Treiber v. Lanahan

Baiitol, J., delivered the opinion of this Court: We have examined this case with a good deal of care, and without entering into any particular statement of the pleadings and proofs contained in the record, shall briefly state the conclusions we have reached upon the whole case. A majority of the Court are of opinion that the relation existing between Treiber and Elurshutz in their ownership of the Revere House” property, was not that of partners. But that under their contract with Beall, they held an equitable estate, as tenants in common, in the lot of ground therein described. The whole Courj; concur in the opinion that the Circuit Court properly excluded from the consideration of the case the statement or settlement made by Elurshutz with Trei-ber, on the 4th of March 1852, marked “ Exhibit Gr.” As to Lanahan, that settlement was res inter alios;, his rights under the deed of trust of the 14th of April 1851, could not be impaired by any declarations of Elurshutz, thereafter made.

The cases of Stewart vs. Redditt, and Glenn vs. Grover, 3 Md. Rep., 67 and 212, referred to by the Judge of the Circuit Court, fully support his opinion on this point. There is evidence in the cause, however, independent of Exhibit Gr, to show that although Treiber and Elurshutz held the hotel property as tenants in common, they did not ¹³⁴ bold it in equal moieties; but tbat tbe contract between them was tbat eacb should bold an interest, to be fixed according to tbe payments made by eacb in improving tbe property. Tbis agreement is evidenced by Exbibit D, executed on tbe 3rd day of December 1850. It is contended by tbe appellee tbat tbis agreement was a secret equity existing between Treiber and Flursbutz, of wbicb Lanaban bad no notice at tbe time be toot tbe deed of trust; and being inconsistent with tbe title of Flursbutz, on tbe face of tbe contract with -Beall, it is not to affect Lanahan’s rights.

We do not concur in tbis view. Lanaban is not a tona fide purchaser of a legal title; at tbe time tbe deed of trust was made, Flursbutz held only an equitable title under tbe contract with Beall, and Lanaban or Roman, as purchaser of .an equity merely, took subject to prior equities. “Between equities, tbe established rule is, tbat be who has tbe prior equity in point of time, is entitled to tbe like priority in point of right.” 2 Story’s Eq. Jur., seo. 1502. Boone vs. Chiles, 10 Peters, 177 , 210.

Karthaus vs. Owings, 4 H. & J., 262 . Tbe agreement between Treiber and Flursbutz, evidenced by Exhibit D, determining their respective interests in tbe property to be according to tbe amounts respectively contributed by them in its improvement, was a valid agreement; being made before Lanaban’s rights accrued, it was not in derogation of bis rights, and therefore be took under tbe deed only such interest in tbe property as Flursbutz was entitled to under bis agreement with Treiber, to be determined according to tbe amount or proportion be bad contributed, or might contribute, towards tbe cost of tbe lot and improvements. We do not concur in the view suggested by tbe appellee, tbat tbe agreement is to be construed as having reference only to the building described in tbe contract for lease. The object and intention of tbe parties being to erect a building, with- appurtenances and internal arrangements ¹³⁵ suitable for a large hotel, they must have contemplated expenditures beyond the mere erection of the main building, and their whole subsequent conduct in fitting up and preparing the improvement for the purpose designed, demonstrates