62 Md. 100 | Md. | 1884
Lead Opinion
delivered the opinion of the Court.
In this case the deed by the husband to the wife, of all his real estate, was made in September, 1868, for the recited consideration of eight thousand dollars. It was made after suit had been brought by the complainants now seeking to have the' deed declared void as against themselves, and but a short time before they recovered' judgments against the grantor. The deed is sought to be .sustained as against these creditors by proof, by the husband and wife alone, that so far back as the years 1844, 1845, and 1846, and upon several occasions subsequently,, the husband had received several sums of money of the wife which he had promised, at the time of receiving the same, to repay to the wife ; hut not having paid the same, when finding himself pressed by his creditors, and, as he says, importuned hy his wife, he summed up the various-amounts received from the latter, with interest, which amounted to near about as much as the principal, and made that the consideration of the deed.
They further aver, that since the execution of the deed, the husband has been living upon the land conveyed, together with his wife, using and cultivating the same, as her agent, and for her use and benefit, and that the proceeds therefrom have been applied, with the consent of the wife, to the support of herself and family.
As was very justly said hy the Supreme Court of the United States, in Seitz vs. Mitchell, 94 U. S., 582, and repeated by this Court in the case of Hinkle vs. Wilson, 58 Md., 292, “ purchases of either real or personal property made by the wife of an insolvent debtor during coverture are justly regarded with suspicion, unless it clearly appears that the consideration was paid out of her separate estate. Such is the community of interest between husband and wife; such purchases are so often made a cover for a debtor’s property; are so frequently resoi ted to for the purpose of withdrawing his property from the reach of his creditors and preserving it for his own use, and they hold forth such temptations for fraud, that they require close scrutiny. In a contest between the creditors of the husband and the wife there is, and
In this case, the rights of the parties, and the validity of the transactions involved, depend upon the law as it stood before the adoption of the Code in 1860.
By the common law, before it was modified hy the adoption of the Code, as between husband and wife, the personal property of the latter, such as money,- goods and chattels, became vested immediately and absolutely in the husband, and he could dispose of it as he pleased. Co. Litt., 351, b; 2 Kent Com., 143. And if a debtor of the married woman paid to her during coverture the debt, or if money was given to her by any third person, unless it was expressed to he to her sole and separate use, the money so received enured to the benefit of the husband, and became his property absolutely. And so the husband was entitled absolutely to all sums of money received hy a third person on account of his wife during coverture. These principles are among the elementary doctrines of the common law; and they have been adopted and applied hy repeated decisions of this Court. Turton vs. Turton, 6 Md., 375, 381; Taggart vs. Boldin & Thayer, 10 Md., 104.
If, therefore, it he conceded, as it may well he, upon the proof in the case, that the money came to the wife and was received or paid over to the husband, as and in the manner stated in the answer, and as testified to by the wife, still there is nothing to show that it came to the wife as her sole and separate estate, and consequently it
It would, doubtless, have been competent to the husband to settle the money upon the wife, to her sole and separate use, by gift; but, as has been said by this Court, “the act by which he divests himself of his property must be clear and unequivocal’’ (Turton vs. Turton, supra); or, as was said by the late Chancellor Johnson, to establish such gift from the husband to wife, Courtsofequity require clear and incontrovertible evidence. George vs. Spencer, 2 Md. Ch. Dec., 353, 360. The marital rights of the husband having attached, the mere promises of the husband to the wife to repay her the various sums of money received by him were without consideration, and could form no ground for a valid claim against him. Oswald vs. Hoover, 42 Md., 368; Plummer and Wife vs. Jarman, 44 Md., 637; Sabel vs. Slingluff, 52 Md., 132, 135. Such promises amounted to nothing more than mere voluntary agreements to make future donations to the wife by the return of like sums of money. Being without consideration, they could not be enforced; for a mere promise to make a voluntary gift is not sufficient. To make the intended gift effectual, the intention must have been executed; and the evidence should show clearly and distinctly that the husband had, by positive act, divested himself of his right of property and vested the same in the wife.
