Leatherman v. Long

Barnes, J., delivered the opinion of the Court. This appeal is from a decree of the Circuit Court for Frederick County, in Equity, dated November 10, 1971, in which the chancellor (Clapp, J.) found that (1) a deed, dated March 17, 1947, purporting to convey the Levi Leatherman farm in Frederick County to the appellant, John Daniel Leatherman (John Daniel), by his mother and father, Norma Leatherman (Norma) and Orestes F. Leatherman (Orestes) (who owned the farm as tenants by the entireties), was not in fact executed by Orestes; (2) John Daniel had not established title to the farm by adverse possession; and, (3) John Daniel had not established a constructive trust on the farm devised by Orestes to Mary K. Long, the appellee, nor any agreement by Orestes to convey the farm to John Daniel. 1 For reasons later set out in this opinion, we have concluded that the case will be remanded to the lower court without affirmance or reversal, pursuant to Maryland Rule 871 a, for further proceedings. The bill of complaint was filed by Mary K. Long, the appellee, on August 8, 1968. She alleged, in substance, that she was the devisee of the Levi Leatherman farm, containing 15614 acres of land in District No. 20 of Frederick County, under the will of Orestes; that John Daniel and his wife claimed the farm under a deed dated March 17, 1947, and recorded among the Land Records of Frederick County on January 30, 1968, purportedly conveying the farm to John Daniel; and that the deed was void because of the lack of an acknowledgement required by Maryland law and the signatures of the grantors were forged.

She prayed that the deed be declared “fraudulent, null and void” and for other relief. After the defendants had answered, denying the allegations of the bill of complaint for the most part, they moved for a separate trial under Rule 501 a of the claim ⁶⁵⁶ of forgery. This motion, which had the consent of the plaintiff, was granted by the chancellor. The trial of this single issue was set for December 17,1970.

Shortly before this trial date, the defendants terminated the services of their attorneys and on the day of trial verbally requested the chancellor for a continuance because of the lack of counsel or witnesses. This request was refused by the lower court and the hearing went forward with the defendants trying their own case. The plaintiff presented testimony, both expert and lay, which tended to prove that the signature of Orestes on the deed was signed by someone other than Orestes and, further, that all four signatures, i.e., those of Orestes, his wife, Norma E. Leatherman (Norma), and of the two witnesses, (Rev.) Clarence G. Leatherman and Elfie I. Leatherman, were all written by the same person. The defendants attempted to cross-examine the plaintiff’s witnesses and proffered that their expert witnesses would testify that the signature of Orestes on the deed was genuine.

At the conclusion of the testimony, the defendants again moved for a continuance and, finally, upon their agreement to pay the expenses of the expert witnesses of the plaintiff to appear at a second hearing, the chancellor scheduled a second hearing on December 30, 1970, /to permit the defendants to present the testimony of their expert witnesses. The defendants employed new counsel, who on December 28, 1970, moved, on behalf of the defendants, for a continuance of the hearing set for December 30 on the ground that no transcript of the prior testimony in the case could be obtained until January 25, 1971, and also because Aaron Zeligman, the expert witness of the defendants, had suffered a heart attack and could not appear on December 30. The chancellor verbally denied this motion. On December 30, 1970, new counsel appeared for the defendants and moved for a mistrial and for a continuance.

When the lower court denied this motion, they did not present any evidence, after which the chancellor rendered an oral opinion finding that the purported sig ⁶⁵⁷ nature of Orestes on the deed was not his signature and, therefore, the deed was ineffective to transfer the Levi Leatherman farm to John Daniel. On January 29, 1971, the deposition of Aaron Zeligman was taken. He testified that the signature of Orestes on the deed was made by the same person who signed the known signature of Orestes as endorsements on two checks made payable to his order and which cleared the banks. The transcript of this deposition was made a part of the record in this case, although it was not introduced into evidence.

The plaintiff, on July 6, 1971, filed a petition praying for a decree in her favor and the chancellor signed a show cause order stating that the defendants had until July 29, 1971, to show cause why a decree should not be entered against them. Within the time allowed, the defendants answered alleging that other issues, including adverse possession and equitable title in the defendants to the farm, remained to be tried. A hearing date of September 10, 1971, was scheduled by the chancellor and a trial before him began on that date. At the hearing, John Daniel testified that he was then 66 years of age, and resided at New Oxford, Pennsylvania.

He first lived on the Springfield farm (adjoining the Levi Leatherman farm) with his parents, Orestes and Norma, in 1909. He was their only child. His father was a farmer and he assisted his father with the farming operations. He attended the University of Maryland and graduated in 1928 with a B.S. degree in agriculture.

