Hill v. Pinder

Parke, J., delivered the opinion of the Court. The bill of complaint in this case was filed by Leah E. Pinder, a colored woman, against J. Gorman Hill, an attorney at law of Cambridge. The complainant alleged: (1) that -she was the owner of a tract of land which she had obtained from her husband by deed dated September 10th, 1910, and that on March 11th, 1924, she entered into a contract in writing with the defendant for the sale of a part of the tract; and that this contract had been first read to 'her, and clearly and, correctly described that part of the tract which had been sold, and that she and the defendant then executed the contract; and (2) that the defendant Was her attorney ■and assured her that the deed, which he had prepared, conveyed the same land she had sold, and that, relying upon the defendant’s statements and his good faith, she, withoutheadIng or having read to her the deed, executed and delivered ⁴⁰² it on March 22nd, 1924, granting, as she -believed and intended, the part of the tract that she had sold to the defendant and his wife as tenants by the entireties; but that about two months later the complainant discovered that the deed conveyed not only the part sold and by her believed to have been conveyed, but also other and additional land of large value; and that, upon such discovery, the complainant made demand for the restitution of the land so wrongfully included in the deed, but the defendant declined to make restitution of the excess land so conveyed or to malee compensation therefor; and (3) that, before the complainant discovered the fraud, the defendant and his wife sold, and, on May 37th, 1924, conveyed, 'all the land in the deed described to-Charles H. Seward, an innocent purchaser for value, who-duly recorded his deed, and, for these reasons, the complainant had instituted no proceedings in equity to set aside her deed to the defendant and his wife, but had begun an action at law for the recovery of damages for the land so wrongfully and fraudulently procured by the defendant to be conveyed to him and his wife; and (4) that the contract of sale was kept by the defendant and was in his possession, but the complainant had neither the contract, nor duplicate, nor copy thereof, and that, since the institution of the action at law, she had demanded the contract of the defendant, but that he had neither given it or a copy thereof nor produced the contract for her inspection; 'and that it is important that said contract be produced at the time of said action at law, and that the object of the bill of complaint is “for the discovery of said contract for the purpose of making use thereof in. the trial of the said action at law for the recovery of damages for the fraud.” The bill then prayed that the defendant make full and true disclosure under oath concerning the-contents and execution of the contract of sale, -and be required to deliver to the complainant for her inspection and use in the trial at law the original contract or a copy;. and for general relief. ⁴⁰³ The answer of the defendant denied the existence of any professional relation 'and the allegations, of fraud and deceit, and asserted that he had bought and the complainant had sold exactly what had been conveyed by the terms of the deed. The defendant admitted that some time after the delivery of the deed and his sale of the land, the complainant had asked him to divide with her the profit which he had made on the re-sale, but that he had declined because ho was entitled to whatever profit resulted from his bargain.

The answer further denied that there had ever been between him and the complainant any written contract of sale. Accompanying these statements of fact were interposed defences (1) by way of a general denial of the sufficiency of the allegations of the complaint to entitle the complainant to any relief in equity, so as to claim this defence as fully nnd completely as if it had been “raised by a special plea ■or demurrer to the bill” ; and (2) by asserting that the relief sought could be fully and completely obtained by interlocutory proceedings in the action at 1'aW, which was pending at the time of the institution of these proceedings in equity. This answer was verified by the defendant and the affidavit contained the statement that the allegations in ■said answer partaking of the nature of demurrers were not intended for the purpose of delay. Four months later, on the application of the complainant, the court passed an order granting leave to the parties to take testimony before one of the examiners in equity.

