Morgan v. Cleaver

Burke, J., delivered the opinion of the Court. This appeal presents for consideration the propriety of the action of the Circuit Court for Kent County in sustaining ¿i demurrer to the defendant’s third amended plea. The plea ⁶¹⁸ was filed on equitable grounds under Section 86, Article 15- of tbe Code. Tbe suit was in assumpsit.

Tbe declaration contained the common counts and one special count which 'is. here inserted: “And. for that on the 6't.h day of May, 1916, the defendant, Robert H. Morgan, made his check in writing, dated on that day and directed the same to the Third National Bank of Ohestertown, Maryland, and there required the said bank to pay to the plaintiff, Henry Cleaver, Admin., the sum of five hundred dollars ($500), who indorsed the same, which was thereafter duly presented by him to the said bank for payment, but was not paid, being returned by said bank as protested and marked ‘payment stopped’ by written request,'all of which notice was given to the defendant, and that the check still remains unpaid.” To this declaration the defendant pleaded: first, that he never was indebted as alleged; secondly, that he never promised as alleged, and thirdly, a plea' on equitable grounds which the Court held bad on demurrer. The case went to trial on the general issue pleas. The docket entries incorporated in the record show that the trial began on the 18th and was concluded on the 19th of 'October, 1916, by a verdict'for the plaintiff for $515.65, and that judgment for that sum was entered against the defendant on October 23, 1916. They also show that prayers were submitted by the respective parties and passed upon by the Court.

The evidence and prayei’s are not in the record, but it will be assumed that all defenses which were available to the defendant under the general issue were presented to the Court and jury. The record shows that the plaintiffs are the heirs at law of Sarah B. Cleaver, deceased, who was a resident of New Castle County, Delaware; that at the time of her death she owned a farm containing: 152 acres’, more or less, situated in that county and that Henry Cleaver, her son and one of the plaintiffs., was appointed administrator of her estate. The ⁶¹⁹ equitable plea is quite lengthy and sets out in full an agreement entered into on the sixth day of May, 1916, between Ilenry Cleaver, administrator1 of Sarah 13. Cleaver, and Robert II.

Morgan, the defendant, for the sale to and purchase by the defendant, of the Delaware farm for the sum of $15,000.00 upon the following terms and conditions, viz.: “Five hundred ($500.00) dollars upon the execution of this agreement, and the balance upon the delivery of a deed to him for said premises. It is agreed that possession of said property shall be delivered to the purchaser on the first day of March, A. D. 1917, and the said party of the first part agrees to execute aud deliver to the said party of the second part on of'before the first day of July, A. D. 1916, a good and lawful deed iu fee simple for said premises, clear of all encumbrances.” It is then alleged: “That said pretended contract was made and entered into in the State of Delaware where said land lay:—that prior to and at the time of the execution of this pretended agreement, Henry Cleaver, administrator, who was in reality and fact administrator in the State of Delaware, in New Castle County, of Sarah. Cleaver, who in her lifetime owned the farm mentioned in said pretended contract of sale, which farm upon hex death intestate descended to the plaintiffs as her heirs at law as tenants iu common, subject to a mortgage thereon for a large sum of money then on May 6th, 1916, an outstanding valid lion against said farm, and the said Henry Cleaver, administrator, had no power or authority—under the laws of the State of Delaware to sell said farm, and had obtained no. authority or order from the Orphans’ Court of