Powell v. Moody

⁶³ Pattison, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Cecil County, in equity, overruling a demurrer to a bill filed by the appellee, Edmund P. Moody, against the appellants John Powell and Bertha H. Powell, his wife, asking for specific performance of an agreement in writing dated the thirteenth day of August, 1926, hy which the appellants sold unto the appellee a tract or parcel of land lying and being in Cecil County, Maryland. Tbe said contract or agreement of sale is as follows: “Know all men by these presents, that we, John Powell "and Bertha H. Powell, his wife, of Elkton, Cecil County, State of Maryland, in consideration of the sum of twenty-five 00/100 dollars, * * * do hereby grant unto the said Edmund P. Moody, his heirs and assigns, the option or right to purchase within ten days from the date hereof, for the price or sum of twenty-two hundred and seventy-five dollars, all that certain piece or parcel of land now owned by me consisting of seventy acres, more or less, at 32.50 per acre, with the buildings thereon erected, situate in Cecil County, Maryland. Reserving all tops and logs that are down and reserving two small shanties, same to be removed from premises ten days after settlement.

I hereby further agree to pay one-balf the cost of survey. “And we hereby agree tbat if, witbin the time above specified, tbe said Edmund P. Moody, bis heirs or assigns, shall declare his or their intention to exercise the said option or right to purchase the said land, he or they shall be allowed tbe further period of twenty days from the time of such declaration within which to examine the title and prepare the deed for the said land; and we further covenant and agree that we or our heirs, executors, administrators or assigns, shall and will at any time whenever requested, within the said further period, and upon the payment of the balance of the said purchase money (of which the said sum of twenty-five 00/100 dollars shall be considered ⁶⁴ as paid on account) execute and deliver to the said Edmund P. Moody, his heirs or assigns, a good and sufficient deed of conveyance for the said land in fee simple — the said title to be good and marketable, and satisfactory to the said Edmund P. Moody, his heirs of assigns, and the said land to be clear of all liens and incumbrances. “Provided, however, that if the said Edmund P. Moody, his heirs or assigns, shall fail to exercise the said option or right, or to complete the said purchase as aforesaid, within the time or times above specified) then the said option or right shall cease and determine, and this agreement shall be considered null and void, and the said sum paid on account of said purchase money shall be forfeited to us and become our absolute property.” The bill alleged that “for the purpose of carrying out said agreement and obtaining a definite description of said land, a surveyor acceptable to all parties was employed to survey said land, and compute its acreage, and on the 16th day of August, the said surveyor met by appointment the said defendant, John Powell, at and upon the premises upon which the option had been given, being that tract or parcel of land on the south side of the road leading from Cayot’s Corner to Town Point, in the Second Election District of Cecil County, Maryland, adjoining lands of Ireland, Sharp, and Yogel, and then and there proceeded to survey the same, it being all of and the only farm land owned by defendants in Cecil County, Maryland, and which by the return of said surveyor was bounded and described” by metes and bounds, courses and distances, fully set out in the bill. As alleged in the bill “Before the expiration of the ten days provided for in said option agreement, the said defendant, John Powell, was duly notified that said option would be exercised, and that the land contracted to be sold would be accepted and paid for as soon as the surveyor, who represented both the plaintiff and the de ⁶⁵ fendants, in making said survey, made a return and description of said premises, as contemplated by said agreement, and a deed conveying said land could be written up, it being well known to tbe said John Powell tbat at that time tbe said surveyor was ill and unable to make a return on said survey. “Tbat as soon as tbe return of tbe surveyor was bad, a deed conveying said land according to the metes and bounds, courses and distances, furnished by said surveyor, was drawn, and the said defendants were notified to appear at the office of the solicitor for plaintiff, on the 2nd day of September, A. D. 1926 (which was well within the period of twenty days after notice given that the option would be accepted as provided by said agreement, Exhibit A), to execute said deed and to receive the purchase price of the seventy-seven acres of land, more or less, at the price of $32.50 per acre, but the said John Powell did not appear, but sent word by his wife, the said Bertha IT. Powell, that