This case is entirely unlike those cases where the husband contracts with his wife in respect to her separate estate, or where the fund, in respect to which the promise
The case of Stevenson vs. Reigart, 1 Gill, 1, is much relied upon by the defendants; but that case is not an authority in a case like the present. In that case certain executors’ held the legacy, a chose in action, due the wife,, as her trustees, and they paid over such legacy to the husband upon a special agreement with them, that the money should be invested for the exclusive benefit of the wife. It was upon the validity of this agreement with the trustees that the case turned. The Court declared that the husband received the money from the trustees, on the agreement, not by virtue of his marital rights, but as trustee for his wife. He received the money, say the Court, upon a special trust and confidence, that it would be invested for her benefit; he received it as her trustee ; and upon his failure to make that investment, the consideration upon which he received it failed, and the wife had a right to consider it as so much money had and received for her use. That case, therefore, has but slight, if any, the remotest, bearing upon this case.
Mr. and Mrs. Bayne were both examined and re-examined as witnesses, and their several statements are not in all respects consistent as to the circumstances under which the money was obtained by Mr. Bayne. Their respective statements in regard to the making and delivery of the deed, are essentially variant. And though this may be attributed to the imperfection of memory, yet it shows the great necessity for caution, and the danger in proceeding upon such evidence after such great lapse of time. Mrs. Bayne, upon her first examination, in speaking of the deed and the consideration therein expressed, says:
“The money and interest that Mr. Bayne received from her is the amount of the consideration mentioned in the deed, she thinks. She cannot give the dates; the amount was $4,300; that was the principal. The year they were married in, Mr. Bayne got from her $1,000, and then he got $1,500 soon after they were married. She cannot fix
Mr. Bayne, in his examination, states the circumstances of the loans, and the making of the deed, thus:
“ She loaned witness the money, and when it was loaned she peremptorily told him that she expected him to return that money. When he gave her the deed she had all the dates; the amount she loaned was $4,300, which, with interest up to that time, amounted to $8,000. The money was loaned at his house on the ‘ Apple Grove ’ farm, at different times. Mr. Robert W. Hunter, Sr., at one time gave her a family of negroes; the negroes were sold in Texas and the money remitted to her; witness got the draft cashed. The negroes sold for $2,100 or $2,200, but she got only $1,500 of it, which was a part of the money loaned to him. He can’t state the time, but it was after 1844 or 1845. A short time after their marriage she loaned him $1,000, which she had gotten from her father. She had a memorandum of this at the time the deed was executed, which was destroyed after the execution of the deed. At another time he got from her $1,200, not long after the death of Mr. Hunter, in 1858 or 1859, and then $600; all of which sums came from her father’s estate.
How adopting either of these statements as true, or both of them, the money is not shown to have been the separate estate of the wife, or that such circumstances existed as would have entitled her to a settlement of it; but, on the contrary, that it belonged to the husband by virtue of his marital relation. According to established legal principles, as we have seen, the money became the property of the husband immediately upon its receipt by the wife, as the law stood at the time. His promises to return it to the wife were nothing more than promises to restore money to her possession which the law had vested in him as his own absolute property; and such promises created no legal obligations that could be enforced against the husband. At most only the money coming to the wife after the Act of 1858, ch. 245, could be protected from the debts of the husband.
Upon the whole, this deed, so manifestly in prejudice of the rights of the complaining creditors, ought not to stand as against them. The deed is perfectly good as between the husband and wife, but not as against the subsisting creditors of the husband at the time the deed was made. The decree of the Court below is as favorable to the wife as she could reasonably ask it to be ; and but for a technical objection taken to the frame of the bill, we should simply affirm the decree. But the bill is erroneously filed in the name of the State as legal plaintiff, for the use of the parties beneficially entitled to the judgments; thus following the form of the recovery at law upon the bond. This is clearly an irregularity, as the State should not have been introduced as a party; but it is such an irregularity as may be corrected by amendment. We shall
Cause remanded under Art. 5, sec. 28, of the Code.