The defendant apparently asked that the demurrer embodied in his answer should he heard and sustained; and then that the cause should he heard upon bill and answer, because the order of the chancellor expressly ■declared that, “his contentions in these respects having been •overruled,” and the parties so desiring, the testimony should be taken in open court. Before any testimony was taken under this order, the defendant asked and got leave to file .a supplemental answer, which asserted that, expecting tho bill of complaint to be dismissed on tbe grounds of demurrer incorporated in his original answer, he had not ⁴⁰⁴ thought it necessary to go into a detailed and complete recital of the facts, but had contented himself with a denial of the allegation of a written contract signed by himself and the complainant, because he and she 'had not signed together a written contract of sale, but, inasmuch as the court might desire a full and complete disclosure of any and all things relative to the sale, he was moved to make a further answer. The new matter of the supplemental answer was that, the single instrument of writing in the transaction was an option signed by Leah E. Pinder’ only, and witnessed by defendant’s wife; that the option was written on the upper-portion of -a sheet of legal paper, and upon the lower half there was an agreement signed by Charles E. Pinder and Thomas P. Pinder in reference to hunting or trapping on the-marsh land on which the option was taken; that the defendant kept the paper writings, which ‘he placed in the deed he-received from the complainant, -and, when he sold the land to Charles IT. Seward, the defendant tore the sheet of paper along the middle fold and put the portion with the option in the deed which he delivered to Seward, and the lower-half was retained by the defendant and subsequently delivered by him by request to Charles E. Pinder; but that since - these deliveries of the two halves the defendant has never seen either the option or the hunting agreement, although he liad made diligent effort and inquiry to locate the option given with the deed to Seward.

The defendant’s supplemental answer set out the form of the option, according to his recollection, as follows: “Received of J. Gorman ITill the sum of one dollar for which I agree to sell him all my marsh land situated on the east side of Bear Garden Pond, containing about two hundred acres, more or less, at. and' for the sum of one thousand dollars, if accepted: this week. If accepted, the one dollar paid to be a part of the purchase price. Title to be a good and merchantable-one. “Test: Willie B. Hill. Leaii E. PiNDEB..(Seal)”' ⁴⁰⁵ The defendant- alleged that he did not accept this option nor was the sale made in conformity with its terms, hut that the next day after the option was signed, the defendant and complainant visited the property, and she informed the defendant that she would not sell all of the property mentioned in the option, hut would reserve therefrom about five acres to the west of Lear Tree Island; and that thereupon the two made a new verbal agreement for the purchase and sale of the property, whose lines the complainant gave to the defendant, and he wrote them down upon the back of an old envelope, prepared the deed in exact conformity with this description, and then destroyed the envelope; and that the defendant did not then know the lines and hounds of the property, but had relied entirely upon the description given him by the complainant of what he was buying.

On the day the supplemental answer was filed, the testimony was taken in open court by the parties in support of the allegations- of fact set forth in their respective pleadings. The cause was then submitted and the chancellor declared by decree that the preponderance of evidence established that the deed of complainant to the defendant and his wife described and conveyed lands “of greater area and value than those agreed to be sold in the agreement between the parties mentioned in evidence, which the defendant alleges has been lost,” and ordered “that the defendant shall produce and file the said agreement in these proceedings, if the same can be found by him, so that it may be used by the parties in the trial” of the pending action at law between them. The parties and the chancellor, in all the proceedings, treated the bill of complaint as one for discovery alone, when it was one for both discovery and relief; and so the questions raised on this appeal must be determined with reference to this double aspect of the bill of complaint. 1. The original answer either admitted or controverted all the allegations of fact in the -bill of complaint, and then insisted, in conclusion, upon the same benefit as if the ⁴⁰⁶ pleader Lad demurred to the whole hill of complaint.

This is permitted by equity practice, but its effect is to postpone any benefit to be derived by this course until at the hearing of the cause. Code, art. 16, secs. 179, 173; Miller's Equity, sec. 170; Buckner v. Cronhardt, 132 Md. 612 , 616 ; 1 Danielles Chancery Pl. & Pr. 714, 715. The record does not clearly disclose the fact, but apparently the chancellor considered the demurrer before any testimony was taken, and held the bill of complaint sufficient. The grounds of the demurrer were: (a) that the bill of complaint was not verified by affidavit and that the bill of complaint did not allege that the paper writing involved contained material and necessary evidence, and that the plaintiff could not safely proceed to the trial of her case without the benefit of such testimony; and (b) that the same relief could have been obtained in the suit at law between the parties under the provisions of sections 106, 107 and 108 of article 75 of the Code.

