Gelston v. Frazier

26 Md. 329, 1867 Md. LEXIS 11

• Court: Court of Appeals of Maryland
• Decided: February 14, 1867
• Status: Published

Opinion

Weisel, J.,

delivered the opinion of this Court.

YV'e think the Circuit Court of Baltimore city committed mo error in the order for dissolving the injunction issued in this case, from which this appeal was taken.

In June, 1831,' John Frazier, and .Mary Ann, his wife, united in a deed by which they conveyed the real estate of the wife, situated in the city of Baltimore, to Joseph Cabo+, in fee for the uses and trusts therein expressed, as follows :

“To have and to hold the lot, piece or parcel of ground and premises above described, with the appurtenances, unto the said Joseph Cabot, his heirs and assigns forever; in trust and confidence, nevertheless, and to, for and upon the uses and to the ends, interests and purposes hereinafter mentioned, expressed and declared of and concerning the same, that is to say : In trust for the sole and separate use, benefit and behoof of the said Mary Ann Frazier, so that she, during the joint lives of the said John and Mary Ann, be suffered and permitted either to hold, use, occupy and enjoy the. said ground and premises, or the clear rents, issues and income thereof to receive and take, and such rents, issues and income to apply to such uses as she may think proper, or otherwise with the consent and approbation of the said Joseph Cabot, or his heirs, testified -by his or their uniting in the due execution of any deed or deeds of conveyance with the said Mary Ann, and either with or without the concurrence of her said husband, to sell and dispose of absolutely, forever, or for any less estate therein, the whole or any part of the aforesaid piece or parcel of land or ground and premises with the appurtenances, for such price or consideration as the said Mary Ann shall deem fit, and the proceeds to invest in other property, or the same to apply and dispose of as the said Mary Ann shall elect and determine, so that neither the said ground and premises, nor the issues, income or proceeds of the same shall at any time during the natural life of the said Mary Ann, be subject to the power, disposal or control of the said John Frazier, nor be in any manner liable or bound lor, or by his debts, contracts or engagements. And from and immediately alter the decease of either of them, the said John and Mary Ann Frazier, then as to such part or parts, and so much of said trust estate and property as may remain undisposed of by the said Mary Ann, by deed as aforesaid, in trust for the use and behoof of the survivor or longest liver of the said John and Mary Ann, and the heirs and assigns of such survivor forever in fee-simple, to be then forthwith conveyed and released to such survivor, and his or her heirs and assigns, so that the trust hereby created shall close and be ended, and of, on, or upon no other use, trust, interest or purpose whatsover. And it is hereby declared to be the understanding of the parties hereto, and the true intent and meaning of this instrument, that during the coverture of the said Mary Ann Frazier, her separate receipts for any and all money, being the avails of this trust, shall he a protection to, and discharge of the trustee, who shall not he held answerable, except for wilful commission or gross negligence in the execution of the trust, hereby reposed in him.”

On the 13th day of May, 1833, the trustee, Joseph Cabot, and the said Mary Ann Frazier executed to William C. Harris, his executors, administrators and assigns, a lease for said real estate for the term of ninety-nine years, renewable forever, for the yearly rent of eleven hundred dollars, payable semi-annually. This lease was acknowledged in Baltimore by Mrs. Frazier and by Harris, (who signed and sealed the same as party of the third part,) on the said 1.3th day of May, 1833 ; and by Joseph Cabot, the trustee, and party of the first part, in Philadelphia, on the 16th day of May, 1833. Annexed to said lease, and following the acknowledgments of the parties to it as aforesaid, was the following covenant, signed, sealed and acknowledged by the said Mary Ann Frazier and her husband, John. Frazier, and hearing equal date, both as to the instrument and its acknowledgment, with the lease itself: “The undersigned, John Frazier, and Mary Arm, his wife, named in the foregoing lease to William O. Harris, do for themselves, their heirs, executors and. administrators, covenant with the said William C. Harris, his heirs and assigns, that the said John Frazier and Mary Ann his wife, and their and each of their heirs, shall and will at anytime hereafter, during the continuance of the foregoing lease, at the request and proper cost and charge in the law of the said William O. Harris, his heirs or assigns, and on his or their paying or tendering in payment to the said John Frazier and Mary Ann, his wife, or the survivor of them, or the heirs of the survivor, of the sum of eighteen thousand, three hundred and thirty-three dollars and one third of a dollar, lawful money, over and above all rent accrued by virtue of said lease and then in arrear. make, execute, acknowledge and deliver, or cause and procure to be made, executed, acknowledged and delivered to the said William C. Harris, his heirs and assigns, a good and sufficient deed of conveyance in fee-simple, of and for the lot, piece or parcel of ground and premises within described, with the appurtenances, free, clear and discharged from the rent reserved by said lease, and every part thereof.

