowe, attesting to the events that occurred at settlement. Following a hearing, the trial court accepted Kirchner’s assertion that he had executed SNBL’s deed of trust before adding Mrs. Donovan’s name to the deed from Cummings, creating a joint tenancy after encumbering the condominium, and declared Kirchner to be “the sole surviving joint tenant,” saying: Well, I certainly think- that there is an irregularity here where all the documents beforehand are prepared from Mr. Cummings to Mr. Kirchner. The only document that includes Miss [sic] Donovan’s name is the deed.

From the affidavits, I feel comfortable in saying that the settlement had been completed, that the deed had been executed, the deed of trust had been executed, the money had been delivered at the time that the deed was then altered to include Miss Donovan’s name. And it’s clear to me the intention of that act was to create a joint tenancy. And I think the equitable relief certainly should be done in this particular case. For that, I don’t find that the unities were destroyed because, in fact, Miss Donovan’s name was added after the deed of trust and settlement had been completed.

ISSUES When reviewing a grant of summary judgment, we are obligated to determine whether the trial court was legally correct in granting summary judgment. Southland Corp. v. Griffith 332 Md. 704, 712 , 633 A.2d 84 (1993). Nevertheless, appellants urge us to bifurcate our review of the trial court’s grant of summary judgment. Despite challenging his final disposition of the matter, appellants accept and rely upon the trial court’s holding that the interlineation of her name created a joint tenancy between Mrs. Donovan and Kirchner. 1 We are ⁴¹⁷ unable to determine whether the trial court was correct in holding that the joint tenancy was not severed by Kirchner’s execution of a deed of trust in favor of SNBL, however, without first determining whether the trial court correctly determined that a joint tenancy was initially created.

We have thus reframed the issues presented by appellants as follows: I. Did the trial court err by considering the affidavits submitted by Kirchner? A. Does the parol evidence rule preclude consideration of any evidence regarding the circumstances under which Mrs. Donovan was added to the deed? B. Does the “Dead Man’s Statute” preclude consideration of Kirchner’s affidavit regarding the circum ⁴¹⁸ stances under which Mrs. Donovan was added to the deed?

II

Is there a dispute of material fact such that summary-judgment was inappropriate in this case?

III

Whether the interlineation of Mrs. Donovan’s name without the consent of the grantor while the deed was in escrow was effective to vest Mrs. Donovan with an interest in the condominium upon delivery of the deed by the escrow agent? We conclude that at least one of the affidavits presented by Kirchner was admissible, that summary judgment was properly granted, and that the interlineation of Mrs. Donovan’s name was a nullity. We shall therefore affirm the judgment of the trial court. 2 DISCUSSION I. Summary Judgment Maryland Rule 2-501 provides in part: ⁴¹⁹ (a) Motion.—Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party filing is entitled to judgment as a matter of law. The motion shall be supported by affidavit if filed before the day on which the adverse party’s initial pleading or motion is filed.

(b) Response.—The response to a motion for summary judgment shall identify with particularity the material facts that are disputed. When a motion for summary judgment is supported by an affidavit or other statement under oath, an opposing party who desires to controvert any fact contained in it may not rest solely upon allegations contained in the pleadings, but shall support the response by an affidavit or other written statement under oath. (c) Form of Affidavit.—An affidavit supporting or opposing a motion for summary judgment shall be made upon personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavit. (A) Parol Evidence Appellants contend that Kirchner’s and Crowe’s affidavits should not have been considered by the trial court because the parol evidence rule precluded the facts contained in them from being introduced into evidence.

The parol evidence rule precludes the introduction of evidence “contradicting, adding to, subtracting from, or varying the terms of a Deed, or controlling its legal operation and effect, except where it is impeached for fraud, or where it is sought to be reformed upon the allegation of fraud, accident or mistake.” Canatella v. Davis, 264 Md. 190, 200 , 286 A.2d 122 (1972) (quoting Mullins v. Ray, 232 Md. 596, 598-99 , 194 A.2d 806 (1963)). ⁴²⁰ These exceptions to the parol evidence rule are not exhaustive, however. For example, parol evidence is admissible to prove that a deed’s named grantee holds nothing more than bare legal title, while a stranger to the deed owns the beneficial interest under a resulting trust. Siemiesz v. Amend, 237 Md. 438, 441 , 206 A.2d 723 (1965); Fitch v. Double “U” Sales Corp., 212 Md. 324, 330 , 129 A.2d 93 (1957). Parol evidence may also be introduced to contradict a deed’s recited consideration.

Dorsey v. Beads, 288 Md. 161, 170 , 416 A.2d 739 (1980) (citing Rinaudo v. Bloom, 209 Md. 1, 8 , 120 A.2d 184 (1956) and Koogle v. Cline, 110 Md 587, 73 A. 672 (1909)). Another established, although infrequently mentioned, exception to the parol evidence rule is that which allows the introduction of parol evidence in order to prove that a deed or other instrument was altered after being executed. In Maryland, alterations apparent on the face of a deed are presumed to have been made prior to, or contemporaneously with, its execution. Wickes’ Lessee v. Caulk, 5 H. & J. 36, 41 (1820) (“[I]t is incumbent on the party who wishes to avoid a deed by its erasure, to prove that the alteration was made after its execution and delivery.”); see also Murdock v. Schindel, 128 Md. 633, 638 , 98 A. 149 (1916) (“[T]he presumption always would be, that the seal was affixed to the instrument on its delivery, in the absence of evidence to the contrary.”) (quoting Trasher v. Everhart, 3 G. & J. 234 (1831)); cf. 15 Williston on Contracts § 1916 (3d ed. 1972); 3A C.J.S., Alt eration of Instruments § 101 (1973); 4 Am.Jur.2d, Alteration of Instruments §§ 80-83 (1962); 30 A.L.R.3d 571 (1970) (each discussing various presumptions as to time of alteration).

