59 Md. 534 | Md. | 1883
delivered the opinion of the Court.
The proviso in the first section of Article 45 of the Code, “that no acquisition of property passing to the wife from the husband after coverture, shall be valid, if the same has been made or granted to her in prejudice of the rights of his subsisting creditors,” does not prevent the husband from treating his wife like any other creditor, if the relation of debtor and creditor is proved to exist between them. A wife may become a creditor of the husband, and this provision of the Code 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
The deed assailed by the creditors of the husband in this case bears date the 18th of December, 1875. By it,, the husband, Peter Barkdoll, conveyed about ninety acres, of land to his daughter, Mary A. Barkdoll, in trust for his. wife, Susanna Barkdoll. Upon its face it purports to have been executed, “ in consideration of the sum of eleven hundred dollars, heretofore received by him, the said ’Peter,, from his wife Susanna Barkdoll, and in payment and extinguishment of the debt from the said Peter to his said wife thereby created.” It was admitted that the value of this land was less than $1100, and in support of the debt, referred to as the consideration of the deed, there were produced two promissory notes by the husband to the wife,, one for $525, dated the 28th of November, 1868, and the other for $575, dated the 1st of April, 1870, each payable one day after date. The proof as to the history of these notes,—how the wife obtained the money, and how she became the creditor of her husband,—comes from the husband, the wife and the daughter, who were examined as witnesses. By their testimony the following facts, in substance, were proved:
The wife was entitled, under the will of her father, Joseph Shank, who died in November, 1848, to a share of his estate, real and personal, upon the death of her mother, who died in 1850. By an arrangement between them, the son, Benjamin Shank, agreed to take the estate at a valuation and pay to the other children their respective shares in money. Benjamin, in 1854, paid to his
Suet, in substance, is tte state of case made out by ttese witnesses, and if they are to be believed tte deed must stand, for their testimony stows a bona fide debt due by tte husband to tis wife, wtict is sufficient, upon tte principles laid down in tte authorities already cited, to support tte deed. It is true ttat while tte law has made ttese parties competent witnesses, they are all more or less interested in sustaining the deed and in tte result of ttis suit, and ttat interest undoubtedly affects tte credibility of their testimony. It is also true ttat tte existence of ttis debt and of these notes was not known to parties dealing with and trusting tte husband, ttat a long period intervened between tte origin of tte debt and the execution of tte deed, and ttat the husband made no attempt to secure it otherwise than by tis notes, until te tad contracted debts, and found himself in failing circumstances. Ttese facts, while they are enough to arouse suspicion and subject what they say to careful scrutiny, are not, in our opinion, sufficient to justify us in imputing perjury to ttese witnesses by declaring their testimony to te substantially false, and ttat ttese notes were fabri
The only other witness examined in the case was Mr. Syester, and there is nothing in his testimony, so far as it went, in material conflict with what these witnesses swore to. He very properly refused to disclose what Barkdoll said to him when he prepared the deed, and the Court was clearly right in sustaining him in this refusal. Barkdoll went to him as a lawyer, employed him to draw the deed, and sought his professional advice in reference to it. It is a common thing in this country, for a party wishing to convey his property to seek.the advice of an attorney, and for the attorney not only to give advice, but to act as conveyancer in the preparation of the deed. Communications made by a client to his attorney thus employed, relating to the subject-matter about which.and for which advice was thus sought, are just as confidential and just as much privileged as if they were made in reference to a litigation existing and in progress at the time.
Decree affirmed.