Howard v. Carpenter

Eccleston, J., delivered the opinion of this court. The will of Charles Carroll of Carrollton, contains three clauses, devising property in trust for his daughter Mrs. Catón} to which clauses particular reference has been made, in argument, for the purpose of ascertaining the nature and extent of her authority or right to dispose of, or to lease the property in dispute. The deed creating her title, conveyed the property to the trustees therein named, “in trust for the uses and trusts specified and declared of and concerning the property bequeathed to them in trust for the use and benefit of Mrs. Catón,” by her father’s will. The appellants contend, that in view of the recitals in the deed, in connection with the provisions contained in the first and third clauses of the will referred to, the deed must be re ²⁷⁴ garded as having reference to them; and therefore Mrs. Catón had only a life estate, with a power to lease or sell.

The appellee insists, that the deed should be construed as being governed by the second clause of the will, which, instead of simply giving her a power to dispose of the property devised, conferred upon her the unlimited and absolute right, of disposition. Our view of the case renders it unnecessary to decide which is the proper construction of the deed. The defendants’ exhibit A, is the instrument on which the complainant chiefly relies in support of his bill, and is as follows: “Maryland, Si: — Articles of agreement, entered into this --day of July 1846, between Mary Catón of the city of Baltimore, on the one part, and W. H. Carpenter of Baltimore county, on the other part; witnesseth, that for and in consideration of the covenants herein stipulated, on the part of W. H. Carpenter, the said Mary Catón doth engage to grant a lease to the said W. H. Carpenter, for a period hereafter stated, for all that part or parcel of land,” &c. And after describing the premises, the instrument thus proceeds: “and the said Mary Catón, engages to give a lease for the foregoing premises, as soon as a house shall be built, of the value of the annual rent and all other conditions be complied with, for the term of ninety-nine years.

And the said W. H. Carpenter, engages to pay to the said Mary Catón for the first year, one dollar and five cents per acre, annually, from the first day of January 1847, in half yearly payments, as a rent for the said premises, clear of all deductions for taxes, levies, contributions or otherwise, for the next nineteen years, from the 1st January 1848, two dollars and ten cents per acre, per year, in semi-annual payments as aforesaid, clear of all deductions as aforesaid, and thereafter two dollars and fifty cents, per acre, per year, with the privilege of buying out at $41.66, forty-one dollars and sixty-six cents per acre. That he will within three years build a house on the premises of stone, or brick, or wood, worth an annual rent equal to the rent of the premises. For the full performance of each and every article of the above ²⁷⁵ contract, the said Mary Catón and the said W. H. Carpenter, bind themselves, their heirs, executors, administrators and assigns, by these presents. In witness whereof, the parties have hereunto set their hands and seals respectively, this ■-day of Jnlv 1846 y Signed, sealed and delivered in the presence of, the same having been first read to Mrs. Catón. — M. C. Jackson.” We need not inquire whether this instrument, according to the English decisions, should be construed to be a lease, or an agreement for a lease; for if, irrespective of our registration laws, its language would make it a lease, then being for more than seven years, and not having been acknowledged and recorded, as required by those laws, it could pass no title at law.

And if, under its very defective execution, it could have any effect in a proceeding in equity like the present, it could only be the effect which should be given to an agreement for a lease. In Anderson vs. Critcher, 11 G. & J., 450 , the appellee sued the appellant in an action of covenant to recover rent, under a contract signed and sealed by both parties, dated the 24th of April 1833, in which it is said, Critcher “binds himself, his heirs, &c., to give a lease for ten years,” &c. The contract provides, “that the house which the said Donohoo and Anderson may put up for their own convenience, they can take down and carry off at any time, but they must give said Critcher or his assigns, notice of the intention to give up the property on or before the month of June, (otherwise it will be theirs for another year.) The said Donohoo and Anderson, bind themselves, their heirs, <fcc., to pay to the said Critcher, one hundred and fifty dollars, for the rent of one thousand eight hundred and thirty-four, and two hundred dollars per year after, the rent to be paid (or carry interest) after the expiration of the fishing season.” The court did not deem it necessary to determine, whether the agreement was a lease or a mere agreement for a lease. They however concurred ²⁷⁶ with the appellant, in construing the instrument of writing on which the action was founded, to be for the term of ten years, determinable within the term, at the will of the appellant, upon his giving notice to the appellee, on or before the month of June, otherwise the term would continue for another year, And considering the property to lie in Maryland, the court say: “the agreement not being acknowledged and recorded, agreeably to the registration laws of the State, it passed at law no title whatever in the demised premises to the appellant, and consequently the covenant for the payment of rent which is dependent on the appellant’s title, or interest in the demised premises created by the agreement, is wholly inoperative and void; and no such action of covenant can be maintained thereon, whether regarded as a lease or a covenant for a lease» If the appellant has, under color of this agreement, occupied the property intended to be demised, the appellee’s remedy for the rent is not in covenant; but if the occupation be without his assent, it is trespass quare clausum fregit; if with consent, an action for use and occupation, or an assumpsit upon an agreement, from year to year of similar import with that ineffectually executed, and which the law implies as existing between the parties.” See also Peter vs. Schley, 3 H. & J., 216 .

