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Statement of the Case.

dead, as well as three of her four children, leaving Hannah Erney sole survivor of such devisee; that plaintiffs have applied to defendant Hannah to carry out this agreement, but she refuses to acknowledge it, and claims that, under the provisions of the will, she, as the sole survivor of the devisees of the lots in square 199, is entitled to all of said property and the proceeds thereof. Plaintiffs further averred that her agreement to sell the homestead property was the only consideration for the appropriation to the widow and her four children of the proceeds of sale of the property in square 179; that under the will defendant and her co-devisees were not entitled to any portion of such property except for their current support, while the daughters were unmarried, and that plaintiffs by making the agreement gave the defendant Hannah and her co-devisees $18,000 — much more than the entire value of the homestead property ; that it was the intention of the testator that in the ultimate division of the estate all the children should have an equal share; that such intention was recognized and was the basis upon which the agreement was made, and that the distribution of the proceeds of the sales of square 179 was in partial execution of such intention and agreement.

The prayer of the bill was that defendants Hannah and her husband might be enjoined from disposing of the property in square 199 until the rights of the parties could be definitely settled, and that such property might be sold and the proceeds distributed upon the basis of the agreement.

Defendant Hannah Erney in her separate answer admitted signing the deed for the sale of the remaining lots in square 179, but denied there was any agreement or condition that the homestead should be sold and the proceeds divided in the same manner.

Replication was filed, proofs taken, and, the case coming on to be heard in the court below, the bill was dismissed upon the ground that the statute of frauds presented an insurmountable barrier to relief. Plaintiffs appealed to the General Term, by which the decree of the special

Argument for Appellees.

term was affirmed, and the plaintiffs appealed to this court.

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Mr. James G. Payne for appellants.

Mr. Edwin B. Hay for appellees.

The statute of frauds in Maryland requires written evidence of the contract, or a court cannot decree performance. The words of the statute are, “unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” Barry v. Coombe, 1 Pet. 640. And to authorize a decree for the specific performance of a parol agreement within the statute, on the ground of part performance, it is indispensable, not only that the acts which are alleged to be part performance, but the contract itself, as stated in the bill, should be established by clear and definite proof.

In Smith v. Crandall, 20 Maryland, 482, in which reference is made to 3 Maryland, 490, it is said that where a party claims to take the case out of the statute of frauds, on the ground of part performance of the contract, he must make out by clear and satisfactory proof the existence of the contract as laid in the bill, and the act of part performance must be of the iden

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1 The judgment of the court below was as follows:

“ This cause having been duly calendared and argued and submitted and the proofs read and considered, and it appearing to the court that the provisions of the statute of frauds in respect to contracts for and conveyances of interests in real estate present an insurmountable barrier to granting the relief prayed upon the case as made in the bill and attempted to be made out in proof, it is this 14th of November, A.D. 1887, ordered, adjudged, and decreed that the bill in this cause be dismissed with costs."

The judgment of the appellate court was as follows: “ This cause came on to be heard at this term of the court on appeal by the complainants, John Riggles et als. from the decree passed therein on the 14th day of November, 1887, dismissing the bill with costs, and was argued by counsel for the respective parties and submitted. Upon consideration thereof it is now here, this 18th day of February, A.D. 1890, ad. judged and decreed and is hereby affirmed with costs, to be taxed by the clerk."

Argument for Appellees.

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tical contract set up. It is not enough that the act is evidence of some agreement, but it must be inequivocal and satisfactory evidence of the particular agreement charged in the bill.

In Mundorf v. Kilbourn, 4 Maryland, 459, 462, the court says: “We need not multiply authorities to show that in cases for specific performance the complainant must establish the very contract set up in the bill, and that all acts of part performance relied upon to take the case without operation of the statute of frauds, must be clear and definite, and refer exclusively to the alleged agreement." In Stoddert v. Bowie, 5 Maryland, 18, 35, the court said: “No

5 rule is better established than that every agreement, to merit the interposition of a court of equity in its favor, must be plain, just, reasonable, bona fide, certain in all its parts, mutual, etc. And if any of these ingredients are wanting, courts of equity will not decree a specific performance.” See also Wadsworth v. Manning, 4 Maryland, 59; Waters v. Howard, 8 Gill, 262, 275; Hall v. Hall, 1 Gill, 383 ; Owings v. Baldwin, 8 Gill, 337; Beard v. Linthicum, 1 Maryland Ch. 345; Hopkins v. Roberts, 54 Maryland, 312.