Dissenting Opinion
delivered the following dissenting opinion:
As I am constrained to dissent from the conclusions reached by the majority of the Judges who sat in this cause, I deem it incumbent on me to assign the reasons which render my concurrence in their opinion impossible. In so' doing it becomes necessary to enter fully into a consideration of the questions as I find them presented by the record, and elucidated by the able arguments of counsel.
The two appeals, which this record presents, are from a -decree of the Circuit Court for Prince George’s County; the respondents in the Court below invoking an exercise of the revisory powers of this Court, on the ground of •error in said decree, in declaring null and void a deed from the respondent, Wm. B. Bayne, to his wife, Elizabeth Bayne, the other respondent; and the complainant, Edelen, objecting to the allowance to the said Elizabeth Bayne of certain sums of money, to he derived from the prospective sale of the property affected by the operation •of. the decree, prior to the payment of the debts due to the creditors of the said Wm. B. Bayne, which were subsisting claims against him at the time of the execution of the deed. An inspection of the record does not reveal the existence of any creditors at the present period except the complainant, Edelen; and the validity of the -deed is the main and important question involved in controversy. If the transactions between the respondents,
The facts apparent from the record are neither numerous- nor involved in the complication and obscurity produced by the adduction of antagonistic and contradictory testimony. With the exception of the complainant, himself, who merely proved that his claim had never been liquidated, the only witnesses produced for the purpose of proving the absence of honest intent in the execution of the deed, were the grantor and the grantee named in the instrument, and who are the respondents in these proceedings. The complainant makes his adversaries in the cause his own witnesses, and relies solely on their testimony for an impeachment of the validity of the conveyance made by the one to the other. The testimony of these witnesses is consistent in relation to the main fact, which is the loan by the wife to the husband, of various sums of money on his express promise of repayment; and any slight discrepancies in regard to minor points, while relating transactions extending through a period of many years, are certainly not suggestive of collusion between the witnesses, and might therefore tend rather to strengthen than to weaken their credibility. In the record there is no proof to contradict them, and as there can be no recognition, as evidence, of any fact, suggestion or suspicion derived from sources dehors the record, their testimony is all the proof before the Court in relation to the execution of the deed.
The evidence in this cause discloses the fact that, on the twenty-first day of August, eighteen hundred * and fifty-five, oneTownley A. Monroe, as guardian of Wm. Z. Edelen,
Anterior to the institution of the suits on the bond, as is apparent from the dates of the docket entries, Wm. B. Bayne, having no other means of refunding the sums of money loaned as aforesaid, on the seventh day of September, eighteen hundred and sixty-eight, put upon record a deed conveying to his wife his real estate situate in Prince George’s County. The estimated value of this property at the time of the execution of the conveyance was between seven and eight thousand dollars; but the proof shows that there has been a .subsequent depreciation, and that it is not now worth more than four or five thousand dollars. In her testimony Mrs. Bayne says she was not present at the execution of the deed, and although Bayne, himself, says he delivered it to her, his subsequent statement seems to leave room for the inference that he left
“And for this it must be known that delivery is either actual; that is, by doing something and saying nothing; or else verbal; that is, by saying something and doing nothing, or it may be by both. And a deed may be delivered by the party himself that doth make it, or by any other by his appointment or authority precedent, or assent or agreement subsequent; for omnis ratihabitio mandato aequiparatur.”
In the case of Barry vs. Hoffman, 6 Md., 87, the Court said ; “The law does not prescribe any mode of delivery. It may be by word or by deed.” And in 40 Md., 97, it is decided that, “no particular form of procedure is necessary to effect a delivery; it may be by words or acts, or by both combined; but in all cases the intention that it shall be a delivery must exist.”