The presumption that an alteration was made before execution is, however, a rebuttable presumption, and relevant competent evidence may be presented to prove that the alteration occurred subsequent to the document’s execution. See 15 Williston, supra, § 1916 at p. 873; 3A C.J.S., supra, § 105; 4 Am.Jur.2d, supra, § 86. ⁴²¹ For instance, in Union Bank of Maryland v. Ridgely, 1 H. & G. 324, 416 (1827), it was said that “the defendant may, [under a plea of non est factum ], give in evidence anything which goes to show that the instrument of writing was originally void at common law, as lunacy, fraud, coverture, & c. or that it had become void subsequent to the execution, and before the bringing of the suit, as by erasure, alteration, & c.” 3 In Burckmyer v. Whiteford, 6 Gill 1 (1847), the trial court refused to allow a witness to testify as to the reasons for the witness’s alteration of a bill of exchange. The Court of Appeals reversed the trial court, saying, “If it was of any importance in the cause to know who erased the special endorsement spoken of, surely it was but reasonable that the witness should be allowed to state when, why, and under what circumstances, the erasure was made.” Id. at 13 . In Edelin v. Sanders, 8 Md. 118 (1855), the plaintiff, the named payee on a bond, was attempting to collect on the bond from the executor of the bond maker’s estate.

The trial judge allowed the executor to introduce evidence of prior suits against the plaintiff both by the maker and the estate, grounded on the executor’s contention that the payee’s name had been altered. The Court of Appeals reversed the trial court after examining the instrument, and finding no erasures or other alterations, saying: If, in point of fact, it was obvious on inspection that the paper had been altered, it was easy to have it noticed in the exception, either by an agreement to that effect or by calling to the stand an expert in handwriting, and asking his opinion as to its appearance. Had this been done, and had the witness testified that the paper appeared to have been ⁴²² altered or any portion of it erased, we are of opinion the testimony [objected to] in the first bill of exceptions ... would have been admissible as tending to show it had not been delivered in its then state. Id. at 130-31 .

If an alteration had been evident, the particular evidence objected to would have then been admissible to show fraud on the part of the plaintiff by showing his relations and dealings with the maker of the bond. Id. at 131 . Other cases involving the alteration of deeds and other instruments review the parol evidence presented at trial without discussing its admissibility, thus tacitly approving its admission. Downs v. Downs, 154 Md. 430, 434-37 , 140 A. 831 (1928) (alteration of deed); Silverberg v. Silverberg, 148 Md. 682, 692 , 130 A. 325 (1925) (alteration of deed); Gerlach v. Warren, 146 Md. 668 , 127 A. 411 (1925) (alteration of installment land sales contract); Clark v. Creswell, 112 Md. 339 , 76 A. 579 (1910) (alteration of deed).

Parol evidence regarding the circumstances surrounding the alteration of an instrument is admissible because its object is “not to vary the terms of the instrument, but on the contrary to prove the terms thereof as originally executed.” 4 Am.Jur. 2d, Alteration of Instruments § 86 (1962); see also Dolan v. Carmel Canning Co., 71 Cal.App. 197 , 234 P. 926, 928 (1925) (“Where it is claimed that an instrument in evidence fails to express the true contract or agreement of the parties by reason of alteration therein, extrinsic evidence is always admissible to prove that condition.”). As we noted earlier, the alterations here at issue are readily apparent on the face of the deed. The insertion of Mrs. Donovan’s name is clearly of different type than the type on the remainder of the deed, and the use of “white-out” for changing the pronoun from “his” to “their” and changing of the word “party” from singular to the plural is obvious. There is nothing whatever in the record before us indicating that Cummings was contacted, or consented to the changes.

Even though it may be presumed that the alterations were ⁴²³ made before Cummings executed the deed, it was permissible for Kirchner to present parol evidence to prove otherwise. (B) The Dead Man’s Statute Appellants next contend that, even if the affidavits are admissible under the parol evidence rule, Maryland Code (1973, 1989 Repl.Vol.), § 9-116 of the Courts and Judicial Proceedings Article (CJP), commonly known as the “Dead Man’s Statute,” renders the testimony contained in Kirchner’s affidavit inadmissible. CJP § 9-116 prevents “[a] party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them” from testifying “concerning any transaction with or statement made” by the deceased unless the party is called to testify by the opposite party or such testimony has already been received. We are not at all certain that Kirchner’s affidavit concerns a “transaction with” Mrs. Donovan.

See Schifanelli v. Wallace, 271 Md. 177, 183-87 , 315 A.2d 513 (1974); Ridgley