Gorsuch v. Kollock

9 Citing cases

  1. In re Ford

    40 F. Supp. 955 (D. Md. 1941)   Cited 1 times

    I agree also with the opinion of the referee that the facts of the case do not constitute part performance which takes it out of the statute of frauds. See Gorsuch v. Kollock, 139 Md. 462, 115 A. 779. As the referee has so fully discussed the matter with specific reference to the Maryland cases, I think it unnecessary to re-state the applicable Maryland law. Reference, however, may also be made to some decisions of the Supreme Court of the United States which, as I understand it, are substantially to the same effect as the Maryland decisions. Ducie v. Ford, 138 U.S. 587, 594, 11 S.Ct. 417, 34 L.Ed. 1091; Winslow v. Baltimore O.R.R. Co., 188 U.S. 646, 658, 23 S.Ct. 443, 47 L.Ed. 635. The doctrine of part performance is of purely equitable origin as the statute of frauds does not expressly include it; and the nature of this case is not such that the Court should extend the doctrine, even if the case were otherwise a doubtful one. Counsel have not cited any case where the doctrine was applied under similar circumstances.

  2. Serio v. Von Nordeck

    56 A.2d 41 (Md. 1947)   Cited 12 times
    In Serio v. Von Nordeck, 189 Md. 388, 390 (1947), the plaintiff had been in possession of defendants' property with a month to month lease.

    Payment of "a part, or even the whole, of the purchase money is not an act of part performance which will of itself take the parol contract out of the statute." Boehm v. Boehm, 182 Md. 254, 264, 34 A.2d 447; Gorsuch v. Kollock, 139 Md. 462, 467, 115 A. 779; Miller, Equity Procedure, sec. 709. But payment of the purchase money by a life tenant to the remainderman, plus continued possession, may be equivalent to delivery of possession and may be sufficient to take a case out of the statute.

  3. Soehnlein v. Pumphrey

    37 A.2d 843 (Md. 1944)   Cited 40 times
    In Soehnlein v. Pumphrey, 183 Md. 334, at page 337, 37 A.2d 843, at page 845, it is said: "The rule has been adopted in this State that when time is expressly declared to be of the essence of a contract of sale, a court of equity will ordinarily not grant specific performance where the purchaser has failed to make payment within the time specified by the contract.

    It is an established rule that an oral promise to convey real estate will be specifically enforced, notwithstanding the Statute of Frauds, where there has been a part performance by the donee in reliance on the contract, whereby he will be defrauded unless the promise is performed. Moale v. Buchanan, 11 Gill. J. 314, 324; Hohman v. Hohman, 164 Md. 594, 616, 165 A. 812. Thus, possession of land by a donee in pursuance of an oral gift and the making of permanent improvements in reliance on the gift constitute sufficient part performance to entitle the donee to specific performance of the gift. Hardesty v. Richardson, 44 Md. 617, 22 Am. Rep. 57; Loney v. Loney, 86 Md. 652, 38 A. 1071. Likewise, continued possession of property in pursuance of a contract of sale together with payment by the purchaser of all or a part of the purchase price constitute part performance sufficient to take the case out of the operation of the Statute of Frauds. Gorsuch v. Kollock, 139 Md. 462, 115 A. 779; Buckner v. Jones, 159 Md. 679, 152 A. 515; Boehm v. Boehm, 182 Md. 254, 34 A.2d 447, 452. The reason that a court of equity exercises the power to compel specific performance of an oral agreement under such circumstances is that otherwise the vendor would be enabled to perpetrate a fraud upon the vendee and thus a statute designed to prevent fraud would operate as an engine of fraud.

  4. Boehm v. Boehm

    34 A.2d 447 (Md. 1943)   Cited 35 times
    In Boehm v. Boehm, 182 Md. 254, 34 A.2d 447 (1943), William Boehm, Jr., and Josephine Boehm, husband and wife, orally agreed to sell to the husband's parents, William Boehm, Sr., and Agnes Boehm, their one half interest in a farm.

    But the payment by the purchaser to the vendor of a part, or even the whole, of the purchase money is not an act of part performance which will of itself take the parol contract out of the statute. Miller's Equity Procedure, Sec. 709; Hopkins v. Roberts, 54 Md. 312; Gorsuchv. Kollock, 139 Md. 462, 115 A. 779. When possession is assumed as an act of part performance it must appear that the land has been delivered and the possession taken in pursuance of the contract and so retained and continued.

  5. Bellevue Club v. Punte

    148 Md. 589 (Md. 1925)   Cited 9 times
    In Bellevue Club v. Punte, 148 Md. 589, beginning at page 598, 129 A. 900, 904, it is said: "While it may not be accurate to say that a contract must be proved `beyond a reasonable doubt' before the courts will decree its specific performance, it is unquestionably true that in such cases the complaint must establish the allegations of the bill by clear, certain, and convincing proof, and the proof required `is greater than that demanded in most classes of civil cases.'"

