Greer v. Baughman

Eccleston, J., delivered the opinion of this court. In these appeals it is necessary to ascertain, whether, at any time, there existed a resulting trust in favor of Mary Greer, in the lot of ground described in the proceedings, and now in controversy. A lease of the property for ninety-nine years, renewable forever, was executed on the twenty-fourth day of June, in the year eighteen hundred and forty-three, by James Howard McHenry to George Baughman. On the 31st of December 1845, he assigned the lease to William J. Ward, in trust for the sole and separate use of Mary Jane, the wife of G. Baughman, and in case of her death, for the use of the children of the said Mary Jane by the said George.

The lease and the assignment were both recorded on the 19th day of September 1848. i Mary Greer alleges, in her bill, that the lot was contracted for, at her request, by G. Baughman, as her agent, the same to be leased to her by McHenry. That with her moneys the lot was improved by the erection of a dwelling house thereon. But through some inadvertence of the agent of said McHenry and of George Baughman, the lease of the lot was executed by McHenry to Baughman, as lessee, instead of her (the said Mary Greer) being made the lessee j all which was done without her knowledge at the time. And when it became known to her, a long time after, the proper correction was promised by Baughman and McHenry’s agent, or that Baughman should assign the leasehold property to her, or as she might, direct. ²⁶⁸ The original bill also states, “that George Baughman, believing such lo be the direction, or the wish, or the eventual purpose of the complainant, as she is given to understand and believes was the said Baughman’s impression, did, as she finds js the fact, .convey said lot of ground, as improved as aforesaid, to William J. Ward, Esquire, of Baltimore, in trust for the .separate use of Mary Jane Baughman, wife of the said George and daughter of the complainant, and for the children of said Mary Jane, by her marriage with the said George, fin case of the death’ of .said Mary Jane.” Thus it will be seen, there is no record or written evidence of title to the lot in Mary Greer.

She, therefore, can have no claim to the property, nor can her daughter or grandchildren have any, as derived from her, by virtue of the assignment in trust to William J. Ward, unless a resulting trust in Mrs. Greer is sustained by the proof. In Faringer vs. Ramsay, et al., 2 Md. Rep., 375 , there was an effort, by the trustee of an insolvent petitioner, to establish a resulting trust in opposition to two deeds. And there the court make a quotation from Dorsey vs. Clarke, 4 Har. & Johns., 557, where it is said: “The authorities are clear, that the payment of the money by the cestui que trust must bo clearly proved, otherwise you render insecure titles depending pn deeds and other written documents.” The cases on this subject are examined by Chancellor Kent, yvith his usual ability, in Boyd vs. M'Lean, 1 Johns. Ch.

Rep., 582. He there says: “The cases uniformly show, that the courts have been deeply impressed with the danger of this kind of proof, as tending to perjury and the insecurity of paper title; and they have required the payment by the cestui que trust to be clearly proved.” Although he concedes, that the rule has been established by the weight of authority, which allows parol proof of a resulting trust, yet it is evident, that if the point had been res integra he would have been inclined to think, “that such evidence is too dangerous in its consequences.” And ho speaks of the case of Gascoigne vs. Theving, (should be Thwing,) 1 Vern., 366, as being a salutary admonition in regard “to the caution with which such proof ought to be examined.” ²⁶⁹ The decision in Boyd vs. McLean was in support of the resulting trust. But it was upon strong and convincing proof, sueh as the chancellor considered “decidedly in. favor of the .charges contained in the bill.” Three witnesses declared they were present when the parties, being together, made or acknowledged the alleged agreement, fn addition to this testimony as to the original transaction, the confessions of the defendant to the same facts were proved by a number of other witnesses. And there were corroborating circumstances of considerable moment.

But notwithstanding ail this weight of evidence before him, the learned chancellor considered it proper to examine the case with much care and minuteness. In Lench vs. Lench, 10 Ves., 517, where the material evidence came from the trustee, who had been made a competent witness by a pelease, Sir William Grant, as Master of the Rolls, says: “She swears to no feet or circumstance capable of being investigated or contradicted, but merely to a naked declaration, supposed to be made by the husband himself, admitting that the purchase was made with the trust money. That is, in all cases, most unsatisfactory evidence, on account of the facility with which it may be fabricated, and the impossibility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the declaration.” And again, on page 519, it is said: “If evidence of this sort could be proceeded upon, standing unsupported, and in some degree .contradicted by the circumstances, it ought to stand wholly uncontradicted by other evidence.” Keeping in view these authorities, which show what clear and satisfactory parol proof is necessary to establish a resulting trust, let us examine the proof now relied upon.

We have seen that the lease to G. Baughman is the instrument, in opposition to which Mrs. Greer is endeavoring to show a resulting trust in her favor. In his answer as a defendant, and in his testimony as a witness, he acknowledges that the lot was contracted for by him, as agent for Mrs. Greer, and that the improvements thereon were made by her and paid for with her means. His creditors have laid attachments upon this property, insisting that Mrs. Greer never had any legal or ²⁷⁰ equitable title to it, but that Baughman was the real owner, that the improvements thereon were made with his means, and that his-assignment of the same was fraudulent as against his creditors. In order, therefore, to secure the property to his wife and children, he was deeply interested in showing that he never had any real title or claim thereto, but that Mrs. Greer was the true owner; at least until the assignment, which he says was made by her direction and at her request.