In an earlier case, where a bill of sale was left with the clerk for record, this seeming to be the only proof of delivery, an attempt was made in argument to demonstrate its insufficiency, but the Court said: “ The delivery may be either actual or verbal, and it is sufficient if there be an intention or assent of the mind, on the part of the grantor to treat the deed as his. The instrument in this case was duly acknowledged and recorded, and whether the law requires these formalities or not to make this a valid deed, they are, nevertheless, sufficient to warrant the presumption of a legal delivery by the grantor. The clerk, after
The registration of-a deed seems to be operatively tantamount to the more ancient and ceremonious mode of transfer by livery of seisin, an open and notorious act intended to indelibly record the fact of investiture on what has been figuratively termed the tablet of the memory. The registration is open to the inspection of the whole world, and thus becomes an adequate substitution for the impressions record'ed-in-the memories of witnesses by livery of seisin, which was formerly the mode of delivery by the feoffor to the feoffee. There can therefore be no doubt that the registration of a deed operates as an actual delivery, if the grantee is subsequently found holding it in his possession and relying upon it as his muniment of title.
The registration of the deed being equivalent to an actual and manual delivery, a title was transferred to the grantee, good and sufficient in legal contemplation, unless impeachable on the ground of fraud. The grantee has acquired a seisin in the land, and an important and valuable right which cannot be taken from her in the absence of proof tending to characterize the transaction as fraudulent in its inception and consummation. When-relief is invoked by a bill in equity it can only be granted secundum allegata et secundum probata. In other words, the allegata and the probata must correspond, and the probata must have reference to the allegata. As observed by Chief Justice Marshall, in Carneal, et al. vs. Banks, 10 Wheaton, 189, “The maxim that a decree must be sustained by the allegations of the parties, as well as by the proof in the cause, is too well established to be disregarded.”
And in Foster vs. Hall, 12 Pick., 99, Chief Justice Shaw said, “ The fact to be proved was that the conveyance was with a fraudulent intent to delay or defeat the creditors of the grantor, by preventing them from securing their debts by attachment, in which case as against such creditors, the conveyance would be inoperative and void. But the law does not put .this construction upon the conveyance, unless there was a fraudulent intent in both parties, nor can the estate of the grantee be defeated, by showing a fraudulent purpose in the grantor, unless it be shown that the grantee participated in it, and by his concurrence promoted it. The proposition to be established then, by the attaching creditor who seeks to vacate a prior conveyance on the ground of fraud is, that the grantor made his conveyance with the intent and for the purpose of defrauding his creditor, by a pretended and colorable sale, or by a sale without consideration, or upon a secret trust contrary to good faith, and that the grantee knew of this intent and purpose, and participated in it. These propositions are in some measure independent of each other, inasmuch as there may be a fraudulent intent on the part of the grantor, but not known to the grantee, though proof of both must concur, to make out a case for the creditor.”
In order to affect the interest of the grantee and annul her title to the estate, on the ground of fraud, it is necessary, in conformity with the principle established, that the evidence should disclose her knowledge of his covino us intent. There is no such averment distinctly made in the hill of complainant, and the evidence shows that the grantee was ignorant of the existence of any creditors of the grantor at the time of the execution of the deed of conveyance.
Although a fraudulent intent on the part of the grantee has neither been alleged nor proved, yet it is contended that there was no consideration sufficient to support a deed interposed as an obstacle to creditors who are making efforts to obtain satisfaction of their claims from the estate •of the debtor. Undoubtedly no debtor can he allowed to make a gratuitous transfer of his property, for the purpose of withdrawing it from the claims of his creditors, even though the recipient of his bounty were ignorant of his fraudulent intent. A transfer without consideration would not he valid even against himself, unless made with a view to provide for his wife; and not even then as against
It is not now, however, a mooted question in Maryland,, that there may be a subsisting relation of debtor and creditor between husband and wife, and that a contract, for the transfer of property by the former to the latter,, for a bona fide and valuable consideration, will he enforced in a Court of equity. Stockett vs. Holliday, 9 Md., 480 Jones vs. Jones, 18 Md., 464.
