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Fett v. Sligo Hills Development Corp.

Decided: July 10, 1961.


Appeal from the Circuit Court for Montgomery County; Shure, J.

Henderson, Hammond, Prescott, Horney and Marbury, JJ. Hammond, J., delivered the opinion of the Court.


In an ejectment suit tried by the court without a jury, Judge Shure awarded the plaintiff, Sligo Hills Development Corp., the owner of a dwelling house in Montgomery County, a judgment for immediate possession of the house and damages of $9,450.00 (its rental value of $175.00 a month for fifty-four months) against its occupants, Mrs. Fett, a widow, and her four minor children. Their appeal from the judgment against them followed.

The pleas of the Fetts were not guilty and a plea on equitable grounds, alleging they were entitled to possession as "the heirs at law" of Herbert Fett, the late husband and father, "who obtained equitable title and the right to possession pursuant to a contract between the plaintiff and the said Herbert Fett, wherein the plaintiff agreed to convey legal title to the said Herbert Fett." Judge Shure found that there had never been an enforceable contract.

It appears from the testimony produced on behalf of the plaintiff -- the defendants produced none -- that Herbert Fett was an accountant in New York, employed by Sligo and several other affiliated corporations, that he came to Washington to work full time for these corporations, that the house in question was built by Sligo, which was a developer and builder of houses, so that Fett and his family would have a place to live, and that the family moved in on June 1, 1956, with Sligo's permission.

There was further proof that Sligo orally agreed to sell Fett the house for its cost, approximately $40,000, and that, when he sold his house in New York, he was to pay $25,000 in cash and give "a deferred purchase money mortgage for the balance of the purchase price." Fett died in February, 1957. His widow and children have continued to live in the

house since his death. Nothing was done toward consummating the understanding as to the sale and purchase of the house either before or after Fett's death. The Fetts have lived in the house rent-free since they moved in and have never paid any part of the taxes, insurance, maintenance or other expenses of the property. Nor have they ever, before or after demand to vacate or suit to enforce that demand, tendered compliance with their obligations under the understanding they asserted or suggested their ability and willingness to do so. In May, 1957, several months after Fett's death, Sligo's representative called on Mrs. Fett and asked her whether she wanted to buy the house. Her reply was that she could not afford the house and would make arrangements to move to New York after school closed. In September or October, Sligo's representative went again to see her and requested her to move, and was told that she had no place to go and intended to stay on.

After Sligo had attempted without result to obtain possession in a landlord and tenant action in the Peoples' Court of Montgomery County, the ejectment suit was filed in May 1958.

Appellant's argue that the admissions in the testimony of Sligo's officers as to the existence of the contract they rely on constitute a sufficient memorandum to satisfy the Statute of Frauds and, alternatively, that an oral contract to convey real property will be enforced specifically where there has been part performance by the vendee in reliance on the contract, as they claim there was here, and, finally, that the terms of the contract were definite enough to have permitted Fett to have obtained specific performance and that they, as his heirs, are entitled to the same equitable relief.

In our view of the case the Fetts, assuming them to be right in either of their first two contentions, cannot win because, to prevail on equitable grounds in an ejectment action, a defendant must show such facts as would entitle him to relief in a court of equity against the judgment, if recovered; 1 Poe, Pleading, Tiffany Ed., Sec. 275A, and Williams v. Peters, 72 Md. 584 (interpreting what was, before its repeal by Ch. 399 of the Acts of 1957, Sec. 91 of Art. 75 of the

Code of 1951, which has been replaced by Md. Rule 342 d 1); and the Fetts have not met that burden. Even if the understanding between Sligo and Fett as to the house had been reduced to writing, its terms were so indefinite that a court of equity would not have granted Fett specific enforcement against Sligo. If that remedy would not have been available to Fett as a sword against Sligo, as we hold, a claim to it cannot serve as a shield for Fett's heirs, the appellants in Sligo's ejectment suit against them. Indeed, the widow ...

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