A bill of complaint was brought to compel the successful bidder at an auction to perform his contract to buy a new bungalow. The defense was that the ground rent said to be on the property did not exist but was to be created, and the term of the proposed lease was not stated. The chancellor dismissed the bill and ordered the return to the buyer, Paul Brothers, of the deposit which he had made at the sale. The seller, Globe Home Improvement Co., Inc., has appealed.
The published advertisement of sale described the property as a very desirable new bungalow to be sold on the premises, 3903 Duvall Ave., at the risk and expense of a former purchaser, and then said this: "G.R. $120.00... Taxes, interest, G.R. and all other adjustment to be adjusted as to date of sale." The advertisement was signed by the attorney for the seller and gave the name of the auctioneer.
Brothers had been advised of the sale by the attorney who represented Globe and who had also represented him at times. At the sale, he purchased the property for $15,500.00 and was permitted to make a deposit of $1,000.00, instead of the $1,500.00 required by the terms of the advertisement. The auctioneer gave Brothers a receipt, on which was noted that $1,000.00 has been received: "... as deposit on purchase of property 3903 Duvall Ave., for the price of $15,500. Subject to an annual ground rent of $120, at public auction on May 19, 1952. By order of _______________________ (Auctioneer) ALEX COOPER". A copy of the advertisement was attached to this receipt and the two writings together constitute the contract relied on by Globe.
About a week after the auction, Brothers was asked by Globe's attorney to sign the papers necessary to create the $120.00 ground rent. He says that this was the first time he knew that the ground rent did not exist and was to be created. He refused to go through with his purchase because the ground rent was to be newly created.
Globe recognizes the rule that a contract of sale of real estate must be clear, definite, complete and certain if a court of equity is to specifically enforce it. It says that the writings in the instant case meet these standards, even though the term of the proposed lease is not specified, because Brothers knew that the ground rent was to be created, and as a real estate man and insurance broker, must be presumed to know that ground rents commonly are for a term of ninety-nine years. Globe's attorney, who had interested the appellee in the purchase of the property, testified that Brothers had been told that the ground rent was to be created at the time of settlement. Brothers denied flatly that he had ever been so told, and reiterated that his first knowledge that the rent was not in existence was when he was asked to sign the papers necessary to create it. The chancellor gave no opinion so that there is nothing to indicate how, if at all, he resolved this conflict in the testimony. It is not necessary to decide whether, had the facts justified it, oral testimony properly could have been admitted: "... not to vary the contract nor to alter it in any way, nor to add anything to it." but to explain something otherwise doubtful which could be made plain by proof of usage or custom, as suggested
The appellant seeks to avoid the effect of the doctrine of Moran v. Hammersla by reliance on the decision in Kalis v. Shor, 193 Md. 643. There the purchaser at an auction sale attempted to defeat a suit for specific performance on the basis that the description of the property stated that it was subject to a "ground rent of $68.00", without stating whether the rent was redeemable or irredeemable. The Court held that the purchaser should have expected the worst, namely, that the rent was irredeemable, and therefore had no just cause for complaint. Moran v. Hammersla, supra, and Barranco v. Kostens, 189 Md. 94, were distinguished on the ground that in those cases the rents: "... held too indefinite to be enforced, were to be created, and were not already on the property as in the instant case." A ground rent already in existence is a matter of record and if referred to in the contract its description on record makes capable
Far from being over-ruled by Kalis v. Shor, as the appellant suggests, Moran v. Hammersla only recently was relied on by this Court in Beck v. Bernstein, 198 Md. 244. The Hammersla case, and the cases which it followed, make it plain that the Court's action in dismissing the bill and requiring the return of the deposit was correct.
Decree affirmed, with costs.