Koogle v. Cline

Thomas, J., delivered the opinion of the Court. The questions presented by this appeal can best be understood by reference to the bill of complaint and answer in the case. The bill, which was filed hy two of the administrators of Jacob Shank, deceased, alleges that Jacob Shank, of Eredericy County, died intestate on or about the 21th of July, 1906, and that Isaiah Cline and J. Clarence Lane, with Otho J. Shank, one of the defendants, were duly appointed adminis ⁵⁸⁹ trators of the personal estate of the deceased. That in his lifetime the said Jacob Shank granted and conveyed by deed, dated May 4th, 1905, a certified copy of which was filed with the bill, three pieces or parcels of land, to wit, a farm of about one hundred and fifty-seven and one-half acres; a mountain lot of sixty-eight acres, and a small strip of land, intended as an outlet to the farm, of about one-fifth of an acre of land, all located in Frederick County, to five of his children, viz, Otho J. Shank, Lauretta A. S. Elook, Susan K. Haupt, Emma A. C. Koogle and Fannie C. M. Keller,' “for and in consideration of the sum of $8,000,” subject to an estate for life in the grantor.

That since the execution of said deed the said Lauretta S. Flook died intestate, leaving a husband and the following children: Emory Oscar Elook, Mamie C. Elook, Bessie Elook, John J. Elook, Martin L. Elook, Jr., and Otho E. Elook, all of whom resided in Frederick County and were adults, except Martin L. Flook, Jr., and Otho E. Elook. That Otho J. Shank, being one of* the grantees in said deed, and therefore “a necessary party defendant in his own right in any proceeding to enforce a vendor’s lien against said lands, leave of Court was obtained to make him also defendant in his capacity as administrator, so that he might not occupy the anomalous -position of appearing on both sides of the docket and thereby of suing himself.” That, although the said deed recites that the consideration of $8,000.00 has been paid, “yet in fact and truth the same has not been paid, but the whole sum of $8,000.00. with interest thereon from the date of the deed, remains due the estate of the deceased,” which debt it is the duty of «the plaintiffs to collect for the benefit of his estate. That the plaintiffs are entitled to the benefit of an equitable lien on the lands conveyed by the deed for the unpaid purchase money, to wit, the sum of $8,000.00, with interest thereon from the date of'the deed. That the title to the lands is still in the grantees and their heirs at law, except that the surviving grantees,' together with the heirs at law of Lauretta A. S. Elook, deceased, as tenants in common and disregarding the rights of the plaintiffs, filed a bill of com ⁵⁹⁰ plaint for a decree for the sale of said land for the purpose of partition among themselves, and obtained a decree therefor.

