Merryman v. Bremmer

Barnes, J., delivered the opinion of the Court. The important facts in what Judge Prettyman in his opinion in the lower court characterized as “this ancient and extended proceeding” began on November 30, 1934, when the Circuit Court for Worcester County, in equity, signed a decree appointing the appellant, Lewis C. Merryman, trustee to make a sale of the real estate of “Captain” William B. S. Powell who had died testate in Worcester County on October 8, 1933. Captain Powell’s personal estate was not sufficient to discharge all of his debts, and his creditors petitioned the Circuit Court for Worcester County to sell as much of the decedent’s real estate as might “be necessary * * * to pay the claims of * * * creditors of the deceased.” Captain Powell had provided in his will ³ dated August 21, 1933, and duly admitted to probate, for the creation of a trust of all of his real estate and designated his. daughter, M. Elizabeth Powell (Elizabeth), as trustee of this, trust. She was also named as executrix of Captain Powell’s will.

By the terms of the will the real estate was to be held for five years, with the income payable one-third to Mrs. Powell,, the decedent’s widow, 10% of the remaining two-thirds to another legatee and the residue to Elizabeth. When the real estate was sold (at the end of the five year period or sooner in the discretion of the trustee under the will), the corpus was to-be distributed in the same proportions and to the same persons, as designated for the payment of the income. After Merryman qualified as trustee to sell he arranged a large sale of Ocean City real estate owned by the decedent on August 22, 1936. Approximately 150 lots were sold on that day, E. T. Newell & Co., Inc. (Newell), a Baltimore auctioneering company, conducting the sale for the trustee, Merryman.

At this auction sale each purchaser of a lot executed in triplicate a written purchase contract in which the purchaser agreed to pay the amount bid according to the “terms announced at this sale,” waived “all homestead rights and exemptions” and agreed to pay a 10%. attorneys fee “in the event I am sued on this contract.” One-copy of the contract of sale was delivered to the purchaser, one-copy was delivered to Merryman as trustee and the remaining copy was retained by Newell. A master chart of all sales was; maintained by Newell and the original was delivered to Merry-man, as trustee, when the auction sales were concluded. The-terms of sale as decreed and as advertised required a purchaser to pay “one-third cash on the day of the sale and the balance in twelve months or all cash at the option of the purchaser.” On the day of the auction the appellee, Fred G. Bremmer,. sales manager for the Myerhoff Company, Baltimore real estate developer, was at Ocean City and was attracted by the ringing of the auctioneer’s bells. Unsolicited, he walked to the site of the auction and successfully bid on Lots 7 and 8, Block 87 North,, for $195, executed a purchase contract and gave a $100 check as a down payment.

Bremmer was living at that time at 6029' Gwynn Oak Avenue in Baltimore City with his wife Anne S. Bremmer. ⁴ Merryman, as trustee, filed on September 2, 1936, in the Circuit Court for Worcester County, his Twentieth Report of Sale in which he listed all of the sales made at the auction on August 22, 1936, including the two lots sold to Bremmer, The report of sale, however, reported the sale lots as follows: “Fred A. Tremerer of Baltimore, Maryland for the sum of $195.00.” (Emphasis supplied.) The usual order nisi was issued and published, and the Twentieth Report of Sale was finally ratified and confirmed by the Circuit Court on September 25, 1936. On September 21, 1936—approximately one month after the -auction sale—Merryman, having misconstrued the signature on the contract of sale, wrote the appellee under the name of “Tremerer” at the Gwynn Oak Avenue address to advise the purchaser that the sale would be finally ratified shortly and to re•quest the balance of $95.00 due on the sales contract. Having received neither a return of the letter nor an answer to it, Merryman again wrote “Fred G. Tremerer” on October 26, 1936, at the same address advising that the sale had been finally ratified and requesting advice “as to when and how you will make settlement.” Again the letter was not returned and -no answer was received. Merryman again wrote “Fred G. Tremerer’ at the same address on January 12, 1937, and again on May 3, 1937, requesting settlement.

The last letter had been sent by registered mail, with a return receipt requested. The return receipt returned to Merryman disclosed that the letter had been received by “Anne S. Bremmer,” wife of the appellee. Merryman then became aware of the correct spelling of the purchaser’s name and Merryman’s next letter was sent in the correct name at the Gwynn Oak Avenue address advising Bremmer that he was in default on the contract. Merryman testified that ~he received no return of this letter and no answer to it.

