Baynard v. Norris

5 Gill 468 | Md. | 1847

Dorsey, J.,

delivered the opinion of this court.

Believing that the testimony in this cause fully establishes the fact of the mistake made by the commissioners in their return, to the Orphans Court for Baltimore County, of the allotment by them made, under the last will and testament of George Heide deceased, by the assignment of lot C on Franklin lane to Eliza Baynard, instead of lot A on Cheapside street; and in the assignment of lot A on Cheapside street, as part of the dower of Rachel Ileide, with remainder over to Mary Jinn JYorris, instead of lot C on Franklin lane; the inquiry arises, are the defences set up by the answer, according to the proofs in the case, sufficient to prevent a court of equity from rectifying this mistake, and giving to the complainant the relief sought by her bill of complaint?

As a bar to such relief the defendants, Morris and Jones, assert in their answer, that they are bona fide mortgagees, for a valuable consideration, without notice of the claim of the appellant. In answer to this defence, the appellant insists that the allotment made by the commissioners created only an equitable estate in the real property to them respectively allotted, and that to consummate the legal title thereto in the parties to whom it was in severalty, respectively assigned, deeds of conveyance inter se duly executed, acknowledged and recorded, were necessary; and that to a bona fide purchaser of such an interest in realty, no protection is given against a prior equity. That this answer of the appellant would have been a conclusive answer to the defence set up by the appellees, Morris and Jones, could not be denied, if the fact upon which it is based had been true, viz: that by the allotment of the real estate made by the commissioners under the last will and testament of George Ileide, the residuary legatees took nothing more than equitable estates in the portions severally assigned to them. But such was not the effect of the allotment and return thereof made by the commissioners. By it the residuary legatees took legal estates in the portions of the realty, severally, and to them respectively, assigned, under and by virtue of the last will and testament of George Ileide.

At the present day, it cannot be doubted, that a defendant being a bona fide purchaser, &c., can by way of answer as effectually defend himself against a complainant, asserting a prior equitable claim, as he could by interposing the usual plea in bar founded on such a purchase. But to render such a defence available at the trial, the answer must contain an averment of every material fact requisite to sustain such a plea if demurred to. Does the answer of Morris and Jones, contain all such material averments, is, therefore the obvious inquiry to be made in this case? It does sufficiently state some of the facts indispensable to such a plea, to wit: the transfer of the legal title, the mortgage to the defendants, Morris and Jones, the bona, fides of the transaction, and valuable consideration paid ; and the payment of this consideration before they had any notice of the claim of the appellant. But the answer has altogether omitted to state one fact, which is essential to the validity of a plea, that the defendant is a bona fide purchaser, &c. Wherever the estate conveyed is one to which possession is incident, and is not a mere dry remainder or reversion, it is indispensably requisite to the validity of such a plea, that it should state that the grantor or mortgagor was, at the time of the conveyance, seized, or pretended to be seized, and was possessed of the premises conveyed ; as authorities for which, see Equity Draftsman, 449. 3 Sugden Vendors 345-346. Daniels vs. Davison, 16 Ves. 249. Boone vs. Chiles, 10 Peters, 211.

If to the validity of such a plea, the statement as to the possession of the grantor be essential, it is equally necessary, when such a defence is relied on at the final hearing, that a like averment, as to such possession, should be made by the answer; and had such an averment appeared in the answer of the defendants, Morris and Jones, it is conclusively disproved by the testimony in the cause. They cannot therefore protect themselves against the prior equity of the appellant, by the defence relied on in their answer, that they were bona fide purchasers without notice, &c. The defendants, however, must fail in protecting themselves as such bonafide purchasers without notice upon another ground. The fact averred in the answer (and without which the defence cannot for a moment be sustained,) is legally disproved by the testimony in the cause, which demonstrates that not only at the date of the mortgage, but for more than ten years before, the appellant had, through her tenants, been in the undisturbed possession and enjoyment of lot A, conveyed by Jones to Ileide the testator.

In Hardy & Talburt vs. Summers and wife, 10 Gill & Johns. 324, this court have said that the fact of the possession of a parly, whose rights are involved in a purchase, is a sufficient intimation of those rights, to put the purchaser upon an inquiry into their nature; and failing to make it, he is in equity visited with all the consequence of a knowledge of his title.

In Graff, &c. vs. Castleman, &c. 5 Randolph, 207, the Court of Appeals of Virginia say: thus in any purchase, if there be circumstances, which, in the exercise of common reason and prudence ought to put a man upon particular inquiry, he will be presumed to have made that inquiry, and will be charged with notice of every fact, which that inquiry would give him.

In Pendleton vs. Fay, 2 Paige, 202, it was decided that a purchaser, whenever he has sufficient information to put him on inquiry, in equity, is considered as having notice; and in such case he will not be deemed a bona fide purchaser.

For the establishment of so well settled a principle, a reference to further authorities cannot be necessary.

This court will sign a decree, reversing with costs, to the appellant, in both courts, the decree of the county court, passed in this cause, except that part thereof which decrees that the bill be taken pro confesso against the absent defendants, which is affirmed, and will sign the usual order remanding the cause to the county court, that a decree may be passed appointing a trustee to convey lot A to the appellant, her heirs and assigns; and that an account may be taken of the rents and profits received by the appellees, from lot A, and the amount thus found to be due, be decreed to be paid by them to the appellant; and that said lot C may be conveyed by said trustee to the appellees, their heirs and assigns, by way of mortgage, to be held by them, as mortgagees, in the same manner as if it had been a part of the property conveyed to them by the mortgage of Rachel Heide, and William JYorris and Mary Ann, his wife.

DECREE REVERSED IN PART AND CAUSE REMANDED.