That besides the grantees in said deed, the deceased left one other child, Manzella Cline, wife of/Isaiah Cline, one of the administrators and plaintiffs in this case, and two grandchildren, viz., Alvey J. Horine and Minnie E. Brinham, wife of Robert E. L. Brinham. All of the surviving grantees in the deed, with their wives and husbands, the heirs at law of the deceased grantee, and Otho J. Shank, administrator, etc., were made defendants, and the prayer of the bill was for a decree to sell the property for the purpose of paying the $8,000.00 and interest and costs. The deed referred to conveyed the property to the grantees in fee, reserving a life estate for the grantor, and is in part as follows: “This deed, made this 4th day of May, in the year nineteen hundred and five, by me, Jacob Shank, of Frederick County, in the State of Maryland, Witnesseth: That for and in consideration of the sum of eight thousand dollars ($8,000.00), to me cash in hand, paid by Otho J. Shank, Lauretta A. S. Flook, wife of Martin L. Flook; Susan F. Haupt, wife of Josiak Haupt; Emma A. Koogle, wife of Lloyd M. Koogle, and Fannie C. M. Keller, wife of Edgar B. Keller, all of Frederick County, Maryland, at and before the delivery of these present, the receipt of which is hereby acknowledged, I, the said Jacob Shank, do hereby grant and convey unto the said 'Otho J. Shank, Lauretta A. S. Flook, Susan F. Haupt, Emma A. Koogle and Fannie C. M. Keller, subject to the reservation of a life estate hereinafter set forth, all the following described pieces or parcels of land, situated in Frederick County, in the Sta.te of Maryland, being, etc.” The two infant defendants answered by guardian ad litem; Josiah Haupt, husband of one of the grantees, answered, neither admitting nor denying, etc.; a decree pro confesso was passed against Otho J. Shank and wife and Otho J. Shank, administrator, etc., and the remaining defendants in their answer, after admitting the death of Jacob Shank, the ap ⁵⁹¹ pointment of the administrators, the execution of the deed, etc., further say that they “admit that the deed in question recites the payment of a consideration of $8,000.00, as therein mentioned, hut they deny that said recital of consideration represents any contractual dr other liability for the payment of such sum of money, or any part thereof, by the said grantees to the said grantor, and while'thev admit that the amount so recited in said deed was not paid, yet they deny that said recited consideration was or is a debt due the said Jacob Shank or the estate of said decedent, and they aver that no contract, agreement or understanding was ever entered into by the said grantees with the said grantor for the payment by the former- to the latter of the said sum of $8,000.00, or any part thereof, and they further aver that said sum of money was not at any time by any of the parties to said deed agreed, proposed or intended to be paid or collected;” that they deny that the plaintiffs are entitled to the benefit of an equitable lien on the lands conveyed by said deed for the unpaid purchase money named therein; that by an order of said Court, passed after the filing of the bill in this case, the trustees appointed in the case instituted for the sale of said property for the purpose of partition were authorized to proceed with the sale and to hold the proceeds of sale to abide the determination of this case, and that in answer to the eleventh paragraph of the bill they admit that “besides the children named as -grantees in the deed in question, the said ■Jacob Shank had one other child and the two grandchildren mentioned in said paragraph, but they deny that they or any of the plaintiffs are entitled to the enforcement of an equitable or other lien against the real estate conveyed by said deed, and they deny that any such equitable or other lien exists, or that any purchase money or interest thereon is due and owing from these respondents or any of them for or on account of said real estate.” A great deal of testimony was taken in support of the respective contentions of the plaintiffs and defendants, nearly ⁵⁹² all of which was excepted to and a large part of which has little or no bearing’ on the issues involved. That part of the evidence to which, as we shall show later on, there is no serious obj ection, clearly shows that when the deed in question was executed and delivered it was not intended to create any obligation whatever on the part of the grantees to the grantor, but on the contrary it was distinctly understood by the grantor and grantees that it was intended to evidence a gift from the father to his children therein mentioned.

Emory L. Coblentz, Esq., who prepared the deed, testified in substance that the deceased grantor, Jacob Shank, came to see him at his office in Frederick on the 4th of May, 1905, and told him that he wanted to give the property mentioned in the deed to his five children, the grantees named therein, and to convey it to them by deed, reserving a life estate for himself, and asked if it could be done. That he stated that he had already given to his daughter, Mrs. Cline, about an equal 'amount in a property he had conveyed to her, and that he had already given or would provide for his granddaughter, and that by giving the property mentioned in the deed to the five childr’en named therein he would not “quite equalize them with Mrs. Cline;” that the reason he desired to make the deed in lieu of a similar disposition of the property by a will previously executed by him was that his brother’s, Peter Shank’s, “will had been caveated and he did not want anything of the kind to occur relative to his estate, and that he would make a deed for the property and put it upon record so the whole world could see just what he had done.” That witness went into his front office to prepare the deed, and when he came to state the consideration and “was about to insert a consideration of $5.00 and other valuable considerations,” he asked the deceased if there was any particular consideration he desired stated in the deed, and he said he wanted it stated a& $8,000.00; that he wanted to give the grantees the property, but Wanted the $8,000.00 stated as the consideration, so as to-show the amount of the gift; but that it was intended as a gift ⁵⁹³ and was not to be paid, and to carry out that intention the consideration was stated to be $8,000.00, and the acknowledgment of its payment was written in the deed. That after the deed was prepared and executed by the deceased, he told witness that he wanted Otho J. Shank, his only son, to have the property after his death, provided he would then pay his four sisters named in the deed each $2,000.00, but that Otho was not willing to pay that much; but that he, however, wanted witness to prepare a paper for his four daughters mentioned in the deed to sign, agreeing to sell their interests to Otho J. Shank, upon his paying $2,000.00 to each of them, and that he, the deceased, would hold the paper, and asked the witness to take the paper out to Middletown the following Saturday afternoon, at which time he would have them call at witness’ place and sign it. That he also asked witness to take with him the deed and read it over to them.

