Serio v. Von Nordeck

Markell, J., delivered the opinion of the Court. This is an appeal from an order overruling a demurrer to a bill for specific performance of an oral contract to sell (or, technically, lease) real property to plaintiff. The principal question is whether part performance takes the case out of the Statute of Frauds. We do not wish to enlarge the judicially established exceptions to the statute.

The allegations of the bill are not altogether clear and full. Nevertheless, we think they are sufficient, as we understand them, to take the case out of the statute. If the proof falls short of the allegations, as understood by us, the lower court will act accordingly. The bill alleges in substance that: Plaintiff has been in possession of the property No. 1315 Poplar Grove Street .[at the argument said to be a tavern] “by virtue of a lease from defendants, from month to month since 1939.” [The rental and other terms of the lease are not stated.] Defendants, husband and wife, own the property in fee.

On January 7, 1946 “defendants verbally agreed to sell and convey” to plaintiff the property for $20,500, “subject to a ground rent of $90 per year, for 99 years, renewable forever.” On January 7, 1946 plaintiff gave his check for $5,000, dated January 8, 1946, to the order of defendant husband, in part payment of ³⁹¹ the purchase price, the check was accepted by the husband in the presence of his wife, on behalf of both, in part payment, and “was cashed by defendants” after being endorsed by both. On January 10, 1946 plaintiff, relying on the agreement to buy the property, contracted for “painting, plumbing, cementing, and repairing the roof and the door” for $417; the work has been done by the contractor and paid for by plaintiff. Relying on the agreement to buy, plaintiff also “made arrangements to finance the payments of the property,” had an oil burner installed at a cost of $85, and “gave a contract for renovating the entire front of the building, including the door,” to cost $1,500. After defendants refused to comply with the agreement to sell, only a part of the renovating work was done.

Plaintiff has performed all the requirements of the agreement on his part, is ready, able and willing to complete the purchase and has so advised defendants, but defendants have refused to convey. Specific performance and general relief are prayed. Although only the ruling on demurrer to the bill is before us for review, the record shows that defendants filed a combined demurrer and answer. In the answer the husband “admits that he agreed with plaintiff as alleged” but says his agreement was conditioned upon acceptance by his wife and also contemplated part payment by a purchase money mortgage; the wife denies acquiescence in or affirmance of any agreement made by the husband for sale.

The allegations of the bill we construe (with some doubt, in view of “arrangements to finance the payments”) as averring a definite agreement to pay $20,500 in cash. Defendants contend that the acts of part performance alleged in the bill, viz., part payment, possession and repairs or improvements, do not so unequivocally refer to the alleged agreement of purchase as to take the case out of the statute. Payment of “a part, or even the whole, of the purchase money is not an act of part performance which will of itself take the parol contract out of the statute.” Boehm v. Boehm, 182 Md. 254, 264 , 34 A. 2d ³⁹² 447; Gorsuch v. Kollock, 139 Md. 462, 467 , 115 A. 779 ; Miller, Equity Procedure, sec. 709. But payment of the purchase money by a life tenant to the remainderman, plus continued possession, may be equivalent to delivery of possession and may be sufficient to take a case out of the statute.

Drury v. Conner, 6 Har. & J. 288, 292 . Defendants say plaintiff’s possession and his repairs or improvements refer not to the alleged agreement of purchase but to the continuing tenancy