    And this statement has been repeatedly approved by this Court. See Mundorf v. Kilbourn, 4 Md. 459; Polianski v. Polianski, supra, and Gorsuch v. Kollock, 139 Md. 469. While it may not be accurate to say that a contract must be proved "beyond a reasonable doubt" before the courts will decree its specific performance, it is unquestionably true that in such cases the complainant must establish the allegations of the bill by clear, certain, and convincing proof, and the proof required "is greater than that demanded in most classes of civil cases."

  6. Hearn v. Ruark

    129 A. 366 (Md. 1925)   Cited 7 times

    The rule of law is well established that, in all cases for specific performance, the contract must be accurately stated in the bill, and the proof must in every essential particular correspond with the terms of the contract thus set up. The proof must be clear and explicit, leaving no room for reasonable doubt. To doubt is to refuse relief. Semmes v. Worthington, 38 Md. 298; Mundorff v. Kilbourn, 4 Md. 459; Polianski v. Polianski, 138 Md. 602; Stern v. Shapiro, 138 Md. 625; Gorsuch v. Kollock, 139 Md. 462; Miller's Eq. Proc., sec. 676. It cannot be said in this case that the requirements above set out have been met.

  7. Collins v. Morris

    122 Md. App. 764 (Md. Ct. Spec. App. 1998)   Cited 10 times
    Holding plaintiff's possession of premises and regular payments for four years were consistent only with the existence of a contract to purchase the property

    In appropriate circumstances, the Courts of this State have held part payment coupled with the taking of possession to constitute sufficient part performance of an oral land sale contract to remove the bar of the statute of frauds. See Serio v. Von Nordeck 189 Md. 388, 391-92, 56 A.2d 41 (1947); Bauer v. Hamill, 188 Md. 553, 566, 53 A.2d 399 (1947); Gorney v. Marconi, 186 Md. 582, 589, 47 A.2d 762 (1946); Soehnlein v. Pumphrey, 183 Md. 334, 336, 37 A.2d 843 (1944); Allers v. Klein, 161 Md. 194, 203, 155 A. 420 (1931); Gorsuch v. Kollock, 139 Md. 462, 467, 470, 115 A. 779 (1921); Snyder v. Snyder, 79 Md. App. 448, 454-56, 558 A.2d 412, cert. denied, 317 Md. 511, 564 A.2d 1182 (1989). Compare Bank v. Hurst's Estate, 187 Md. 333, 338, 50 A.2d 133 (1946) Boehm v. Boehm, 182 Md. 254, 264-65, 34 A.2d 447 (1943); Semmes v. Worthington, 38 Md. 298 (1873).

  8. Snyder v. Snyder

    79 Md. App. 448 (Md. Ct. Spec. App. 1989)   Cited 14 times

    n with possession and substantial improvements, constitutes part performance, which, despite the Statute of Frauds, renders enforceable an oral agreement to sell land. Bauer v. Hamill, 188 Md. 553, 566, 53 A.2d 399 (1947); Serio v. Von Nordeck, 189 Md. 388, 391-92, 56 A.2d 41 (1947) (oral agreement to convey realty held to be specifically enforceable since buyer made part payment, took possession, and made extensive repairs to the house); Soehnlein v. Pumphrey, 183 Md. 334, 336, 37 A.2d 843 (1944) (successful suit, by buyer, for specific performance of oral agreement to convey realty where buyer made part payment, took possession, undertook to paint, excavate, weatherstrip, and screen the house, to erect a garage and chicken coops, to construct a driveway and to plant shrubs and trees); Allers v. Klein, 161 Md. 194, 203, 155 A. 420 (1931) (oral modification of written agreement for sale of realty held to be enforceable since buyers, plaintiffs, made part payment and took possession); Gorsuch v. Kollock, 139 Md. 462, 467, 470, 115 A. 779 (1921) (suit by buyer for specific performance of oral agreement to convey realty where buyer made full payment, took possession, and constructed both a concrete plant and an equipment shed). In Bauer v. Hamill, supra, for example, Hamill, a committee for an incompetent, sold real estate by public auction to the Slusses for $3,700.

  9. DiTommasi v. DiTommasi

    27 Md. App. 241 (Md. Ct. Spec. App. 1975)   Cited 13 times
    Allowing contribution between tenants by the entireties

    " These expenditures appear to have been made by way of "creature comforts" in connection with her continued occupancy. The appellant's reliance upon Masters v. Masters, 200 Md. 318, 89 A.2d 576 (1952), Shives v. Borgman, 194 Md. 29, 69 A.2d 802 (1949), Soehnlein v. Pumphrey, 183 Md. 334, 37 A.2d 843 (1944), Buckner v. Jones, 159 Md. 679, 152 A. 515 (1930), Gorsuch v. Kollock, 139 Md. 462, 115 A. 779 (1921), Whitaker v. McDaniel, 113 Md. 388, 78 A. 1 (1910), Loney v. Loney, 86 Md. 652, 38 A. 1071 (1898), Hardesty v. Richardson, 44 Md. 617 (1876) and Moale v. Buchanan, 11 G J 314 (1840), is misplaced since in none of those cases was the grantee or donee a cotenant of the property. Nor are the holdings in Cooper v. Davis, 226 Md. 371, 174 A.2d 144 (1961), or in Hohman v. Hohman, 164 Md. 594, 165 A. 812 (1933), here applicable.