(a) The present proceeding’ is not an interlocutory application to a court of equity under section 26 of article 16 of the Code, to compel a party to an action at law or in chancery to produce either original writings, or copies certified by 'a justice of the peace of such writings as contain evidence pertinent to the matters in issue or in dispute between the parties, to be used as evidence at the trial of such cause, but is a formal bill of complaint for discovery and general relief under the general equitable power of a court of chancery. Even if it be granted, ex gratia argumenti, that the plaintiff had made an interlocutory application under section 26 of article 16, the law did not require the statutory application to be under oath, but it simply exacted, as a condition precedent to the court’s giving an order to produce either the original writing desired or its .copy certified by a justice of the peace, that the party who had made the application should first satisfy the court on oath or affirmation that the writing contained material and necessary evidence, and that she could not safely proceed to trial of her case without the benefit of its testimony. ⁴⁰⁷ The provisions relied upon by the appellant do not go to-the form of the application pursuant to the terms of section 26 (Act of 1798, ch. 84), but merely prescribe the minimum degree of substantiation of the essential grounds for the application before the chancellor may pass the order sought. An early illustration of this construction of the statute is found in Williams v. Hall, which is reported as a foot note to Jones v. Magill, 1 Bland, 177 , beginning at page 1.93. The bill of complaint in Williams v. Hall was filed on July loth, 1809, and, in the course of the proceedings, the plaintiffs presented their petition on February 9th, 1811, ashing for the production of certain paper writings of the-defendants, David Stewart & Son, but this application was “without oath or affidavit of any one,” and Chancellor Kilty refused to grant the petition, as “the order prayed for cannot be made without a compliance with the requisites of the Act of 1.798, ch. 84.

After which one of the plaintiffs, Williams, filed his affidavit of the truth of the facts and allegations stated in their petition, asking for the production of books and papers”; and four days later the chancellor, “On considering again the within petition, together with the affidavit now annexed thereto” gave the order. See Duvall v. Farmers’ Bank, 2 Bland, 686 . In the present case, the chancellor did not pass any order until -after answer and proof. The plaintiff testified and her evidence fully gratified the demands of the statute.

It should be noted that the Act of 1798, ch. 84 (Code, art. 16, sec. 26), has, as was said in Winder v. Diffenderfer (1829), 2 Bland, 166 , 195, -always been truly considered as merely an -affirmance of the general equity powers of this fAurt. The original jurisdiction-of a: court of equity has not been abolished in Maryland by statutory provisions providing, in particular instances, for the production of books and papers and other writings, although the broad statutory remedies have lessened the use of bills of discovery. When the right is not expressly taken away by the statute, the original jurisdiction of chancery, which is as ample and ⁴⁰⁸ complete as the necessity, is not ousted. Union Passenger Railway Co. v. Baltimore, 71 Md. 238 , 405 ; Miller’s Equity, sec. 737, p. 838.

So, the sufficiency of the bill for discovery and relief in the instant cause is to be determined by its conformity to the general rules governing equity pleadings, and not by the bill’s verbal reproduction of the statutory prerequisites to the granting of an order after an interlocutory applicar tion by virtue of section 26 of article 16 of the 'Code. In the bill the pleader has set out that relief is claimed by reason of an action now depending in a court of law between the plaintiff and the defendant; and has, also, stated facts from which clearly and definitely appear the nature of her case, .and how an injury ha® resulted to her therefrom, entitling her to maintain the action at law against the defendant for the recovery of damages therefor; the possession by the defendant of the paper writing which contains the contract upon whose production and proof the plaintiff’s cause of .action at law necessarily depends, and which action she is unable to prove, except through the discovery and production thereof by the defendant, who is charged with having refused to let the plaintiff either see or have a copy thereof. These averments in a bill for discovery 'alone entitle the plaintiff to that relief. Miller’s