Under such circumstances his statements should be considered with much caution, because they come from a witness operated upon by the influence of a strong bias. He says, that about nine months after the contract had been made, the lease was executed to him by mistake, and when it was presented to him by the agent of the lessor, and the mistake was discovered, either the agent or he remarked it would make no difference, as he could convey it to Mrs. Greer. He does not recollect at what time he first mentioned to his mother-in-law that the lease had been executed to him. She had always said that the lot and improvements were intended by her for his wife.

And the assignment from him was made at the instance and request of Mrs. Greer. After the execution of the lease he placed it, he says, in his safe among his private papers, intending to have it recorded the first time he should have occasion to go to the court house, but forgot it until urged by Mrs. Greer to make the conveyance, and after that was done it was placed in the hands of Mr. Ward, the trustee, who he supposed overlooked it as he had done before, and neither the lease nor the assignment was recorded until the 19th of September 1848. Speaking of the improvements, Baughman says, he does not remember, certainly, what they cost, but believes the sáme to be about $1700, and was paid by the means of Mrs. Greer. Her means, at the time of payment, consisted chiefly of Baltimore city 6 per cent, stock.

She had some cash to which she added by the sale of valuable jewelry and other personal property, the proceeds of which were put -into his hands, which he used in the purchase of "rail road notes,” (as they were called,) and invested them in city 6 per cent. ²⁷¹ Stock, which, for convenience sake, (as he was to act as her agent,) was always clone in his own name he believes. He bought the rail road notes at or about 60 cents, and sold the stock, either in whole or in part, to Sloan, White & Co.,- at 107 cents, taking lumber in payment, which Mr. Shipley, the builder of the improvements, received as so much cash. in his testimony, Baughman says, there Was a contract between Mrs. Greer and L. G. Shipley, by which the latter was to make the improvements according to a plan agreed upon; that the management of the details of the business connected with the leasing of the lot and making the improvements were attended to by Baughman, under the' direction of Mrs. Greer. That some money was paid to Shipley, whether she paid the same herself or through the witness, he dries not remember, but the chief payment was made as stated above. Upon cross-examination this Witness says, that at sundry times, before and after his marriage, Mrs. Greer, he believes, did receive moneys “as heir-at-law of the estate’ of Caleb flaJJ.” L. G. Shipley, a witness for the complainant, states, that he' built the bouse on the lot in dispute, under a contract which was presented to him by Baughman, on behalf of Mrs. Greer, she being first introduced to the witness by him; that the contract for the building was signed by the witness and Mrs. Greer, and witnessed by Baughman.

That during the progress of the improvement several changes in the plan were made at the instance of Mrs. Greer. When the house was. completed she and her son, then of age, and Mr. Baughman’s family occupied it or moved into it. The witness received his payments from G. Baughman. At the commencement of the' building, Mrs. Greer told the witness the money which she' had for the building was invested in stock, and that she always wanted a few days’ notice when he wished for money, tío’ accordingly always gave notice to Baughman, who Mrs. Greer said was to act as her agent.

In the spring of 1843, Baughman offered the witness $300^ of stock in payment, which lie declined taking. The certificates of stock were handed to him, when, to the best of his ns ²⁷² collection, lie saw the name Of Mrs. Greer on them, an'd’ to' the best of his recollection' it was Baltimore and Ohio Rail' Road stock. Thé proof shows, that on the l'7th of February 1843, Sloan,' White & Ob. agreed, in writing, to furnish L. G. Shipley, on account of G. Baughman, twelve hundred dollars in lumber, for Which they" agreed to receive in payment city of Ballimbre six per cent, stock, at $107 to the hundred, and that they' would also receive in payment of Mr. Baughman’s account,amounting to $227.14, city six per cent, stock, at thé' Sainé' price; all of said stock to be delivered oil or before thé first of May tlieP' ensuing. And', “in the event of Mr'.

Shipley’s failure to complete Mr. Baughman’shouse, according to contract,” it was agreed to return to Baughman the residue of the stock which might be due after deducting the amount of Shiplby’s' account, together with Baughman’s account due at' the ddte of the agreement. Gn this agreement is the following endorsement: “Rec’d of Mr. George Baughman, this 2nd day of May' 1843, a certificate of city six per' cent, stock for thirteen hundred and thirty-three dollars TY-ff, with twenty dollars interest on sanie frbrn 1st July, being agreeable to the within statement. Sloan, Weéite & Co.” C. B. White, of the firm above mentioned, testifies, that ófr one occasion Baughman told him,'or lie was led to beliéve, from what Baughman told him, that he was making tlie'iih vestment for his mother-in-law. This was when witness called on Baughman for a transfer of city stock, under the contract, and he then said the money, or stock, or notes belonged to his' mother-in-law, and he was making the investment for her.

It appears, from the testimony of the deputy register of- the city of Baltimore, that on the 29th of April 1843, by the order of G. Baughman, there was transferred to Sloan, White & Co., $1333.78 of six per cent, stock of the city; and in addition to this, the witness says, “there was more stock than that.” The transfer cieili in the office of the Baltimore and Ohio ²⁷³ Rail Road Co. testifies, that no stock of said company has been standing in the name of Mrs.