1 Gill 412 | Md. | 1843
delivered the opinion of this court.
The bill in the present case has been filed to vacate a deed of mortgage given by Brecht and Uhthoff to Albers and Runge, on the 2nd day of December, 1839, to obtain an account and payment for the goods and promissory notes delivered over to
The deed in controversy is alleged to be void as in violation of the insolvent laws, to be condemned at common law, and inoperative under the act of Assembly of 1825, ch. 50, entitled “An act to limit the operation and effect of mortgages.”
There can be no pretence for considering the deed void by the insolvent laws existing anterior to the law of 1834, ch. 293, because, in our view, the evidence, taken in connexion with the answers, it is, by no means, satisfactory that the mortgagors, at the time of executing the deed, contemplated taking the benefit of the insolvent laws. The deed could not, therefore, be condemned as made with a view, or under an expectation, of being or becoming insolvent debtors, and with intent thereby of giving an undue and improper preference. Nor could it be set aside, within the meaning of those laws, since the decision of this court in the case of Crawford & Selman vs. Taylor, being made at the request of the mortgagees.
It is, however, contended that the deed is void as being made in contravention of the act of 1834, ch. 293, which, so far as regards the present question, appears to be a local law, confined to the city and county of Baltimore. This law provides that although the transfer shall be made upon request, yet, if the bargainor, at the time of conveyance, had no reasonable ground for believing that he would be exempt from execution or liability for his debts, without applying for the benefit of the insolvent laws, such conveyance should be considered as made with a view or under an expectation of being or becoming an insolvent debtor, and with intent thereby to give an undue and improper preference, provided the creditor obtaining the conveyance should appear not to have had notice of the condition of insolvency of such debtor.
Without stopping to enquire whether the debtors in this case had any reasonable exp#ctation of exemption from lia.
The next subject submitted for enquiry is the validity of this deed at common law. Its invalidity on the mere ground of preference, cannot, upon legal principles, be urged, for a debtor has a right to prefer one creditor to another by the common law, and independent of our statutes, in relation to insolvent debtors.
The consideration proved, if the proof be admissible, establishes clearly a good and valid consideration to support the deed. The evidence dehors the deed is that the deed of mortgage was made to secure advances made, and to be
In the case now before us the admissibility of the evidence would produce no such result. The bill admits, and it is fully proved, that a monied consideration existed for the deed. Advances had been made to the mortgagors, though not to the extent mentioned in the deed ; so that the instrument would, in contemplation of law, be a deed of bargain and sale, standing on the consideration proved in the same way as it would be if standing on the consideration expressed in the deed. In the case of Belts and the Union Bank, the evidence could not be received, because by the disproof of the consideration expressed, the deed had been rendered inoperative and void, and parol evidence of a different consideration could not be received to set up the deed thus impeached. But here the deed is not impeached or rendered inoperative and void, by the evidence offered, but the evidence is adduced to rebut any idea of fraud, by showing, not a different consideration, but the same kind of consideration, differing only in amount, and the circumstances under which it assumed this shape. And this, it will be per' ceived, was the view of the case of Betts and the Union Bank, taken by this court, in 9 Gill & John. 91, and 10 G. & J. 248
The views which we have above taken, disposes of the various questions raised in the case, and concurring with the Chancellor in his judgment, we affirm his decree.
DECREE AFFIRMED,