Mayhew vs. Hardesty, 8 Md. Rep., 495 . Whether the deed to the trustees, for the use and benefit of Mrs. Catón, is to be regarded as having reference to the second clause of her father’s will, or to the first and third clauses; and consequently, whether she had a life estate with a power to lease, or had the “right of absolute disposition” of the property, in our'opinion the appellee is not entitled to the relief he seeks. We think the alleged contract was an inchoate instrument, which never passed any interest or title, legal or equitable to Carpenter. It was manifestly prepared for the purpose of being executed by both parties.

Mrs. Catón, alone, signed it, leaving the day of the month blank; the presumption from which may justly arise, that the blank was to be filled up when the paper should be executed by Carpenter. There is no proof, whatever, that he ever called for the purpose of sign ²⁷⁷ ing the paper, or that he made the slightest effort to sign it. There is an entire absence of any evidence, that the instrument was, during Mrs. Caton’s life, ever delivered to Carpenter or to any one for him; or that she did any act justifying even an inference, that she intended it-should be delivered, or considered as a binding contract, (unless her simple signature can be construed as evidence of such an intention,) whilst the paper was still remaining in her own possession. And we do not suppose that such an effect can be ascribed to the mere signature.

The proof does not show, satisfactorily, that the instrument ever left the possession of Mrs. Catón during her life. Admitting it was received by Mr. Pennington from J. H. Stimpson, it does not appear when it was so received, or when Stimpson became possessed of it. The parties admit, that Stimpson was authorised by Mrs. Catón, by her power of attorney, to make and enter into agreements for leases of her property, subject to her ratification. If, therefore, it should be supposed, that after Mrs. Catón had signed the contract it went into the hands of Stimpson during her life, the reasonable presumption is, he had it as her agent, for the purpose of its being signed by Carpenter, and not for the purpose of making it a valid contract without his signature.

The appellee relies upon his possession of the property as a circumstance in support of his alleged contract with Mrs. Catón. On this point his witness, Mr. Barroll, says, “Mr. Carpenter, the complainant, took possession under the contract, and still continues in possession.” This, no doubt, was according to Mr. Barroll’s understanding of the matter. But it will be seen from the admission of the parties, and the papers filed in the cause, that the appellee took possession on the 21st of May J.846, in pursuance of an order from J. H. Stimpson; whilst the contract signed by Mrs. Catón, is dated -- July 1846. The admission alluded to is: “It is further admitted, that the order herewith filed (marked ‘A.,’) directing the surrender of the property in question to William II.

Carpenter, was signed by said Stimpson, and delivered to said William IT. Carpenter at the date thereof, who received immediate possession in pursuance of it.” ²⁷⁸ The following is the order “A.,” referred to: “Messrs. Herbert and Smith, will please surrender the part of lot No. 116, containing 90|- acres, to Mr. W. H. Carpenter, to whom it has been leased for 99 years, and oblige yours, May 21st 1846. » Mart Catón. Per, James H. Stimpson.” This order itself, is not a lease for ninety-nine years, nor is it an agreement for a lease for that term, such as a court of equity would enforce against the appellants by a decree for specific performance.

If for no other reason, it is defective in not showing what rent was to be paid. Nevertheless the admission is, that in pursuance of it, Carpenter took possession immediately after its date. And surely the possession so taken in May, cannot, with propriety, be regarded as showing that his subsequent holding was under the contract of July, with the authority of Mrs. Catón, or as evidence that she intended that contract should be binding between the parties, without Carpenter’s signature, when the form of the instrument showed it was prepared for both to sign, and in the absence of proof of its delivery, or of any intention to deliver it, in its inchoate state; and when by its terms the rent was not to commence until the 1st of January following; before which time she died. It is also proper here to remark, the language of the instrument cannot be considered as indicating a design that the tenancy, supposed to be created by it, should begin at an earlier date than when the rent was to commence.

The record contains an admission, “that sometime after the death of Mrs. Mary Catón, certain of the property which descended to her daughters as tenants in common, was assessed and described and divided, in and upon certain schedules and plats filed in the court of chancery, in a cause wherein the Marchioness of Wellesly and others, were complainants, and Emily McTavish and others, were defendants, and that certain portions of said property, were by a decree of said court passed at June term 1851, in said cause, vested in John E. Howard, as trustee of said Lady Stafford, one of the daughters of said Mary Catón, and that among the property so described, the property now in question is described in schedule ²⁷⁹ 13. B., as ‘in the tenancy of said William H. Carpenter, for the term of ninety-nine years, at an average rent of two hundred and nineteen dollars and eighty-three cents, yearly, and payable in the months of January and July.’ And it is also admitted, that said property so described, is a portion of that which was allotted to John E. Howard, as trustee aforesaid, by the aforesaid decree, and that said Lady Stafford was a party to said proceedings.” In view of these admissions, it is contended, that Lady Stafford, is estopped from denying that Carpenter is lessee under the agreement in question, he being described as such in the proceedings under which she claims. But those proceedings only assigned to her, in severalty, by partition, property previously held by her in common with others, under a title not derived through the