Suburban Realty Co. v. Hoerner

Grason, J., delivered the opinion of the Court. On May 22, 1945, William Hoerner, widower, executed an agreement in writing whereby he agreed to sell to the Suburban Realty Company, Incorporated, thirty-nine acres of land, in Baltimore County, described in ²⁶¹ two deeds: (1) dated April 3, 1902, from Henry Laubach, Jr. and wife to William Hoerner and wife, containing 18.9 acres of land, more or less; (2) dated January 4, 1905, from Mary Emmel, et al, to William Hoerner and wife, containing two tracts, one containing 19 acres, more or less, and the other containing 2 acres, 1 rood and 25 square perches of land, more or less. These deeds were duly recorded among the Land Records of Baltimore County. The contract, among other things, provided that the purchase price was to be $16,000.00, of which $1,600.00 had been paid, and that the vendor should have the right to harvest all crops up to December 31, 1945.

On January 14, 1946, William Hoerner, the vendor, died without executing a deed for the property he agreed to sell to the vendee. William left a will which was probated in the Orphans’ Court for Baltimore County, and Letters Testamentary were granted to Ross W. Fitch on January 21, 1946. He left surviving him one child, his son Henry, and under the will all of the property which he agreed to sell to the Suburban Realty Company, Incorporated, (appellant) was left in trust to Ross W. Fitch, to pay the income and profit therefrom to William’s son Henry, and upon Henry’s death the trust ceased and the property remaining in the hands of the trustee vested in certain persons named in the will. After the execution of the contract, a settlement of the transaction was delayed because of the ill health of the seller, and counsel for the parties arranged for settlement on January 7, 1946, at the office of the Maryland Title Guarantee Company, Baltimore, Maryland.

William Hoerner did not appear at that time because of illness, and counsel then arranged for the seller and a representative of the purchaser to have the deed executed at the home of the seller, but he died before this was done. The original bill of complaint in this case was filed by the appellant on February 7, 1949, and the defendants ²⁶² are all persons named in the will of William:. Hoerner, except one, who was then dead. After William’s death it was discovered that he did not own all the property he contracted to sell to appellant, but that his son Henry owned a two-ninths interest in the tract secondly described in the deed secondly herein referred to.

After this discovery the appellant, through its representatives, alleges that it contacted all of the parties under William’s will,, then living, either personally or through their counsel, and they were assured that the interest of Henry would be acquired and that all .of the property which it agreed to buy and William agreed to sell under the contract of May 22, 1945, would be conveyed to it under the terms of said contract. The bill sets up a number of things the defendants or their counsel told the agents of the appellant which lulled it into inaction, and explains their tardiness in bringing the suit. The original bill contains two prayers, one for the specific performance of the contract dated May 22, 1945, and the other for general relief. It appears from the bill that Henry was dissatisfied with his father’s will, and on December 12, 1946, caveated the same, and issues were framed and sent to the Circuit Court for Baltimore County for trial.

Henry removed the case- to the Superior Court of Baltimore City, and on May Í8, 1948, dismissed -the same. It is averred by the appellant in its bill that the caveat proceeding instituted by . Henry delayed it in. taking action* and that its agents , were told by the parties named in. William’s will that after the caveat proceeding was concluded.they would get Henry to join with them in deeding all of the property that William agreed to sell to it under the contract aforesaid, at the price named therein. Ón July 27, 1948, Henry instituted a proceeding in the .Circuit Court, for Baltimore County, in Equity, against-Ross W. Fitch and all of the. .parties named in William’s will.

It seems that Henry claimed all of -the property owned by William, under .an agreement which he had with, his father. In that proceeding there was-/a ²⁶³ compromise entered into between the parties thereto, which the chancellor approved, and by a decree passed on March 7, 1949, Henry acquired the seven-ninths interest which William owned, and which was included in the aforesaid contract. The other two-ninths interest William did not own was vested in his son Henry. The original bill of complaint filled seven closely printed pages of the record, to which the defendant demurred.

The demurrer was sustained. On June 10, 1949, the plaintiff filed its amended and supplemental bill, and on the same day a demurrer to it was filed. The demurrer was sustained and an appeal taken to this court and was dismissed. 197 Md. 31 , 77 A. 2d 142 . The