That on the following Saturday all of the grantees in the deed came to witness’ home in Middletown, when, as requested by the grantor, he read the deed and paper over to them, and the daughters signed the paper, which he then gave to Edgar B. Keller to be delivered to Mr. Jacob Shank; that Edgar Keller then paid him the cost of preparing and recording the deed, and the witness, at the request of the grantor, had it recorded the following Monday. That when the deceased came to his office in Erederick to have the deed prepared he was accompanied by his son, Otho J. Shank, and that all of the conversations had with and statements made by the deceased were made in the presence of Otho J. Shank, with the exception of that part which occurred just after the witness had commenced to write the deed, and when he asked the deceased if he wanted any particular consideration named in the deed and he said $8,000.00. That when he went into his front office to prepare the deed he left the deceased and Otho J. Shank siting in his private office, and that he is not certain that Otho J. Shank was still there when he went back to his private office to ask the deceased if he wanted any particular consideration named in the deed, but ’that all other ⁵⁹⁴ statements made by the deceased, viz, that he wanted to deed the property to the five grantees as a gift to them, subject to his life estate, his reasons for doing so; that he wanted Otho J. Shank to have the property after his death, provided he paid $2,000.0 to each of his sisters named in the deed, and that he wanted the witness to prepare a paper to be signed by his four sisters, were made in the presence of Otho J. Shank. The testimony of Otho J. Shank, on cross-examination, when recalled by plaintiffs and examined as to a conversation had with the deceased when they were on their way to the office of Mr. Ooblentz to have the deed prepared, corroborates the testimony of Mr. Ooblentz, to the effect that the intention of the grantor was that the consideration named in the deed was not to he paid by the grantees, and that the deed was to operate as a gift by him to the grantees of the property or consideration named therein.

The learned Court below, in a very carefully prepared opinion, after stating that “The plaintiffs rely on the recital of the consideration of $8,000.00 in the deed, and that it was never paid. There is no doubt it was never paid, and, personally, I haven’t a particle of doubt it was never intended to be paid; that it was entirely foreign to old Mr. Shank’s intention that any of these grantees should pay a single penny of this money, but the difficulty arises when it is attempted to prove it,”' reluctantly reached the conclusion that, under the decisions in McElderry v. Shipley, 2 Md. 25 ; Thompson v. Corrie, 58 Md. 197 ; Christopher v. Christopher, 64 Md. 537 , and M’Crea v. Purmont et al., 16 Wendell, 460 , the evidence we have referred to was not admissible for the purpose of showing that the understanding of the grantor and grantees in the deed was that the consideration of $8,000.00 mentioned therein was not to be paid. In other words, the conclusion reached by the learned Court below and the proposition of the plaintiffs is, that even where it is conclusively shown that a father, with the avowed intention of giving certain property to his children, executed a deed to them in which, for the purpose of showing the .amount of the gift,' he inserted ' a ⁵⁹⁵ consideration with an acknowledgment of its payment, and that they accepted the deed as a gift, without any intention of thereby incurring an obligation to him, they are bound, on demand by his administrators and proof that it was not paid, to pay the amount so named in the deed as the consideration. If this were so, it would indeed be a reflection upon the administration of justice, and unless we are constrained by some settled rule of law or positive decision in this State we cannot yield our approval to such a proposition.

In the case of McElderry v. Shipley , the plaintiff attempted to show that a mortgage from Shipley to Lister, which professed to secure a debt of $1,200.00 from the former to the latter, was, by an agreement entered into at the time, intended to secure a debt due from the former to the plaintiff, and it was in reference to the evidence offered for that purpose that the Court said that the law was “well settled in Maryland that parol evidence is inadmissible in a case like the present to contradict, add to, or vary the terms of a written instrument.” In the case of Thompson v. Corrie , plaintiff alleged in her bill that the defendants had proposed to her to enter into an agreement that the plaintiff would suffer the defendants, her daughter and her husband, to reside in her house for such* time as would be mutually agreeable, without paying any money rent, and that in consideration therefor the plaintiff would board and lodge with them, the defendants in the meanwhile paying all the taxes and expenses on the property. That shortly afterwards the defendants requested her to sign a paper in the presence of a witness which they represented contained the agreement proposed and which they desired to have in writing. That she signed it without reading it or having it read to her, and that some time thereafter she discovered that the paper she had signed was an absolute deed for the property to her daughter. That “though the deed on its face sets forth a money consideration of one thousand dollars, the same is false.and fraudulent, and that she did not in fact receive any consideration of any kind therefor.” The prayers of the bill were that the deed be declared ⁵⁹⁶ void; that the appellees he decreed to reconvey the property to her, and to account for the use and occupation.

