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HAINES VS. HAINES. 133 BENJAMIN F. HAINES AND OTHERS vs. DECEMBER TERM, 1853. MORDECAI HAINES AND OTHERS. [PARTITION OF REAL ESTATE—SPECIFIC PERFORMAMCE.] IN a proceeding for the partition of the real estate of an intestate, two of his children, to whom he had in his lifetime given certain portions of his estate, and of which they had taken possession, and made expensive improvements thereon, under the promise or agreement of their father that the property should be theirs, were made defendants, and they insisted that the land so claimed and possessed by them was not liable to partition. HELD— That under the case as presented, the parties claiming the lands being defend- ants, and not asking the active interposition of the court in their favor, parti- tion of these lands should not be decreed. A much weaker case will constitute a good defence than would be required if the parties were complainants, asking the active interposition of the court in their favor; they are not bound to make out a case which would entitle them to the specific performance of the agreement set up in their answers. To constitute a valuable consideration, it is not necessary that money should be paid; if it be expended on the property on the faith of the contract, it constitutes a valuable consideration. Money expended in the improvement of land on the faith of the contract con- stitutes a consideration on which to ground a claim for specific performance. A court of equity will not decree the specific performance of a mere volunta- ry agreement. (The facts of this case are sufficiently stated in the following opinion of the Chancellor, which was delivered on the 22d of February, 1854.] THE CHANCELLOR: This is a bill filed by the complainants in February, 1849, for a partition of the real estate whereof Nathan Haines died seized in the year 1848. Although the deceased executed a will, as stated in some of the answers, it was not attested so as to pass real estate, and as to that, therefore, he died intestate, and the question pre- sented by the proceedings, and to which the argument made II* |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 4, Page 133 View pdf image (33K) |
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