Kreps v. Kreps

Pearce, J., delivered the opinion of the Court. On November 20th, 1867, MaryS. White conveyed to Ellen E. Kreps, wife of Michael H. Kreps, in consideration of $291, five lots of land in Williamsport, Md.; and on January 8th, 1868, Isaac Gruber and others conveyed to her four other lots in the same town, in consideration of $120. On August 23 rd, 1895, Michael H. and Ellen E. Kreps conveyed these nine lots to their son Michael H. Kreps, Jr., by a deed containing the following recital: “ Whereas by the face of said deeds (being the two deeds above mentioned) it is stated that Ellen E. Kreps, wife of Michael H. Kreps, Sr., paid the purchase-money for said real estate, such was not the real facts; it was Michael PI.

Kreps, Sr., who furnished the money to pay for the real estate, and whereas it is mutually agreed between the said Ellen E. Kreps and Michael H. Kreps, Sr., that they will make a deed conveying to Michael PI. Kreps, Jr., said property as hereafter more fully described. Now, therefore, in consideration of the premises, and the further consideration of the sum of one dollar in hand paid, the said Pillen E. Kreps and Michael H. Kreps, Sr., her husband, doth grant unto Michael H. Kreps, Jr., the following lots of ground” — describing them. It may be observed here that in fact, neither of the two deeds first mentioned expressly states by whom the consideration was paid; but merely state it was paid.

The son entered into possession of the property so conveyed, and now holds it. The mother owned the house ⁶⁹⁴ and lot where she resided .when this deed was executed, and still owns it. Her husband died in February or March, 1898, and on June 1st, 1898, she filed the bill in this case, alleging that on October 26th, 1895, she agreed with Michael H. Kreps, Jr., that she would convey to him said lots upon the trust that he would at once secure her a loan thereon for an amount not stated, and would thereupon convey said lots to herself and husband so that they should belong to them during their joint lives, and upon the death of either, to the survivor; and that her son agreed to accept the trust, and the deed was made the same day; that the recital in said conveyance, as to the payment of the purchase-money of these lots by her husband, was untrue, and was fraudulently inserted without her knowledge or consent, and that her son, though often requested, refused to carry out the alleged agreement in any respect. The prayer of the bill is for a conveyance to her, her husband having died, and for such other relief as her. case should require.

The certified copy of the deed to the son, filed with the bill, shows that it was executed and acknowledged August 23rd, 1895, moré than two months before the date of the agreement and conveyance as alleged in the bill, and there is nothing in the testimony to explain this discrepancy, but we shall presume this to be due to inadvertence, and without significance. The son answered denying all the allegations of fraud or imposition, as well as of the creation or acceptance of the trust set up, and relying upon the absolute title purporting to be conveyed by the deed, which he declared was freely executed by his mother with full knowledge of its contents. The Circuit Court found that the plaintiff had not sustained her case for a conveyance, and to this we fully agree. The scrivener who prepared the deed, having sworn that he told her he should embody in it the statement as to the payment by her husband of the purchasehnoney of these lots, and that after preparing the deed he read it to her twice, and that she signed it understandingly, the Court ⁶⁹⁵ held she was bound by this recital, and her testimony that she had paid the purchase-money herself, could not avail against this recital which operates as an estoppel and binds, parties and privies. “The reason of the rule is that the recital amounts to the confession of the party, and that confession is evidence against himself and those who stand in his place.” Carver v. Jackson, 4 Peters, 87 .

But apart from the effect of this recital, we think the plaintiff failed to. sustain her case. As between the parties, no consideration is essential to a deed. Cunningham v. Dwyer, 23 Md. 231 . And unless obtained by fraud or imposition, it cannot beset aside by a party, for want of consideration.

Mrs. Kreps’ own testimony does not make good the allegations of her. bill. When asked if her son came to her about the deed, or whether he made her any promises about the lots, she testifies, “he did not come to me about the deed” — “He did not make any promises. It was the old man, and Dugan (the magistrate).” Nowhere does she testify that the son agreed to accept the deed upon any trust, or that there was any agreement or conference between them relating to the making or acceptance of this deed. The magistrate who prepared it, and took the acknowledgment, testifies that the father asked him to write the deed, and he refused unless he could see him and his wife together, and talk the thing over, and that he then went up where Mrs. Kreps lived, and found them both there; that the father said in her presence that they had agreed to divide the property.

He said “We are going to deed the sand lots to my son Michael — that there was a bill on part of the property which Michael would pay; that he had himself paid the purchase-money for the sand lots and also for the house, except Isaac Gruber’s billand that he, Dugan, told Mrs. Kreps he should put that in the preface of the deed ; that after preparing the deed, he read it to her twice, and she said “that was all right, that they were dividing the property — she was to have the house where they were living, and he was to have the sand lots,” and that she, then, ⁶⁹⁶ sighed and ’ acknowledged the