McGaw v. Gortner

Page, J., delivered the opinion of the Court. The appellants in their bill of complaint charge that one William G. Gortner, being seized of certain lands in the State of West Virginia, contracted and agreed with them as follows: Baltimore, Dec. 24, 1894. “In consideration of One Dollar and other valuable consideration the receipt of which we hereby acknowledge; we, William J. Gortner, husband, and Mary A. Gortner, wife, agree to sell and deed to Geo. K. McGaw, Chas. T. Davis and J. B. Ramsay, one-half interest in all lands in Nicholas Co., West Viriginia, now standing in the name of, or belonging to William }.

Gortner and Mary A. Gortner aforesaid, for the sum of $6,250, and the said George K. McGaw, Chas. T. Davis and J. B. Ramsay, agrees to buy the same and pay the sum aforesaid for the one-half interest within six months from date hereof, provided after a personal inspection of said land within' the six months, they the said Geo. K. McGaw, Chas. ⁴⁹¹ T. Davis and J. B. Ramsay is satisfied with the value thereof, or in other words we, William J. Gortner, and Mary A. Gortner, his wife, agree to give Geo. K. McGaw, Chas.

T. Davis and J. B. Ramsay, an option for six months on one-half interest in our holdings of lands in Nicholas Co., West Virginia, for the sum of $6,250. It being further agreed however that should the said Geo. K. McGaw, Chas. T. Davis and J. B. Ramsay, elect to purchase under this option it is hereby understood that the lands aforesaid are to hold and develop if possible for the equal and just account of all in such manner and at such times as may be agreed by us all and to our mutual advantage.

Selins Grove, Dec. 24th, 1894. W. J. Gortner, M. A. Gortner.” That a part of the “further consideration” for said agreement was that the complainants should pay the taxes due at the time on the lands, the same to be refunded if the complainants failed to purchase, and that they did in consequence pay the same, amounting to $190.96. They further allege that within the six months they did examine the lands and elected to purchase and so notified the widow and heirs at law of W. J. Gortner, who had died in the meantime, but they refused and still refuse to receive the purchase-money tendered them and convey the land to them. W. J. Gortner died in January, 1895, leaving no personal estate in the State of Maryland, but seized and possessed of a tract of land situate in Prince George’s County.

The claim of the complainants as set out in the bill is, that they have a right to subject the real estate in Maryland to the payment of whatever may be due them for the non-performance of their contract, which they charge to be $ 12,000, and pray they may have such relief and all “such other as the nature of their case require. ’ ’ They also pray for an order of publication against the appellees as non-residents directing them to appear. On the expiration of the time mentioned in the order the appelles appeared and answered, denying some of the averments of the bill and that the complainants are entitled to the relief for which they pray. The lower Court on final hearing dismissed the bill and from its decree this appeal was taken. ⁴⁹² The main question in the appeal is, had the lower Court jurisdiction over the case made by the bill. The contract between the parties is not one of sale and purchase, but simply of an option for a limited period.

The parties themselves so understood the agreement for they so declare in the instrument itself — “in other words we Gortner and wife agree to give McGaw et al. an option for six months.” Without these words the contract can only be construed as an option. It bound Gortner to accept the price and convey the land, in the event that McGaw within the six months should elect. Until such election was made, there was no such obligation upon the Gortners, and if the six months expired without such election having been made, there was an end of the matter and the contract would not be binding on any of the parties. During' the six months within which the election could be made the Gortners were bound to keep the property unsold, they having agreed for a valuable consideration to maintain their control over it so that they could convey if the appellants elected to purchase and paid or tendered the purchase-money.

These principles are fully supported by the authorities and by the decisions of our own Court in Coleman v. Applegarth, 68 Md. 21 ; Thistle Mills v. Bone, 92 Md. 47 ; Maughlin v. Perry, 35 Md. 352 . The cases to which we have been referred by the appellees are not in point; they are not those in which a valuable consideration was paid by the other party for the offer. It seems to be clear therefore that Gortner, having died before any election was made, was not at the time of his death, nor ever was, under any legal obligation to receive the purchase-money and convey the property, and therefore there cannot be any claim against him, individually, for a breach of the contract. And if this be correct, this case cannot be brought within the operation of the 188th section of Art. 16, Code, Supplement.

The words of that section are as follows: ‘1 Where any person dies, or shall have died leaving any real estate in possession, remainder or reversion and not leaving personal estate sufficient to pay his debts, and costs of admin ⁴⁹³ istration, the Court 'on any suit-instituted' by any of his creditors, may decree that all the real estate of such person, or so much thereof as