Cooke v. Cooke, 29 Md. 538

Cooke v. Cooke

29 Md. 538 | Md. | 1868

Grasón, J.,

delivered the opinion of the court.

In a proceeding in the Orphans’ Court of Baltimore City, between the parties to this cause, four issues were framed and sent to the Superior Court of Baltimore City for trial; the first and second of which involved the inquiry, whether assets of Daniel Cooke had come into the possession of the defendant, the appellee in this cause, and if so, to what amount? and the third and'fourth,'whether the instrument of writing, marked *550J. C., and filed with the appellant’s petition in the Orphans’ Court, was intended, by the parties thereto, to operate as a mortgage only, and if so, whether it had been paid? At the trial of the cause, several witnesses were examined, and exceptions were taken by the appellant to the rulings of the court below in refusing to admit as evidence certain declarations and statements of Daniel Cooke as to the balance of money that would be left for his mother and sister, after the *payment of his debts, and as to the business relations existing between himself and the appellee; to the ruling of the court that Israel Cooke, the appellee, was a competent witness, and permitting his evidence to go to the jury; and also to the rejection of the appellant’s prayers, and to the instructions which the court gave to the jury.

The declarations of Daniel Cooke, which were sought to be given in evidence, were made long after the execution of the paper writing, marked J. C., by him, and were offered for the purpose of impeaching or giving to it an effect different from that plainly indicated by the words used therein, and they were, therefore, properly rejected by the court. Powles v. Dilley, 9 Gill, 234.

It is true that, where a deed is impeached by a stranger to it, upon the ground of fraud, the declarations of the parties to it, made about the time of its execution, are admissible as part of the res gestae, for the purpose of explaining the intentions of the parties and the character of the instrument. To this extent only do the authorities cited by the counsel of the appellant go; but we know of no case which authorizes a party, or those, claiming under him, to give his declarations in evidence for the purpose of impeaching or varying his own deed.

The Act of 1864, ch. 109, sec. 2, prohibits a party to a contract, or cause of action, from testifying where the other party is dead; and it was contended that the court below erred in permitting Israel Cooke to testify, Daniel Cooke, the other party to the paper writing, marked J. C., being dead. This was not a suit upon that paper or contract, but it was a proceeding, instituted by the appellant, to ascertain whether the appellee had come into possession of assets of Daniel Cooke, and if so, to what amount, and to compel him to account for such as had come into his hands. Israel Cooke testified to hav*552ing advanced moneys to Daniel, but said nothing regarding the character of the instrument of writing above referred to, or of the intentions of the parties *thereto at the time of its execution. He was, therefore, a competent witness. The Act of 1868, ch. 116, cited by the counsel of the appellant, had not been passed at the time of the trial below, and of course could not apply to the case, even had it contained provisions prohibiting a party from testifying under such circumstances.

The' court below rejected the four prayers of the appellant, granted the appellee’s first prayer, with an amendment, and gave an instruction to the jury instead of that asked by the appellee’s second prayer; and to these rulings and instructions the third and last exception was taken. The first prayer of the appellant was withdrawn.

There was proof to show that, at the time of Daniel Cooke’s, death, there was some property in the coach shop, carried on by him in his lifetime, which belonged to other parties at the time of his death, and was claimed by and delivered to them, either before or at the time of the sale made by the appellee. It would, therefore, have been error to have instructed the jury that, if they believed Exhibit J. C. was intended to operate as a mortgage, they must find as assets, on the first and second issues, all the property which was in the coach-shop at the time of Daniel Cooke’s death. For this reason the appellant’s second prayer was properly rejected.

The third prayer was also properly rejected, because it erroneously asserted, as a legal proposition, that all debts, which came into the appellee’s hands, were assets without reference to whether they were sperate or desperate, or, if the former, whether they had been collected or lost by the default of the executor.

The fourth and fifth prayers were also properly rejected, because they required the jury, if they found assets, to allow interest thereon from the date of the sale made by the appellee. This it was not competent for the jury to do. The issues they had to determine were simply, whether assets had come to the hands of the appellee, and if they had, to what *amount? Had the jury found assets, then, by the proper proceeding in the Orphans’ Court, the appellee could have been charged with interest upon the assets so found, pro*553vided the facts were shown which would authorize a charge for interest against him.

The two instructions given by the court, in lieu of the appellee’s first and second prayers, cannot receive the assent of this court. The first did not submit to the consideration of the jury the third issue, and the second, in direct terms, decided that the jury was not at liberty to consider that issue under the pleadings, and that they must find for the appellee on the third and fourth issues. These issues were sent from an Orphans’ Court to a court of law for trial; the latter court had nothing to do with the petition and answer upon which the issues were framed. Its province was simply to submit to the jury the determination of the issues without reference to the question whether they were properly presented by the proceedings in the Orphans’ Court.

The third issue presented the direct question, whether the paper, marked J. C., was a mortgage only; and the fourth was, if said paper was a mortgage only, whether the money, thereby secured to be paid, had ever been paid. These issues, as well as the first and second, were sent to the Superior Court to be determined by a jury for the information and guidance of the Orphans’ Court; they were properly presented, and, therefore, any evidence, legally admissible and pertinent to the issues, should have been permitted to go to the jury, and it was manifest error in the court to withdraw either of them from their consideration.

But it has been contended, on behalf of the appellee, that this court cannot reverse on the third exception, because it does not set out the whole evidence. It is, no doubt, well' settled that, unless bills of exception are connected by express reference to each other, or by the use of words which fairly import such connection, they will be considered as separate and distinct, and the court will look to and consider only *the evidence set out in each exception. Gist v. Cockey, 7 H. & J. 134; Burtles v. State, 4 Md. 275; Armstrong v. Thruston, 11 Md. 157. But the rule laid down in those cases, does not apply to the case under consideration. In this case, there is error of law sufficiently appearing in the exception now under consideration, taken by itself, for which this court must reverse, unless it appears that the appellant was not injured *554thereby. To determine this, the court .must look at and consider all the evidence in the record, and is not confined to that which is set out in the particular exception which the court has been considering.

For the reasons we have assigned, the judgment of the court below must be reversed and the cause remanded.

Judgment reversed and procedendo awarded.