McNamara v. Feihe

Urner, J., delivered the opinion of the Court. The bill of complaint in this case was filed by Patrick J. Me X amara and his two daughters, Mary M anion and Catherine Gibson, and the purpose of the proceeding is to protect their alleged right of possession of a. dwelling honse in Baltimore, under an unrecorded declaration of trust, as against purchasers of the property who acquired it from the owner of the record title. A preliminary injunction was issued, as prayed in the bill, restraining the purchasers, Charles E. Feihe and Anna V. Feihe, his wife, from further prosecuting certain suits at law which they had instituted to secure possession of the property. The appeal is from an order dissolving the injunction after a hearing on a. motion filed for that purpose.

It is alleged in the bill that on October 20th, 1913, the property referred to was purchased by Bernard J. McNamara, son of the plaintiff, Patrick J. McNamara, with money advanced by the latter, and that the title was taken in the son’s name with the understanding, expressed in a. written agreement, that the property was intended for the use of his father aud mother and their children, and that he should not sell it without his parents’ consent. In accordance with that agreement, the bill avers, the plaintiffs entered into possession of the property and have occupied it continuously to the present time, but it is charged that, contrary to the terms of the agreement, the property was sold and conveyed ⁵¹⁸ by Bernard J. McNamara to the persons already mentioned, who are seeking to obtain possession of it by the actions which are sought to be restrained. Associated with the purchasers and Bernard J. McNamara, as a defendant, is a mortgagee to whom the former conveyed the property as security for a loan of the purchase money. The answers of the defendants denied under oath the material allegations of the bill of complaint.

The purchasers asserted in their answers that they became the lawful owners of the property without actual or constructive notice of the plaintiff’s alleged interest, and Bernard J". McNamara specially denied in his answer the agreement on which the plaintiffs rely. It appears from the testimony that Bernard J. McNamara, who is a Catholic priest, did not himself live in the house now in litigation, but regularly paid the taxes, ground rent and mortgage interest chargeable against the property, except in 1918, while he was serving overseas as a chaplain in the American army. Being unable to continue the payment of these charges, he offered to sell the property to his father, who declined the offer, and it was then sold to Mr. and Mrs. Feihe.

It was testified by Mr. William J. Kelly, who represented the purchasers, that he called to see Patrick J. McNamara and told him of his son’s desire to sell' the property and to give him the first opportunity to buy it, and that in reply the father said, “under no circumstances would he buy, he had his money well invested and property was too high, and under no conditions would he buy, and if Father McNamara sold the property, he would be sorry.” He made no claim, by virtue of the agreement now relied on or otherwise, of the right on the part of himself and daughters, his wife being then deceased, to continue their occupancy. In regard to that interview, Patrick J. McNamara testified: “He told me my son was going to sell the property. 1 said I do not see how he could sell it, but, however, I said there is something ⁵¹⁹ peculiar happens once in a while. Well, he says, will you buy it ? I said, if it is not bought onca for mo I cannot, buy it again, and then he said it is in debt and your son is not able to pay.

I said, as far as my son’s debts are concerned they are none of my contracts, although I am willing to pay for them.” In response to tho statement, after his own refusal to buy, that tin; property would be immediately sold to another person, he said, according to his testimony: “I think that would be foolish, hut I cannot help, it, if you people want to go on in