Polk v. Clark

Fowler, J., delivered the opinion of the Court: The bill in this case was filed by Gabriel Clark Polk, a grandson of the late Gabriel D. Clark, against the trustees under the will of the latter to enforce the specific performance ³⁷³ of an alleged oral contract for the conveyance of certain real estate in the city of Baltimore. The bill alleges that during his life the testator gave the property in question, known as No. 236 Laurens street, worth $4,500, to the plaintiff, and put him in possession thereof, and that relying upon this act of his grandfather as a gift, he expended a considerable sum of money in making permanent improvements on the property, and that the deed was about to be executed by his grandfather to the plaintiff when the former “ was stricken with sickness, which alone prevented him from conveying him the legal title to said property to ” the plaintiff. The answers deny the alleged gift and agreement. The Circuit Court by its decree of June 22, 1900, dismissed the bill, and the plaintiff has appealed.

It appears to us there can be no difficulty in disposing of the question presented by this appeal. The law involved is well settled. In Haines v. Haines, 6 Md. 443 , it was held that when the testimony showed that the father had repeatedly said he had given the land to his son, and also that the latter took possession of it, exercising all the time the rights of an owner, improved it by repairing the buildings and planting orchards, the inference is justified that there was a contract between them, “ that the son was to have the land if he would improve it; and possession of the land and expenditure of money by the son in pursuance of such contract, frees it from the objection that it is in violation of the Statute of Frauds. But in Hardesty v. Richardson, Exr., 44 Md. 621 , the rule is broadly and clearly laid down that in all cases like this there must be the most satisfactory evidence of the contract sought to be enforced. “ The proof must be clear, definite, and conclusive as' to the fact of the gift, and as to those acts done on the faith of it which render inequitable any attempt by the donor to avoid the gift.” What is the condition of the proof we find in the record before us ?

In the first place it is clear that the testimony of the plaintiff was properly excluded, the other party to the alleged contract being dead. Art. 35, sec. 2 of the Code. But if his tes ³⁷⁴ timony should be given its full effect, his case would not be helped. He was asked by his counsel upon what arrangement with his grandfather he took possession of the house on Laurens street, and he replied : "There was no arrangement at all.” It is true he also says that about the time he was married in 1895, his grandfather promised him a house, and said he would give him one.

And that he understood he was to pay the taxes and that he owned the house. But he does not undertake to say that the house in question was ever promised to him. On the other hand if the alleged donor had intended or desired to execute a deed, there was ample opportunity for him to do so, but there is no evidence to show that he ever contemplated such action. However, as this testimony is clearly inadmissible, it is unnecessary to discuss it further, but we will briefly refer to the other testimony adduced to sustain the allegations of the bill, consisting of that of three witnesses, the mother, the wife and aunt of the plaintiff.

His mother, when asked what was said by her father in reference to the plaintiff and the Laurens street house, replied that he had told her he zvoidd give the plaintiff that house, and at the same time asked her if she thought he could keep it in repair and pay taxes. She supposed the plaintiff was the owner because her father had said to her he had given the house to the plaintiff. The plaintiff’s wife, it appears, saw the grandfather but three times, and her whole testimony is to the effect that he asked her if she thought her husband could pay the taxes and keep it in order, and she answered “yes.” “That was all.” The aunt, when asked if she had any conversation with the alleged donor in regard to the house, testified that the conversations were all on his side, and that he merely told her that he had fixed the plaintiff very nicely, and had given him the house in question. It may be assumed ex gratia, though we by no means so concede, that this testimony on behalf of the plaintiff measures up to the requirements of the rule that to be effective it must be clear, definite and conclusive.

The mother’s testimony in the first instance was that a gift would be made in the future, ³⁷⁵ and then that the gift had been made in the past; but at the same time she said she was asked if she thought the plaintiff would be able to keep' the house in repair and pay the taxes. The aunt’s testimony, as indeed is that of all the plaintiff’s witnesses, is quite as consistent with the theory that the plaintiff had been put in the house by his grandfather on the condition that he would keep it in repair and pay taxes as with his contention that a gift of the house had been made to him by his grandfather. Recalling the situation of the parties, it is difficult to believe that if there had been any intention on the part of the plaintiff’s grandfather to give him the legal title to the