That a wife may he made a preferred creditor by her husband, is a question which the decisions of this Court-no longer leave open for controversy. Crane and Sons vs. Barkdoll, et al., 59 Md., 534. In Mayfield, et al. vs. Kilgour, et al., 31 Md., 244, it is said “that the wife may become a creditor of the husband; and when the relation of debtor and creditor is established between them, her rights will he regarded by the law with as much favor as those of other-creditors. Inasmuch, therefore, as the complainants have offered no evidence to assail the verity of the consideration, we are to regard the wife as a creditor of the husband, whom he had a right to prefer; and the deed made-by him for her benefit must he sustained.”
In the hill of complaint filed in this cause, it is alleged that the deed of conveyance, thus assailed, .was founded on “ a pretended, or if not on a pretended, then on a past consideration.” The only construction, applicable to the expression “past consideration” in this averment, is that, the conveyance of the property was intended to operate as the extinguishment of a pre-existing debt. This averment is undoubtedly sustained by the proof disclosed by the record ; and not only is not controverted by the respondents, hut is conceded to he true in their answer* In fact, the substance of this averment forms the sole
This question has also been determined by recent adjudication in Maryland. In the case of Busey vs. Reese, 38 Md., 270, Chief Judge Bartol, in delivering the opinion of the Court, after referring to Sioift vs. Tyson, said •“ To entitle the deed first recorded to be preferred, nothing more is required than that it shall be made bona fide, and upon a good and valuable consideration. If taken in payment and satisfaction of a pre-existing debt, it is for a good and valuable consideration within the meaning of the Code.”
It has not been contended in the argument of this cause, that the sums loaned by the wife to her husband, at a period subsequent to the death of her father, in the year eighteen hundred and fifty-eight, did not constitute an indebtedness on his part which he was under a legal obligation to pay to her as his creditor. But it has been urged in argument, that the sums which he obtained from her anterior to the introduction into this State of legislation, having for its object the protection of the
The other Justices concurred, and Buller added: “I shall give my opinion singly on this point: Whether an obligation in justice, equity and conscience, to pay a sum of money, be, or be not, a sufficient consideration in point of law, to support a promise to pay that sum ? If such a question were stripped of all authorities, it would be resolved by inquiring whether law were a rule of justice, or whether it were something that acts in direct contradiction to justice, conscience and equity. But the matter has been repeatedly decided. I agree with my lord, that the rule laid down at the bar, as to what is or is not a good consideration, is much too narrow. The true rule is, that wherever a defendant is under a moral obligation, or is
The principle enunciated by the Court of King’s Bench was recognized and enforced to its fullest extent in the case of State, use of Stevenson vs. Reigart, 1 Gill, 26, which was an action at law. Certain legacies had been left to the wife and were in the hands of the executors. These sums were demanded by the husband ' and paid to him on the faith of his promise to invest them for her benefit. This he neglected to do, and after his decease, an action was instituted to recover the amount thus obtained by the husband from his administrator. In that case, the Court was asked to instruct the jury that no agreement made by the husband with the wife, or with any person for her, with respect to money that belonged to her in her own right, before and at the time of said marriage, upon which the marital rights of the husband attached by said marriage, was binding upon the husband, and that if the promise was made by the husband in ignorance of his marital rights it was devoid of legal obligation and could not be enforced.
The Court of original jurisdiction refused to grant these instructions, and the Court of Appeals affirmed its ruling. After referring to the case of Hawhes vs. Saunders, and citing other authorities the Court said: “ These last cases, it is true, were cases in equity, and there were no creditors to contend with, but they show that, as between husband and wife, the relation of debtor and creditor may exist.” Referring then to the alleged ignorance of his marital rights on the part of the husband it was further remarked that, “ The agreement having.been entered into by the husband with a full knowledge of all the facts, without fraud or surprise, and being founded on a valid consideration, cannot be otherwise than obligatory. We do not think that the husband can shelter himself under a mistake of law; he not only appears to have taken legal ad
The authority of State, use of Stevenson vs. Reigart is referred to with approval in Drury & Wife vs. Briscoe and Randall, 42 Md., 162.
