Coale v. Barney , 1 G. & J. 324 ( 1829 )

Dorsey, J.

delivered the opinion of the court. Against any decree for the specific execution of the agreement mentioned in the proceedings in this cause, many distinct and independent grounds have been relied on, by the solicitors for the appellants. First, it was contended that the refusal oí Hannah Kitty Chase, as alleged in the answer of Eliza Coale, (o perform her promise of uniting for the purpose of docking the estate tail; (which promise, it is said was the main inducement with Eliza 'Coale, to enter into the contract,) is sufficient to induce the court to withhold that relief which it might otherwise have been disposed to grant. Without deciding the question so warmly contested in the argument; whether the answer, without further proof, can sustain a defence thus founded on new, and as it were independent matter, (which it unquestionably could not, unaided by the unsafe and unusually comprehensive interrogatory in the conclusion of the bill of complaint,) it is sufficient to say, that this ground of resistance, is swept from the appellants, by the decision of this court in the case of Newton, et al. vs. Griffith, et al. 1. Harr. & Gill, 111, which determines that estates tail, to the heirs of the body generally, created after the first of January, 1788, are, by the operation of the act of descents, converted into estates in fee simple absolute. And this case cannot evade the rule thus established by the fact, that in Newton and Griffith, the question arose on the legal title to land, here the principle is to be applied to an equitable interest In this respect equity must follow the law. The alleged promise of Hannah Kitty Chase, to unite in docking the entail, was therefore an engagement to do a nugatory act; her failure, to comply with which, ought not to impair the rights of the appellees.

It can hardly be necessary to notice one of the objections relied on: that a Court of Chancery cannot enforce the contract against Eliza Coale, because it was wholly voluntary on her part; as she was to receive no consideration for her agreement to lease. If it be “no consideration” that the mother, a tenant for life, transfer one half her interest to her daughter, in property to which the daughter was entitled in remainder, to obtain the daughter’s assent to such an improvement of the property, as would (for aught that appears in the record) produce inconvenience or loss to no person interested; but was indispensable to any beneficial enjoyment of it by the mother; it is difficult to conceive, what, in such a case, would be required, as an adequate consideration.

We are told by the appellants solicitor, that the great depreciation in real property, and especially in the city of Baltimore,. is matter of public history, of which the court must judicially take notice, and that, although a regard to her own interest, might prompt Eliza Coale to agree to lease in 1813: yet the state of things is now entirely changed, and to enforce the agreement at this time, would be subjecting her to great hardship and loss. The condition of this country, in 1813, and a few years afterwards, was an accidental and unnatural one; the like may not again occur for centuries, and it is matter of sheer speculation and great doubt, whether the interest of all concerned would not be promoted by an immediate leasing of the property. But if there be hardship and loss in the case, to whom is it to be imputed ? To Eliza Coale, whose refusal to perform her agreement, prevented the execution of leases, when rents had reached their most unreasonable height. Had she not thus refused, from that transfer by her mother, which is now called “ no consideration,” she would have received in rents, up to this time, a sum of money, greater in amount, than the entire value of her present interest in the property: and, independently of rents received, her interest in the property would now have been four times as valuable as it is. In this she is not the only sufferer. But the consequences of this controversy are now visited, in a much higher degree upon her sister, Mrs. Barney.

It was also urged, that by another rale of chancery jurisdiction, the appellees were prevented from obtaining the interposition of a Court of Equity: viz. that where a party had a complete remedy at law, (as might here be had by a writ de partitione facienda:) or where nominal damages only could be recovered at law, a specific execution of the contract wdll never be decreed. In answer to this it may be replied, that the rule referred to has no application to the case before us. It does not appear that the lot of ground is susceptible of a division into moieties; and if it were, even if no life estate intervened, the estate of the appellees being merely equitable, no writ of partition could be sustained at law. That if it could, the condition of the parties, under such a proceeding, would be different from what it would be under the agreement. If partition were made at law, ’tis true, that Barney and wife, with Hannah Kitty Chase, might (as is stated) lease a moiety of the ground, for ninety-nine years, renewable forever, reserving the rent to Mary Barney and her heirs; but, non constat, that she would be willing to do so. She might with convenience assent to giving her daughters three-fourths of the rents, reserving her life estate in the remaining fourth: yet it by no means follows, that she could conveniently bestow upon one daughter the entire rents of one half of the property, whilst the other half, in its unimproved condition, continued on her hands destitute of value. That so far from nominal damages only, being recoverable, for such a, violation df contract, damages to the full extent of the injury sustained by the appellees, would certainly be recovered.

