Appeal from the Circuit Court for Cecil County; Carter, C. J.
Brune, C. J., and Henderson, Hammond, Prescott and Sybert, JJ. Hammond, J., delivered the opinion of the Court.
This case turns on the validity of a parol partition of land between tenants in common. The administratrix and sole devisee of George F. Cooper, one of the tenants, brought a bill for accounting against Lester W. Davis, the other tenant, to discover the amount due Cooper for sand and gravel excavated from half the tract of land over a period of years.
In defense, the respondent pleaded and established to the satisfaction of the chancellor that there had been an oral agreement to divide the commonly owned parcel of ground, which had been executed and would, therefore, be recognized and enforced in equity. The transaction though sometimes referred to below as a sale was in effect and substance a voluntary partition.
Cooper and Davis, as tenants in common, owned a forty-four-acre tract of land in Cecil County adjoining a lot on which Cooper, a bricklayer, had built his house. Davis, who
is in the sand and gravel business, had acquired his undivided one-half interest in the land in January 1946. There was testimony that shortly thereafter he and Cooper entered into the oral agreement that Cooper was to become the absolute owner of the twenty-two acres next to his house (which because of this fact and its frontage on a public road was to him the more valuable half), and Davis was to become the absolute owner of the lower or easterly twenty-two acres, which were adjacent to other land owned by Davis and on which was a partially excavated sand and gravel pit. The division line was established by a survey. Davis had a writing drawn providing for the exchange of deeds to the respective halves which were described according to the survey. Cooper said there was no need to pay money to the lawyers (he had agreed to pay half the expenses of the voluntary partition), since he had agreed to the division, and when Davis had finished excavating his newly acquired half he would sell him the remaining twenty-two acres. The oral agreement further provided that Davis was to build a new road to the public highway which would serve both parcels of land and to divert the trucks hauling Davis' sand and gravel from an existing road running close to Cooper's house. After the oral agreement was reached, Davis set up a $200,000 washing plant which would not have been justified without a supporting supply of sand and gravel of at least one hundred acres -- which Davis did not have without the twenty-two acres he got from Cooper. Davis built the new road at a cost to him of $3,000 and took out large quantities of sand and gravel from the middle of 1946 to Cooper's death in April 1954 and thereafter, until the summer of 1955 when Cooper's heirs caused him to stop.
Cooper could see the excavating operations from his house and he frequently visited the site and the plant; further, he permitted Davis to use water from other land he owned for the washing plant; Cooper did not keep any account of the quantities excavated nor did Davis, who treated the twenty-two acres he obtained from Cooper and the additional eighty acres adjacent to the washing plant as a unit. Cooper never asked Davis for payment of any kind, although some years after Davis began to excavate, when Cooper was old and in
need of cash, he said to his nieces, they claimed, he would sue Davis. Davis excavated to within ten feet of the line between his half and Cooper's half but did not dig at all on Cooper's side of the line.
Almost all of this testimony came in on cross-examination. It is contended that Davis should not have been allowed to testify as to transactions with the deceased Cooper under Code (1957), Art. 35, Sec. 3. It has been held that an adverse party who is cross-examined as to a transaction with a decedent has been "called to testify by the opposite party" and therefore his answers are admissible under the express exception to the prohibitions of the statute. Heil v. Zahn, 187 Md. 603, 606. The redirect examination was limited by the chancellor to matters which had been explored on cross-examination, and we find no error in the admission of Davis' answers on redirect. Bauer v. Harman, 161 Md. 131.
The testimony of Davis as to the oral contract was supported by other witnesses -- the surveyor who established the division line in 1946 and Cooper's nephew who testified that soon after Davis had begun to excavate, he was employed to bulldoze part of Cooper's twenty-two acres. Cooper had shown him the dividing line and told him not to work on the other side because that belonged to Davis; he testified also that Cooper had told him he was going to dig test holes in order to be able to sell his retained twenty-two acres for the excavation of sand and gravel.
To prevail on his defense of ownership, Davis must have offered the same clear, definite and unequivocal proof of an executed oral contract as would have entitled him to specific performance as complainant. Gough v. Crane, 3 Md. Chancery 119; Fett v. Sligo Hills, 226 Md. 190, 194. We think ...