67 Md. 359 | Md. | 1887
delivered the opinion of the Court.
This appeal is from a decree of the Circuit Court for Garrett County, setting aside a certain deed made by the appellant, Biddinger and his daughter, to appellant Bowser, as in fraud of creditors. The bill charges thatSimeon Biddinger, being indebted to this complainant, and intending to defraud him, and his .other creditors, having purchased a tract of land, and having fully paid for the same, caused Jacob Hare and wife,, his vendors, to convey the same to Florissa, an infant daughter of Simeon Biddinger the purchaser, which conveyance was made on the 26th of May, 1816. This deed to the infant, Florissa Biddinger, who had no means and paid no part of the purchase money, the bill charges must be treated as in trust for the creditors of Simeon Biddinger (the father) who paid the purchase money, and is alleged to be insolvent apart from that land. Subsequently, and in further execution of his fraudulent purpose to defraud the complainant and others, it is alleged that Simeon Biddinger caused his daughter to unite with him in a deed for the property to one James Bowser for a simulated consideration ; that the same was made pending a suit against Simeon Biddinger. for the complainant’s claim against him, but before judg
The answer of the adult defendants, Biddinger and Bowser, which, is joint, denies the fraud and insolvency of Biddinger and his, indebtedness to the complainant; but it admits the infancy of Florissa Biddinger, and the payment of all the purchase money by her father Simeon Biddinger, and that Florissa had no means of her own. It avers the consideration named in Bowser’s deed to have been paid bona fide. The infant’s answer, by guardian, does not admit allegations, and sxxbmits her rights-to the Court’s protection.
The proof shows conclusively the purchase by Simeon Biddinger for seven hundred and fifty dollars, which he paid, and that he caused the land to be conveyed to his daughter, Florissa, then only seven or eight years old. It shows that he had the double purpose of cheating the complainant out of his claim against him, and of depriving his wife, from whom he was living apart, of dower in the land. Notwithstanding this purpose, it is contended that the defendant Bowser, took as a purchaser without notice of the fraud, and is not affected by it. This contention the proof does not sustain. Bowser was the half brother of Biddinger. Florissa, his niece, lived with him. He knew the deed was made to her, and that she was "a mei’e child and wholly without means; and that when she joined in the deed to him she was not more than ten yeai'S old. He knew the character of the complainant’s claim against Biddinger, his brother. He knew it was in suit, although judgment was not recovered till after conveyance to him. In addition to all this, Josiah Biddinger testifies that on application to rent the place, he sail! he couldn’t do it, andón being pressed and asked if the conveyance to him “was not a sham?” said “it was
To our apprehension the proof establishes a bold case of fraud on the part of both Biddinger and Bowser. So far as the child, Florissa, is concerned, she was too young to be •supposed to have any knowledge of the object or purpose in the matter; and the Court very properly treated her ■as an involuntary trustee for her father and his creditors, •and appointed another in her stead.
Bowser contends that he paid for the land bona fide with indebtedness of his brother to him. He so testifies, and though his testimony is not clear and satisfactory on that point, for the purposes of the case it may be conceded that he did so pay for it. Still having, as we think, knowledge of the character of the transaction and the cause of the deed to Florissa ; or if not actual knowledge, enough to put him on inquiry, he is affected with notice of the fraud •and its consequences. All that' was necessary to make him take subject to the fraud was sufficient knowledge of the suspicious circumstances to put him on inquiry. Glenn vs. Grover, 3 Md. Ch. Dec., 29; Abrams & Cochran vs. Sheehan, 40 Md., 447; Baker vs. Bliss, 39 N. Y., 70.
Florissa Biddinger was made a party defendant and was “summoned” regularly by subpoena. A commission to assign a guardian and take her answer was issued, and was returned unexecuted, because the child could not be seen, though she was living with the defendant, Bowser. A second commission was issued and returned, with like result. Meanwhile, and before the Court, by order under the new rules, appointed a guardian to answer and defend, the case being at issue as to the adult parties, testimony was taken, which, as we have said, fully establishes the .fraud. After that testimony was taken and re
. The decree makes no allusion to the deed from Hare and wife to Florissa Biddinger, hut simpljr sets aside the deed from Florissa and her father to Bowser, and orders a sale of the property, and appoints a trustee for the purpose. In doing so, it adopted the theory of the bill, as stated in the Court’s opinion, that under the circumstances, Florissa must be regarded as taking in trust for her father and his creditors, and another trustee has been substituted for her. That decree will be affirmed.
Decree affirmed, and cause remanded.