Southern Real Estate Co. v. Strub

Pattison, J., delivered the opinion of the Court. In this case the appellees on the 1st day of April, „lí>LL filed their bill in the Circuit Court for Prince George’s County, in which they alleged in substance, that on the 15th day of’September, 1910, they entered into an agreement with one Jonah R. Long, of Youngstown. Ohio, to sell to him the farm, known as Avondale, situated in said county and containing four hundred and seventy-two acres of land, more ⁵¹⁵ or less, and that by a subsequent and supplemental agreement they sold him the growing crops and personal property on said premises. The whole purchase price therefor being fifty-nine thousand dollars ($59,000), which was to be paid as follows.: Eive hundred dollars on the execution of the contract, one thousand dollars within thirty days and two thousand dollars within sixty days, thereafter, and nine thousand dollars on Eebruary 1, 1911, and eleven thousand dollars upon the execution and delivery of the deed therefor on or before May 1, 1911.

The payment of the balance of the purchase money, to wit: thirty-five thousand five hundred dollars was to be secured by first mortgage and notes payable one year from date, with interest at six per centum per annum, payable semi-annually. Long, the purchaser, on the 25th day of January, 1911, with the assent of the appellees, assigned and transferred said contract unto the appellant corporation and under such assignment the rights of the1 said purchaser were assigned to the appellant, the defendant, corporation in the lower Court. The cash payment of five hundred dollars, as well as. the deferred payments of one, two and nine thousand dollars were paid, although the installment, of nine thousand dollars was not paid promptly at. the time designated in the contract. The amount to he paid on or before May 1, 1911, to wit, the sum of eleven thousand dollars was not paid, though at such time the plaintiffs had ready for delivery to the defendant a deed for said property, duly executed and acknowledged.

Thereafter the plaintiffs (the appellees) from time to time, at the request of the defendant company, extended the time within which it was. to comply with the contract aforesaid “to Juno, 1912,” when it was notified that, the contract was forfeited under the forfeiture clause contained in the aforesaid supplemental agreement of December 8, 1910. The plaintiffs at the same time demanded and obtained possession of the premises from the defendant and held the same to and at the time of the filing of the bill,- that on the 29th day of June, 1912, the appellant and appellees entered into an agree ⁵¹⁶ ment giving the defendant sixty days from July 1, 1912, to make a payment of ten thousand dollars and execute the said mortgage and notes which it failed to comply with and it has admitted its inability to comply with the same. It was, however, expressly agreed therein that such agrees ment should not be considered and treated as a waiver of the forfeiture then existing, and that the defendant’s failure to pay said sum of ten thousand dollars would render the agree-' ment in all its parts null and void. The defendants again defaulted and on October 3, 1912, the plaintiffs gave to the defendant notice that all its interest in said farm under said contract had ended by forfeiture, and a similar notice was thereafter given the defendant by the plaintiffs’ attorneys, and from such time to the day of filing the bill “no claim or pretension of claim had been made by said defendant to said property, but as far as their acts and dealings, or the acts or claims of its officers or any of its stockholders are concerned, the said contract and contracts of sale have been treated by all of them as forfeited and no claim set up against said property or for rights under the said contract.” The bill then alleges that after such notice of forfeiture the plaintiffs proceeded to advertise said property for sale and after months of advertisement they received an offer to buy it and when about to execute and deliver a deed to such new purchaser, “the objection was made by the attorney for1 said purchaser that said contract, though forfeited, until so decreed by the Court, operated as a cloud upon the plaintiffs’1 title and declined to carry out their contract or make any payment whatever until after a decree for forfeiture could be obtained or there should be some judicial determination .in an affirmative manner by some Court having jurisdiction in the premises, protecting any owner of said premises from any claim in equity under the original contract with Jonah R. Long, or the defendant his assignee.” It was to remove this supposed cloud upon the title that the plaintiffs, at the suggestion of the person offering to purr-chase1, filed the bill in this case.

The prayers of the bill are ⁵¹⁷ that the contracts, made with Long and his assignee, the defendant, he declared forfeited and null and void, and that the defendant be forever foreclosed of any equity of redemption in said property by reason of said contracts, and that the title be quieted as against any claim of the said defendant or of any person or persons, claiming by from or under it. The defendant answered the bill and filed a cross-bill. In its answer it admits that the eleven thousand dollars that was to he paid on or before May 1, 1911, was not paid, hut avers “that, on said date the plaintiff's were not in a position to convey to the defendant a, good title to said property” and denied that the plaintiff “ever executed, acknowledged and had ready for delivery a good and sufficient deed on the date above mentioned conveying merchantable title to said land to the defendant,” or “that any deed conveying a good and merchantable title to said property was at any time tendered to the defendant upon the payment of the said sum of money, hut on the contrary it charges that the plainti tfs were unable to convey to the defendant a good and merchantable title to said property because of the fact that, there was living one Rebecca, M. Hick ok, an infant, who had a vested interest in and to the said land, conveyance of which could not he made in any manner.” The answer further avers that, “ the plaintiffs by their contract agreed to convey a good and merchantable title to the said land which they axe unable to do because of the interest, of said infant Rebecca M. Hickok in and to said property, constituting a defect in 1he title, which when brought to the attention of the prospective investors in the stock of said corporation, frightened olf such prospective investors and in several specific instances was tlio sole cause of the subscribers to the stock of said corporation refusing to invest therein, so that the defendant was thereby prevented from obtaining large sums of money from such stock subscriptions which would have been more than sufficient to have enabled it to perform all the agreements made by it.” ⁵¹⁸ There are other averments or allegations in the answer and crossr-bill, hut we do not think it necessary to allude to them in deciding the question presented by this appeal. The cross-bill prays that the contract of sale and the sale of said property made by the appellees be decreed null and void, ab initio, and that the defendants to that bill, the appellees here, be required to make an accounting with it for all sums of money received by them for or on account of the purchase price of said property and that after an allowance of a reasonable sum for use and occupation of said property during the time it was in their custody and control that the balance be awarded to it.

The plaintiffs answered the cross-bill, asking for the same relief as sought by them under their original bill. A vast amount of testimony was taken, much of it altogether irrelevant, having no bearing whatever upon the issues presented and should not have found its way into the record. The Court below by its decree of September 10th, 1915, dismissed the cross-bill and declared the contracts with the defendant to be null and void, and the payments made to the plaintiffs upon the purchase money for said land forfeited and also declared that there is nothing due and owing by the said Leonard Strub, Senior, and Helen Strub, his wife, or either of them, to the said Southern Real Estate Company, and that the title to the real estate mentioned in