White v. Athey

²⁹ P£r Curiam. This is an appeal from an order of the Circuit Court for Montgomery County dismissing a bill essentially for the specific performance of an alleged contract for the sale of real estate, brought by the plaintiffs-appellants, the Whites, as purchasers, against the defendants-appellees, the Atheys, as sellers. The bill also sought an order requiring the defendant Watkins as Clerk of the Circuit Court to record a deed conveying the property, which had been executed, but not acknowledged, by the sellers. The bill and answer indicate a controversy over the merits of the case, but the trial court found it unnecessary in this proceeding to go into that controversy and decided the case solely on the basis of res judicata.

The Whites entered into negotiations with Edward M. Athey for the purchase of land owned by the latter, most, if not all, of which the Whites had been renting for some time. As a result of these negotiations a short and rather informal agreement was signed by them on July 23, 1957. Mary E. Athey, wife of Edward M., did not join. This document was indefinite as to some terms and the appellants now concede that of itself it was insufficient to serve as the basis of a decree for specific performance.

Largely because of the discovery of an existing mortgage not known to the Whites at the time of signing the agreement of July 23 rd, further negotiations followed, which, the AVhites assert, resulted in a new agreement between them and Mr. and Mrs. Athey, and the signing by the Atheys late on the night of August 9, 1957, of the deed above referred to. The bill alleges that there was no notary then available and that the Atheys were to return the next day and acknowledge the deed. They did not do so, the deed apparently remained in the hands of the settlement attorney, and the Atheys later undertook to repudiate the entire transaction, though they accepted some relatively small payment or payments which were referable to a contract of sale. After the Atheys refused to go on with the sale they brought a suit for rent against the AVhites.

The latter countered by bringing a bill in equity (through counsel other ³⁰ than their present counsel) for specific performance of the alleged contract of sale of July 23, 1957. The Atheys answered, testimony was taken and the Whites’ bill was dismissed, without