The answer of the appellees denied the fraud charged, alleging that the appellant executed the deed with full knowledge of its. contents, etc., and that the only consideration for the deed was that the appellant should have a home with the appellees, on the property, which they were willing to furnish. The Court held that the appellant had failed to establish the fraud alleged, and that it followed that there was no ground upon which to set aside the deed, and said r “But the same must stand, and the rights of the parties must be determined according to its terms. In the absence of fraud or mistake the parties are bound by the terms of the writing into which they have voluntarily entered. McElderry v. Shipley, 2 Md. 35 .

The question then arises whether the appellant is entitled to any equitable relief. The deed upon its face purports to have been made for the consideration of $1,000.00. Nothing is better settled than that it is not competent for the parties to prove another consideration, different in kind from that stated in the paper. Watkins v. Stockett, 6 H. & J. 435 ; Wesley v. Thomas, Ib. 24, 28; Cole v. Albers, 1 Gill, 423 .

It follows that the testimony for that purpose offered by the appellees, and which has been excepted to by the appellant, must be rejected. “The authorities clearly establish the proposition that, although the recital in the. deed states that the money consideration therein named has been paid, it is competent to show by parol proof that the same has not been paid. Woolen v. Hillen, 9 Gill, 185 ; Bratt v. Bratt, 21 Md. 578 . In this case the evidence clearly shows that no part of the consideration named in the deed has been paid to the appellant. She is-therefore entitled to recover the same with interest thereon, and to a vendor’s lien upon the property for the same, and the bill ought to be retained to enable her to assert this claim under the prayer for general relief.” In the case of Christopher v. Christopher , the Court said r “It is admitted by Philip that he did not, at the time of the- ⁵⁹⁷ execution of the deed for the lot on Muir street, thus conveyed by his mother to him, pay to the grantor the sum of two hundred dollars therein named as the consideration; and the appellee contends that the said sum is still due and owing to her, and was never secured by mortgage or any other evidence of indebtedness.

She, therefore, claims a vendor’s lien on this lot, and has filed her bill in equity to set aside both conveyances made by her son to his wife, on the ground that they were made with a covinous intent. These deeds have been annulled by a decree in the Court below, and an appeal from that decree has brought the matters in controversy into this Court for adjudication. The appellants contend that, although no-money was paid at the time when the deed for the lot on Muir street was executed and delivered by the mother. to the son, the claim of the grantor has been fully satisfied, as the consideration for the conveyance was a pre-existing debt due from the said grantor to the grantee. * * * It is admitted by Philip Christopher that no money was at any time paid by him to the appellee for the property» conveyed, hut he alleges, and by his own testimony endeavors to prove, that there was an agreement between him and his mother that the deed should he given in consideration of ‘moneys advanced and services rendered and necessaries furnished’ by him to her. He does not prove how much money was advanced, nor what was the value of the services rendered, nor of the necessaries furnished.

This is left to conjecture; and he is contradicted in these particulars by the appellee, whose testimony is corroborated by that of another witness cognizant of the facts, and who swears that Philip was to pay two hundred dollars in money for the lot on Muir street conveyed to him by his mother. The remaining testimony introduced hv the appellants relates to casual conversations had with the appellee some time subsequent to the execution of the deed, in which she spoke of having given the property to her son; two of the witnesses stating that she said he had been kind to her, and that she owed him more than the lot was worth. They do not state that she admitted that she owed him any ascer ⁵⁹⁸ tained sum of money, and these vague and unsatisfactory colloquies are obviously suggestive of doubts in relation to the actual nature of the debt alluded to in statements so ambiguous and obscure. Instead of a pecuniary indebtedness, she may have had reference to a debt of gratitude for filial kindness and attention.

It is clear that such proof is not admissible to contradict the recital in the deed.” It was under such circumstances that the Court said: “That when a sum of money is named as the consideration in the recital of a deed, it is not competent to adduce evidence tending to