Barnes v. Sind , 347 F.2d 324 ( 1965 )

PER CURIAM.

We find nothing in the petition for rehearing en banc which did not receive the full consideration of the Court. The petition for rehearing en banc is denied for the reasons stated in the opinion of the Court.

In light of the dissenting opinion of Judge Sobeloff, in which Judge Bell joins, it may be appropriate to add a few brief comments.

It is very doubtful that the lady has any dower interest in this land held in the name of her husband for the benefit of a business partnership of which he is a member.^* If she has none, even a general warranty deed would confer no right of recovery upon the purchaser for there would be no violation of the warranty.

Whether or not the wife does have a dower interest in the land could have been tested in this action by the simple device of a joinder of the wife. The plaintiff elected not to do that. If the plaintiff had been willing to accept a quitclaim deed under the decree of the district court, he could still have tested the potential dower claim in an action to remove the cloud upon his title. That the plaintiff was unwilling to do.

Finally, the special warranty deed the contract called for would appear to give protection only against the claims of the grantors, their representatives and assigns. It would seem most unlikely that under the Maryland law such a warranty would be violated by an outstanding dower interest known to the parties at the time the deed was given and accepted. Nevertheless, the decree of the district court was wholly unacceptable to the plaintiff and it was the plaintiff who brought the case here on appeal for the stated purpose of giving him some semblance of a basis for a subsequent lawsuit for damages, or to what amounts, in effect, to a diminution of the purchase price.

It is time this litigation approached its end and that current claims be disposed of without encouraging further litigation and shadow-boxing on the basis of still other claims.

Since the district court’s decree of specific performance was unacceptable to the plaintiff, as was every house and lot tendered to him as the equivalent of the one he first sought to buy, it now seems appropriate that he should be limited to his damages.

This extended, expensive litigation resulting in an award of damages is not likely to lead other developers of residential real estate to believe that “it is comparatively safe to renege on a sale to a Negro purchaser.”

Petition denied.

* See Annotated Code of Maryland (1957), Art. 73A, §§ 8 and 25(2) (e).