After graduation, he returned home and helped at both the Springfield farm and the Levi Leatherman farm, which latter farm had been acquired in August 1928. He continued to help on the two farms until 1929 when he began his teaching career, teaching vocational agriculture for 14 years. Thereafter, he went with the Farm Security Administration (FSA), later becoming State Director of FSA for Maryland and Delaware. He quit this employment in April 1947 because his mother, Norma, “demanded that I come home and operate the farms.” His ⁶⁵⁸ father, Orestes, was present when Norma demanded that he come home and when she stated that the Levi Leather-man farm “would definitely be mine.” John Daniel did give up his position, returned home and resided on “the Levi Leatherman farm; my farm.” He never paid any rent to anyone for occupation of that farm and from 1947 until his father’s death on June 22, 1967, paid all of the taxes on that farm.

The tax bills came in the name of his father and he gave his father the money to pay them. Various cancelled checks were exhibited and were identified by John Daniel as checks given by him to pay the taxes on the Levi Leatherman farm. While on the Levi Leatherman farm after April 1947, he spent at least $20,000 for repairs and permanent improvements on that farm as disclosed by various records. Some additional records had been lost.

The Levi Leatherman farm, according to other witnesses, had been purchased by Norma from money she had inherited for John Daniel, she wanting “him to come home and fix it.” It was titled in the name of Norma and Orestes, as tenants by the entireties. On March 17, 1947 — John Daniel’s birthday — Orestes, Norma, John Daniel and the Reverend Clarence G. Leatherman and his wife, Elfie, were at the home of Clarence Leatherman in Hummelstown, Pennsylvania. At that time his mother, Norma, delivered to him a deed dated March 17, 1947, on which the names of Orestes and Norma appear as grantors. The names of Clarence Leatherman and his wife, Elfie, appear as witnesses.

Orestes was present when the deed was delivered by Norma to John Daniel but did not say anything. The deed of March 17, 1947, recites a consideration of “the sum of TEN DOLLARS and other valuable considerations, the receipt whereof is hereby acknowledged.” The farm conveyed by the deed is described as containing 15614 acres, located in District No. 20 in Frederick County “and more fully described in the deed of Rev. Clarence G. Leatherman and Elfie I. Leatherman, his wife, dated the twenty-eight day of April, A.D. 1928, ⁶⁵⁹ and recorded among the Land Records of Frederick County in Libre No. 368, Folio 439 &c.; and being the same land which was conveyed to the said Orestes F. Leatherman and Norma E. Leatherman, his wife, by the said deed.” The conveyance to John Daniel is in fee simple and the deed contains the usual covenants of special warranty and further assurances. Signatures of Orestes and Norma appear to be added and “(SEAL)” appears after each signature. As already indicated, the signatures of Clarence G. Leatherman and Elfie I. Leatherman, with the address “Hummelstown, Dauphin County, Pennsylvania” appear under the designation: “Test:.” There was no acknowledgement appearing on the deed.

Norma died in 1950. In 1961, the State Roads Commission of Maryland instituted a “quick-take” eminent domain proceeding against Orestes to acquire a portion of the Levi Leather-man farm for the widening of U.S. Route No. 15. The negotiations for the price to be paid for the taking took place at the home of Orestes on the neighboring farm and John Daniel was present during the negotiations. Finally, an option was obtained for the purchase of the land taken in the name of Orestes as owner and John Daniel as tenant.

When Richard L. Schindel, the right-of-way agent for the State Roads Commission who negotiated the option for the Commission, was called as a witness for the plaintiff and was asked by the chancellor why he listed John Daniel as a tenant, he stated: “He at that time, sir, was on the property and that is why we listed him as the tenant.” His records did not indicate when he learned that he “had to negotiate with John D. Leatherman.” The check from the Commission was made payable to Orestes and he did not know if John Daniel consented “to letting his father get all his money.” Also in 1961, John Daniel discontinued active farming on the Levi Leatherman farm. He had a complete sale of his farm equipment. Thereafter, he rented the farm for cash and collected the rent, but paid over no part of the rent to his father, Orestes. ⁶⁶⁰ In March 1963, John Daniel received a letter from his father, Orestes, dated March 11, 1963. This letter, which we consider to be perhaps the most important piece of evidence in the case, is not mentioned in the opinion of the chancellor, as we will consider more fully later in this opinion.

The letter is as follows: “Thurmont, Maryland March 11, 1963 Monday “Dear John Daniel, “I have been having some more pain with my leg and it is still red but it is not gathering. If it gets worse I will let you know. “It is so bad that you folks have to defend yourselves and spend all that money. “I am thankful they cannot attach your farm in that court action. While I am on the matter there are some things that we ought to discuss about the farm. It was your mother’s intent