In witness whereof, the said John Frazier, and Mary Ann, his wife, have hereunto subscribed their names and affixed their seals, on this thirteenth day of May, in the year of our Lord, one thousand eight hundred and thirty-three. ,

John Frazier, (Seal.)

Mary A. Frazier, (Seal.)”

Of this lease, and all the rights, privileges and appurtenances thereto belonging, the appellant, Hugh Gelston, be■carne the assignee, in 1839, under a sale by virtue of a decree of Baltimore County Court, as a Court of Equity. Regarding the above covenant as a part of the lease, and running with the real estate conveyed by it, and as succeeding to the rights and privileges of Harris under the covenant, Gelston, in 1843, proceeded to obtain a title to the reversion by tendering to the said Frazier and wife the sum stipulated in the covenant, and demanding a conveyance in fee for the land and premises in the lease. The tender having, for a consideration, been withdrawn, his relation as lessee continued to April, 1864, when he notified Mrs. Frazier that he would, on or before the first of May of that year, pay the said sum in extinguishment of the rent and demand again a deed in fee-simple for the leased premises. This being declined unless paid in gold or silver, and Gelston insisting upon paying in the legal tender notes of &he United States, commonly known as “greenbacks,” and ¡having paid the rent to the 1st day of May, 1864, he, in May, 1865, filed his bill in the Circuit Court of Baltimore city, by which, having alleged more particularly the foregoing matter and other facts and circumstances connected with it, he prayed from the defendants ( Musselman having been made, by decree of Court, trustee in the place of Cabot) a specific performance of said covenant, and also an injunction in the meantime restraining the parties from proceeding to collect further rents by distress, or in any other manner.

The injunction was granted and issued, and after answers filed a motion to dissolve was entered. A commission to take proof was subsequently issued by agreement, executed and returned, and the cause set down for hearing, and heard on the motion to dissolve.

In the view entertained by this Court, of the nature of the covenant which the appellant asks to be specifically performed, it becomes unnecessary to pass upon the other points presented in the briefs of counsel and argued. That taken upon the constitutionality of the legal tender clause in the Act of Congress, approved February 25th, 1862, for issuing treasury notes, was waived in the argument in this Court. If urged, we would have been relieved from reviewing the opinion of the Court below upon it, as will be apparent from what we are about to say upon the main branch of the case.

Returning, then, to the covenant, it cannot escape the notice of the Court, that the trust created by the deed was for the sole and sepárate use, benefit and estate of Mrs. Frazier during the joint lives of herself and husband. She was to hold, use, occupy and enjoy the property conveyed, or to receive the clear rents, issues, and income thereof, and apply the same to such uses as she might think proper ; or otherwise, to sell and dispose of absolutely, forever, or for any less estate therein, the whole or any part of the property, for such price or consideration as she should deem fit, and the proceeds to invest in ’other property, or to apply and dispose of as she should elect and determine. Rut it is expressly provided, that in making such sale of disposition of any estate in said property, or any part of it, the consent and approbation of the trustee, or his heirs, should be had, and should be' testified by his or their uniting in the due execution of any deed or deeds of conveyance with the said Mary Ann Frazier, and either with or without the concurrence of the husband ; and, also, that the said ground and premises should be held, or the issues, income or proceeds invested, applied or disposed of, so that neither the one nor the other should, at any time during her natural, life, be subject to the power, disposal or control of her husband, or be in any manner liable or bound for or by his debts, contracts or engagements. It was further provided, that after the decease of either of.them, any or so much of the , trust estate as might remain undisposed of by her, by deed as aforesaid, should be in trust for the use and behoof of the survivor, his or her heirs and assigns, and then forthwith conveyed and released to ,him or her in fee, so that the trust created by the deed should be closed and ended ; and for or upon no other use, trust, intent or purpose whatsoever was said trust created.