The defendant denies positively any agreement whatever to dispose of the homestead, and there is only uncertain proof that she was aware of such agreement. Those who testify, state that it was talked of loud enough for her to hear it, but concerning her understanding of it they only conjecture.

In the testimony there is no proof of that clear and decisive character which should govern a court, in the exercise of its discretion, to decree a specific performance.

Mr. Justice Grier, in Purcell v. Coleman, 4 Wall. 513, 517, in his opinion, says: “A mere breach of a parol promise will not make a case for the interference of a chancellor. When he requests a court to interfere

he should be held to full, satisfactory, and undubitable proof of the contract and of its terms. Such proof must be clear, definite, and conclusive and must show a contract leaving no jus deliberandi or locus pænitentiæ. It cannot be made by mere hearsay or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witness had

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Opinion of the Court.

no reason to recollect from interest in the subject matter which may have been imperfectly heard or inaccurately remembered, perverted, or altogether fabricated; testimony therefore impossible to be contradicted.

In Williams v. Morris, 95 U. S. 444, even though written receipts were introduced to identify parties to the property, the testimony was not sufficient to prove part performance.

In Bigelow v. Armes, 108 U. S. 10, while there was no written contract, yet the facts were such that left no jus deliberandi, and showed such part performance that took the case out of the operation of the statute. There is, however, a written memorandum in this case which describes the property and states the consideration — signed by the parties to the transaction.

In Beckwith v. Talbot, 95 U. S. 289, the defendant in that action was charged on a memorandum in which his name was not found, but letters were produced in evidence which proved a sufficient ratification of the memorandum to comply with the statute and the court below so held and was sustained by this court.

In Grafton v. Cummings, 99 U. S. 100, even though there are memoranda and writings, yet this court held them defective and not sufficient to take the case from the operation of the statute.

MR. Justice Brown, after stating the case, delivered the opinion of the court.

The sole question is whether the plaintiffs have made out such a case as entitles them under the statute of frauds to a specific performance of the alleged agreement for the sale of the homestead property in square 199, and an equal division of the proceeds.

Thomas Riggles, the ancestor, was possessed of two parcels of land in Washington, viz. : Certain lots in square 199, containing the homestead, worth from six to eight thousand dollars, and a large number of lots in square 179, then unimproved, and worth about forty thousand dollars.

Opinion of the Court.

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The lots in square 199, the homestead, he left to his widow for life, for the benefit of herself and her four children; after her death, to his executors, for the benefit of his four children until the youngest should become of age, and then to his son Thomas, charged with the care and support of the unmarried daughters by his second wife; and in case of the death of Thomas before his sisters, the property was to be sold and the proceeds equally divided among these sisters.

The lots in square 179 were also charged with the maintenance and necessary expenses of his wife and her four children during her life, and after her death, with the support of the children, until the youngest should become of age. The executor was given power to dispose of all of 179 if, in his discretion, it should become necessary to apply the same to such use, and any surplus that should remain was to be divided among testator's children by his first wife, but should such residue remaining from 179 be more than the value of the homestead property, the children by the second wife should receive from such proceeds such portions as to make their shares alike or equal to each other, and the shares of the other children.

Thomas Riggles, Jr., son of the second wife, died December 27, 1883; Catharine Riggles, widow, died November, 1884. Hannah Riggles Erney, by the death of her brother and sisters, is the sole survivor of the children of the second wife, and entitled to the homestead under the will.

Plaintiffs' testimony tended to show that, at a meeting of the widow and all the heirs of the estate in June, 1873, it was agreed that the entire estate should be equally divided among the widow and children; that the lots in square 179 should be immediately sold, and the net proceeds, after payment of incumbrances, taxes, and assessments upon the whole estate, should be divided between the widow and all the children; and that the homestead lots in square 199 should be retained for the use of the widow and her children until her death, or the death or 'marriage of the daughters, when this property should also be sold, and the proceeds divided among all the children. This agreement, so far as it concerned lots in 179,

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