| Md. | Oct 3, 1861
delivered the opinion of this court.
This bill seeks to subject to the payment of the complainant’s claim certain property mentioned in the instrument of the 8th of April 1848. Two grounds of equity are alleged in pleading, and relied on in argument: 1st, that the instrument is void under the Act of 1846, ch. 271; and 2nd, that if it be valid, notwithstanding this objection, it should be treated as a mortgage, or security for the payment of a previous debt due by James Denton to his father. It is prayed that the property may be sold for the payment of the grantor’s debts, after an account of the alleged mortgage debt.
The disposition which we feel constrained to make of the case, relieves the court from passing upon the pleadings and proofs as to the character and object of the deed; that is, whether it is an absolute bill of sale, or was merely designed to operate as a security for the debt of the grantor to the grantee.
The Act of 1846, ch. 271, provides that no deed of mortgage, or bill of sale, shall be valid, &c., except as against the mortgagor or grantor, &c., unless there be endorsed an affidavit of the mortgagee or grantee “that the consideration set forth in such deed of mortgage, or bill of sale, is true and bona fide, as therein set forth.” The purpose of this law was to prevent fraudulent transfers of property, upon false or pretended considerations, and to that end required an affidavit as to the truth and good faith of the consideration expressed in the deed. What effect that consideration might have in determining the character and operation of the instrument, is another question. Here the deed contains a money consideration, alleged to have been paid to the grantor, whilst the affidavit shows an indebtedness by one party to the other, without even stating that such debt was the consideration of the instrument, which might have been done if that was the design of the transaction, for a debtor may pay his debt, on agreement with the creditor, by a transfer of property. But we are dealing with a deed which is valid or void, under the Act of Assembly, according to the manner of its execution. It does not provide that the affidavit may show some bona fide consideration, but intends that it shall appear by the oath of the party taking the deed that the consideration mentioned therein was the true cause of making it. A deed executed in this way, appears to us to be within the mischiefs intended to be provided against by the Legislature, for frauds could be committed under cover of such instruments, which creditors might have no means of exposing. Looking to the body of the deed, the consideration might give it one character, and
This deed being void under the Act of Assembly, without reference to the question of fraud in fact — Cockey vs. Milne, 16 Md. Rep., 200 — it was no impediment to the complainant’s proceeding at law against the property, and there is nothing before us on which jurisdiction in equity can be based. The bill of complaint must therefore be dismissed; but we express no opinion as to the question, whether there was sufficient parol evidence of a sale and delivery of the property in question? The only point decided being, that the bill does not state a case to give jurisdiction to a court of equity.
Decree reversed, 'with costs,