Thereafter Merryman sought the assistance of Newell to communicate with Bremmer and on August 6, 1937, Newell wrote Merryman that in accordance with this request Newell had called on “Fred G. Tremmer at the Gwynn Oak Avenue address” and had been “informed by him that he is going to make arrangements with you to take up the balance due upon the lots he purchased.” On August 17, 1937, Bremmer wrote Merry-man stating that Newell had communicated with him relative to ⁵ the lots purchased by Bremmer, requested “the figures in order to satisfy the balance due” and stated that he would “forward you my check in payment.” Merryman wrote back to Bremmer on August 21, 1937, advising that the amount due was $106.10, consisting of the balance of $95.00, interest of $5.70, taxes of 15$ per lot or 30$ for taxes and $5.25 for the deed and notary fee. Merryman wrote Bremmer on September 22, 1937, that he had written on August 21 in regard to the amount due on the lots purchased by Bremmer and that Bremmer “had promised to send me this amount at once and although a month has passed I have heard nothing from you. As I informed you before, I cannot keep this matter open indefinitely and unless I hear from you by Saturday * * * will proceed to have the lots resold at your expense. Please add 48 cents interest to the amount I gave you.” Having received no reply to the letter of September 22, Merryman wrote Bremmer on September 28, 1937, advising him that he was in default, that the balance due was $95 with interest of $6.37 to October 2, and unless the full amount was paid by October 2, 1937, “It will be my duty as trustee to resell at your expense the lots which you purchased and I will proceed immediately after that date to do so.

If you make settlement by that date, please include in the above amount 15$ per lot or 30$ for taxes and send check for $5.25 for deed and notary fee.” No reply was received by Merryman to this letter, although the return receipt revealed that “Mrs. F. G. Bremmer” had received the letter on September 29, 1937. Sometime between September 29, 1937, and 1938 or 1939, Bremmer moved from the Gwynn Oak Avenue address and finally Elizabeth, on July 2, 1940, wrote Merryman that Bremmer was now living at 3401 Lake Montebello Drive in Baltimore. Merryman wrote Bremmer at the new address but apparently received no reply. Between 1940 and 1959', Merryman testified, he attempted a number of times to locate Bremmer, but was unable to do this.

He testified that he checked for telephone listings in the Bremmer name when he was visiting his sister in Baltimore, and stated that the Bremmers were not listed from 1938 to 1949. This absence of listing is disputed by Bremmer. Merryman ⁶ was unable to locate Bremmer in the Baltimore City directory (although he was listed from 1949 through 1956) apparently because he looked at the Baltimore County directory owned by his sister rather than at the Baltimore City directory. Merry-man testified that he attempted to locate Bremmer at his work through his brother-in-law who worked for Myerhoff, but although he visited a number of job sites of the Myerhoff developments, he was unable to locate Bremmer.

In either 1958 or 1959 Elizabeth and representatives of beneficiaries of the Powell trust concluded that because of Bremmer’s non-payment they owed him no further obligation and they urged Merryman to conclude the matter. Merryman located a telephone listing for Bremmer in Cockeysville and thereafter went to the Bremmer home to discuss the matter with Bremmer and “find out what he was going to do.” There is a conflict in the testimony in regard to what happened at this meeting. Merryman indicated that although he did not show Bremmer his file, he was sure that he told Bremmer what was due and owing, but Bremmer did not indicate that he would pay the balance due. Bremmer, on the other hand, testified that Merryman asked him if he was able to consummate the deal, to which Bremmer replied “Yes, we can well afford it.

How much is it?” Merryman said he couldn’t tell but “would write us a letter and tell us about it,” but he never did write. Bremmer and his wife Anne had been divorced and Bremmer married his present wife, Margaret T. Bremmer, in 1945. The present Mrs. Bremmer was present at the meeting in 1958 or 1959 and confirmed her husband’s account of what happened at that meeting. On August 22, 1960, Merryman, as trustee, filed a petition to set aside the sale to Bremmer.

After receiving service of this petition and the show-cause order issued pursuant to it, Bremmer and his wife drove to Salisbury in late August or early September, 1960, to see Merryman. Here again the accounts of what happened differ. Merryman testified that Bremmer wished to settle the matter, arrange for a sale and a division of the net proceeds. Bremmer denied this and testified that Merryman refused to discuss the matter.

After the brief visit to Merryman, Bremmer went to Ocean City and was introduced to William ⁷ G. Kerbin, Jr., a member of the bar who, after discussion of the matter with Bremmer, called Merryman a few days later and told him that Bremmer “was willing and able to pay the balance if he knew how much it was.” He could not recall what Merry-man’s reply was. The Chancellor resolved the conflicts in the testimony in favor of Bremmer and it is apparent that we should not hold that his findings were clearly erroneous. Maryland Rule 885 a. Merryman admitted that as a lawyer he understood that Bremmer had equitable title to the two lots after the final ratification of the sale.

Bremmer testified that he had no recollection of seeing the Merryman letters, although he would not deny that they might have been delivered at the address to which they were sent. He explained that he had done nothing prior to the filing of the petition on August 22, 1960, because the lots were not “one of the more important matters.” The taxes on the two lots were paid by Merryman, as trustee, until 1948,