The authorities, which might he referred to, in support of the principles applicable to the case presented by this record, are numerous, hut a very recent decision of this Court in the case of Crane and Sons vs. Barkdoll, et al., 59 Md., 534, has rendered a multiplication of citations wholly unnecessary. It is only necessary to refer to the exposition of principles presented by the Judge to whom the duty of preparing the opinion was assigned. He says:
“A wife may become a creditor of.the husband, and this provision of the Code (Art. 45, sec. 1,) was never intended to prohibit him from paying, or devoting his property to the payment of, a debt due to her. If she is, in fact, such creditor, the law regards her rights with as much favor as those of other creditors. He'may prefer her in a deed of trust for the benefit of creditors, or he may convey property to her absolutely in consideration and discharge of such debt, in the same way he could in reference to a debt due by him to any other party. These propositions have been so frequently announced and settled by the decisions of this Court that they can no longer he the subject of controversy or doubt.”
After the citation of a number of authorities, a statement of the facts of the case is presented in a very lucid arrangement. Three several sums of money, derived from her father’s estate, were paid to the wife in the years 1854, 1855, and 1856. These sums, as received, were loaned by the wife to the husband upon his express promise made at the time, that he would repay the same,
Perhaps no two cases are to he found precisely similar in all respectsbut in the case now under consideration and in that reported in 59 Md. the distinctive marks of dissimilarity are so slight as to be barely perceptible. In the latter case there were three loans in three successive years, commencing in 1854 and ending in 1856. In the former there were five or six loans, comméncing in 1844 and ending in 1868 ; the year in which the deed was executed. In each case the wife loaned the money to her husband on his express promise to repay. Barkdoll gave his wife promissory notes, and Bayne memoranda in writing. In each case the husband repaid his wife by making her a preferred creditor, and by a conveyance of his real estate. Neither Bayne nor his wife were voluntary witnesses. They were compelled to testify by their adversary' in the cause, who thus sought to impeach the validity of the deed. Their testimony proved that the deed was given in payment of a pre-existing debt due from the husband to the wife. In the record there is no proof to contradict them; and as there can be no recognition as evidence of any iact or suggestion dehors the record, their testimony in support of the deed is all the proof before this Court. In the other case the parties interested in maintaining the deed were voluntary witnesses in support of its validity. The Judge who delivered the opinion of the Court in that case, said:
“ It is true that while the law has made these parties competent witnesses, they' are all more or less interested in sustaining the deed, and in the result of this suit, and
I am constrained to believe that the questions presented by this record have already been settled by adjudication, and that the sums borrowed by Bayne from his wife on an express promise to repay, constituted a debt which he was under a legal obligation to liquidate, and that this antecedent indebtedness was a valid consideration for the deed of conveyance which was subsequently executed, and which the complainant now seeks to annul on the ground that it originated in a covinous design to hinder and delay the creditors of the grantor.
This deed was executed and put upon record more than fifteen years ago, and was open to the inspection of the whole world during a period of twelve years before an attempt was made to impeach its validity by the institution of these proceedings. The Supreme Court of the United States in the case of Hayward vs. National Bank, 6 Otto, 617, has said that—
“Courts of equity often treat a lapse of time, less than that prescribed by the Statute of Limitations, as a presumptive bar, on the ground of ‘ discouraging stale claims, or gross laches, or unexplained acquiescence in the asser
During the lapse of the many years, while the creditor, fully cognizant of the existence of this deed, remained inactive, the property which at first was hardly adequate to the repayment of the sums loaned, with the interest included, has so depreciated in value, that the proof indicates a doubt that a sum equal to the principal could, at the present period, be obtained by its sale at auction. That the grantee named in the deed was a creditor of the grantor is apparent from the proof; and that the husband had a legal right to make his wife a preferred creditor is a question removed from the scope of controversy by the authorities cited. I think, therefore, that the decree of the Circuit Court should be reversed, as that Court was clearly in error in undertaking to disturb and extinguish the vested rights of the wife, by a decree authorizing and directing a sale of the property, on the assumption that the conveyance made for the' purpose of liquidating a pre-existing debt, was executed with a fraudulent intent to hinder and delay creditors in the collection of their claims.