Though the property conveyed in trust was, prior to the deed, her own legal estate, of which she could not be divested, except in the mode prescribed by our* legislative enactments, to pass the real estate of a feme covert, (Cheney vs. Tipton, 3 Gill, 327; Johns vs. Reardon, 11 Md. Rep., 469 ;) yet the conveyance of her husband of it in trust by the deed of June 23rd, 1831, constituted it her separate estate for her use during the joint lives of herself and husband, with power to use or alienate it in a particular way, and,' so far as undisposed of, to go in fee to the husband after her death, if he survived her. In this case the deed is not silent as to the mode of alienation, and the mode specified is a negation of every other mode, and is “paramount law governing and controlling every contract in relation to it.” This was pronounced the settled law in Maryland, in Cooke vs. Husbands, 11 Md. Rep., 503, upon the authority of the cases there cited, and has of course been adhered to since. And in the ease of Tiernan vs. Poor, 1 G. & J., 229, this Court added, “that no decree could pass against a feme covert to carry into effect any contract she might make, unless such contract were within the limits of her jus disponendia doctrine emphatically recognized and repeated in Millar vs. Williamson, 5 Md. Rep., 234, 235. With such jealous care is the separate estate of a wife guarded and protected by a Court of Equity.

Applying this test to the eontract or covenant entered into with Harris by Frazier and his wife, in relation to the fee-simple interest in the property, we find that the trustee is no party to it, and cannot be bound by it. It is an agreement by Mrs. Frazier, ( with the concurrence of her husband only,) to sell and dispose of the entire fee-simple estate in the property to the lessee, his heirs or assigns, at at any time during the continuance of the lease, upon his or their paying or tendering paymentof the stipulated price, but it lacks the consent and approbation of the trustee. This cannot be inferred from his silence, or knowledge or subsequent acts. The deed conferring the power of sale and disposition, requires it to be testified by his uniting with the wife in the due execution of the instrument. “Of any deed or deeds of conveyance,” is the language of the trust; hut this must necessarily be extended to all binding engagements that would result finally in a conveyance. For unless the trustee cansent to the sale in the way specified, in the deed, (in the absence of fraud,) a Court connot treat him as a party to it and decree him to perform it, and his execution of the deed would bo necessary to convey to the purchaser the fee which is legally in him. The agreement, therefore, is without an essential party to it, — the trustee.

The effect of the agreement, if good in other respects, would he to divest the wife of her separate control of the proceeds of sale, by providing for the payment of the money to the husband and, toife thus changing the character of the trust and enabling the husband to participate-in the receipt and control- of the proceeds, if paid in their joint lives, thereby endangering the entire fund-and leading to the destruction of the trust itself during her life. la-this respect the agreement is repugnant to, and in violation-of the trust which secured to the wife a separate estate, and which a Court of Equity must regard when called upon to enforce a contract made under it.

The deed of trust was not only recorded, hut the lease itself which Harris took, and to which the covenant was annexed in the manner already stated, contained a full recital of the trust itself under, which the lease was made and executed. So that the lessee and his assignee, G-elston, had full and entire knowledge of the nature and requirements of the trust.

The lease itself was made in pursuance of and conformity with the trust; hut not the covenant which was appended to it. The very fact that it was annexed to the lease, -as a separate and distinct agreement, -in. which- the trustee forbore to unite, though cognizant of it, is- a circumstance to-show his dissent from its provisions, ( for he united in the-lease itself,) and that these did not. commend themselves as within the sphere of the trust, or as consistent with it.

We deem it unnecessary to go into- the inquiry whether the covenant was one in gross or one running with the land. The view we have taken of the covenant itself, and of its want of essential requisites to he enforced in equity, is amply sufficient for this case.

The injunction, in this case was ancillary, and the comrIpiainant’s right to it depended upon the validity and sufficiency of the covenant, which we have thus pronounced fatally defective. The injunction was properly dissolved. The cause, however, is to be remanded for further proceedings, to bo disposed of on final hearing, in conformity with this opinion. The appellees are entitled to their costs in. this Court.

( Decided February 14th, 1867.)

Order affirmed and cause remanded, with costs to the appellees.