John Mundorff, and Mary, his wife, vs. Elbridge G. Kilbourn and Benj. Howard, 4 Md. 459

Tuck, J., delivered the opinion of this court. This is a bill in equity filed by the appellants, seeking the specific performance of a parol agreement relating to land, on the ground of performance by the complainants of their part of the alleged contract. If there were no other objections to the relief sought, we are not satisfied that the evidence in the cause supports the allegations of the bill, and that for this reason the decree should be affirmed.

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 the operation of the statute of frauds, must be clear and definite, and refer exclusively to the alleged agreement. 2 Story’s Eq., secs. 762, 763, 764. Wingate vs. Dail, 2 H. & J., 76. Owings vs. Baldwin, 8 Gill, 337. Shepherd vs. Bevin, 9 Gill, 32.

The bill states in substance, that Stansbury had purchased from Mundorff a negro girl for three hundred dollars; that Mundorff proposed to give up or release to him one hundred thereof, if he would agree to devise to MundorlPs wife in fee-simple, the land mentioned in the proceedings ; that Stansbury assented to this, and paid Mundorff one hundred dollars in cash, and gave his note for one hundred, and took a receipt in full for the purchase money.

It also states that he required an instrument of writing from Stansbury, but that he did not insist upon it, after he was assured by Stansbury that he had already made his will to that effect, and would not alter it; which however he did by afterwards devising to Mrs. Mundorff a life estate only in the land. Howard did not answer the bill, but Kilbourn’s answer puts the complainant to the proof of his case.

The witness relied upon to prove the agreement, who was present at the time, says that Mundorff asked three hundred 'dollars, and that Stansbury said he would give two hundred, one hundred in cash and one hundred in his promissory note, and would give Mrs. Mundorff this land in fee-simple by his will.

After some conversation as to the necessity for having this reduced to writing, and the witness having assured Mundorff that Stansbury had made his will to the effect stated by him, the parties closed the matter by a receipt from Mundorff for two hundred dollars, in full for this servant girl, in which Mundorff released all his right and title, and declares himself to be fully paid, satisfied and contented. What the difficulties were, which, as stated by the witness, the parties had met at his house to close, we are not informed.

Certain it is that it no where appears, that Stansbury agreed to pay three hundred dollars for the servant woman. If the parties were contracting for the woman at that price, it seems strange that a different sum was stated in the receipt, it is said however, that a receipt may be explained, and in this respect differs from other instruments. This is true ; but no attempt is made to explain this one. The witness who prepared it, does not state that it was designed to be other than it is, or that it had any relation to the land, as part of the consideration in the purchase of the negro.

If it had specified three hundred dollars as the purchase money, it might have been shown that the land constituted a part of that consideration. In Shepherd vs. Bevin, 9 Gill, 32, a party was permitted to prove that a receipt for a sum of money as a distributive share, was intended to operate as a payment of so much money for land. But that cannot be done here, because the $200 is shown to have been paid in another way, in money, and what was taken as its equivalent.

There are cases to show that agreements to devise real estate, may be enforced by specific performance against the devisees, if the land be otherwise disposed of by the party making the agreement. But these we think, are to be dealt with no less strictly in equity, than other contracts within the statute of frauds. Indeed there are considerations which should subject them to a more rigid application of the statute. We do not find in this record sufficient proof that Stansbury designed to bind himself by any obligation such as is now sought to be enforced.

A contract imports a mutual agreement of the parties to the same matter. If this alleged contract be decreed to be performed, it must be because Stansbury supposed that he was paying three hundred dollars for the servant, and that Mrs. Mundorff was to have the land at his death, as part of the price. This is by no means clear. It is at least uncertain, whether the parlies designed it for a legal obligation, In Walpole vs.

Orford, 3 Ves., 402, where an attempt was made to set up mutual wills on the footing of a contract, the Lord Chancellor laid it down as a general propo>sition, that all agreements to be executed in equity must be certain and defined ; equal and fair; and proved as the law requires; and that it was enough to doubt upon anyone of these points to refuse relief, and in the case before him, he found great difficulty in determining whether the transaction was meant to be absolutely binding, or should rest upon hon- or. In the present cause Mundorff appears to have been aware, that such agreements should be in writing.

Yet, when Stansbury declined to bind-himself in that way, he remained satisfied with his promise that he would not alter his will, supported by the witness’ assurance of his confidence in Stansbury. If he gave up one-third of what he deemed the value of the woman, in the hope that his wife would in consequence of this favor to her grandfather, become the owner of the land at his death, we do not perceive that any thing more than an obligation of honor was imposed on the testator, out of which no action can arise.

Wills are ambulatory ; they can operate only after the death of the party; and are liable to be changed at any time. Hence the utmost certainty should appear to authorize the court to set aside a solemn testamentary act in the manner proposed. It is almost impossible to conceive, that a man will deprive himself of the power of disposing of his property, whatever circumstances may arise to induce him to change his will, except for some controlling family considerations, and upon evidence free from doubt as to the existence of the agreement, and clear from ambiguity as to its terms.

The most stringent doctrines of the court should be applied in such cases, especially where the alleged agreement is not in waiting, as a protection against speculating arrangements s'ought to be enforced, as contracts, after one of the parties is no longer here to explain the conduct imputed to him, and defend himself against charges of bad faith or fraud. The subject is discussed by Lord Camden, in Dufour vs. Pereira, 1 Dick., 419. See also Izard vs. Middleton, 1 Desauss., 116. Rivers vs. Rivers, 3 Desauss., 195.

We think that to grant relief on the present record, would be carrying the exceptions farther than the decided cases warrant, and against the manifest policy of the statute of frauds. Entertaining these views we need express no opinion on the questions of performance, and notice to the defendants of the equity set lip in the bill of complaint. Decree affirmed with costs.