Another ground more strongly relied upon against the appellees is, that they have slept upon their rights, in such a way as to shew that the contract was abandoned. And many cases have been referred to, between vendors and vendees of real estate, in which a Court of Chancery has denied all aid to those, who have not been vigilant and active in asserting their rights; or, in the language of some of the cases, who have not been always “ ready, desirous, prompt and eager,” to comply with their portion of the contract, and to enforce on the other party, a like compliance with its stipulations. A contract to lease, say they, is to all beneficial purposes a sale; its effects being the same. This position would not be denied, if this controversy were between a lessor and lessee; nor would the conclusiveness of the authorities cited be questioned, if this were a' case between vendor and vendee. The justice, the policy of this rule is most obvious; the grossest frauds and injustice would be practised, if it did not prevail. Rut for this, stale contracts virtually abandoned, though not formally released; in case of a sudden rise or fall in the value of the thing contracted for, would be set up, and the party complainant would unfairly gain what the party defendant would unjustly lose: an amount precisely equal, to the appreciation or depreciation which the property had undergone; could that, in any event, be the predicament of the parties to this suit? Certainly not. As regards enhancement or diminution of price, their interests are homogeneous, inseparable; profit or loss can happen to neither, without a proportionate participation hy both. Except in the class of cases adverted to, no authority has been produced to shew that for such laches and under such circumstances, as are before us, relief has been denied under the presumption of a waiver or abandonment of the contract. The delay of the appellees, in proceeding to assert their rights, is considerable; hut it is satisfactorily accounted for, and the weight of the objection entirely fails when we reflect on the near relationship of the parties concerned, and look to the answer of Eliza Coale, and see what efforts were made to effect an amicable arrangement of the dispute, and that the door of negociation is still open, and that this implied abandonment of contract is no where insisted on in the answer.

The answer does not state, nor has any proof been offered to shew, that the consummation of this agreement will work any particular hardship upon the appellants, or subject them to loss, inconvenience or sacrifice of any description. Why then, these appellants should persist in a course of conduct, by which they have already lost in rents, more than the value of their whole interest in the property, is inconceivable. The hardship of the case lies altogether on the other side. A large lot of ground, as is stated in the agreement, lying “ in the city of Baltimore ” “ unimprovedowned by a mother for hgr life, with remainder in moieties to her two daughters in fee, is kept in a situation to he of no annual value to any of them, by the refusal of one of the daughters to permit its improvement in the usual and only practicable mode; when by complying with the solemn contract into which she has entered, she would relieve the wants of a needy sister and family, for whom she professes great affection and concern; and he herself invested with the immediate enjoyment of one half of that, to which she was only entitled in remainder; and this too, without lessening her interest in her other moiety.

The last ground, upon which a reversal of the' decree was demanded, was; that it was erroneous, inasmuch as it departed from the sense and' terms of the agreement, in investing Dugan, the trustee, with the privilege of judging of the reasonableness of the rent: a privilege reserved to Eliza Coale, as one of the persons interested.

That this court have the power to grant adequate relief, in a case like the present, we have no doubt. Such relief can only be had, by providing the means necessary to carry into effect, the great leading object of the parties ; the leasing the property at reasonable rents: and in doing this, it is our duty to gratify the minor provisions of the agreement, as far as it can be done, consistently with the accomplishment of the grand design. To pass a decree, as is suggested, that leases should be made at such rents as Eliza Coale should sanction, would be doing a nugatory act. She has, by her conduct in this transaction, shewn a fixed determination that no leases shall be made, if she can prevent them: unless at a sacrifice, of the interests of her mother and sister, which she is not warranted in demanding„ She has therefore forfeited this right, by acting, and shewing a determination to act, in such a way, as to render her exercise of it wholly inconsistent with that relief, to which the clear equities of the appellees entitle them. In transfering the power to another tribunal, the court know of none more safe, none so convenient, as the trustee by whom the leases are to be made and executed. So much of the Chancellor’s decree therefore, as appoints Cumberland Dugan, trustee for the purpose of executing and performing the agreement, and gives costs to the appellees should be affirmed with costs: but the residue of said decree must be reversed, because the leases are not decreed to be made for ninety-nine years with liberty of renewal, as directed by said agreement: and upon a ground not involving the gist'of the controversy between the parties, and therefore, perhaps, not noticed in the argument: but which obviously appearing on the face of the decree, cannot be disregarded by this court. One fourth part of the rents received by the trustee, are directed to be paid to the said Eliza Coale, her executors and administrators; and in like manner, one other fourth after the death of the said Hannah Kitty Chase. The interest of Eliza Coal'e, in that portion of the rents, to her payable, under the deed from John E. Howard to William Paca, is real, not personal estate; and as such cannot be limited to her executors and administrators after the manner of personality. Such a limitation is contrary to the rules of law, and by it nothing passes but a life estate to Elisa Coale: her executors or administrators take nothing. Vide 6 Ba. Abr.p. 21, tit. Rent, letter H. Tistrue, the decree of the Chancellor has literally pursued the agreement; but where an agreement contains provisions, which, by reason of some technical principle of law, cannot be carried into effect according to its literal import, it is the duty of a court of equity for the sake of the intent, to give it that construction which the rules of law will tolerate, and the intention of the parties to be collected from the whole instrument will justify. This will be effected, by ordering the rents to be paid to Eliza Coale and her heirs instead of executors and administrators. As authorities to shew that courts of equity to gratify the intent, construe agreements even contrary to the words, we would refer to 1 Brid. Ind. 430. pl. 6—7, and to 5 Ves. 399.1 P. Wms. 234.

Although the appellees do not appear before us, seeking any revision or alteration of the decree; yet as it is to be new-modeled to secure the rights of the appellants: such a change should be made in it, as will do equal justice to both parties. Instead therefore of Mary Barney’s moiety of the rents, after her death, being made payable to her children, their executors and administrators, as directed by the decree, it should be to her children and their heirs. And as the appellees have done nothing, which could authorize a court of Chancery to transfer to Cumberland Dugan the right, which by their agreement they have reserved to themselves, of deciding on the reasonableness of the rents reserved ; the trustee should be enjoined to execute leases for such rents, as he, together with William Barney and Mary his wife, and Hannah Kitty Chase should think reasonable.

,A decree, in conformity to these suggestions will be signed by the court.