| Md. | Mar 12, 1875
delivered the opinion of the Court.
Exceptions were filed in the Circuit Court for Anne Arundel County, in the distribution of the proceeds of sale of the property of John H. Drury, amongst his creditors, to the allowance of claims of Mary R. Drury, his wife, consisting of two judgments, standing for her use, designated in the auditor's report as Nos. 3 and 6.
The exceptions were sustained, and the claims in part rejected, by the order of the Court of the 7th May, 1873, from which the appeal has been taken.
The claim of Mrs. Drury, originally consisted of two parts, which were consolidated in the obligation given to
The origin of her equitable claim against her husband was long anterior to the claims of the present creditors of Drury, and there is no question as to the perfect sincerity and bonafides of the transaction between the husband and wife.
The present contention is over that part of her claim, resulting from a note given to Mrs. Drury, by her brother, Mr. Jones, for $850, on account of his purchase of her undivided interest, in the proceeds of the real estate of her father, which had been sold under decree, for partition in 1851, and which were in Court undistributed.
The circumstances as detailed by the proof are sufficient to show, that Mrs. Drury, being thus entitled to a portion of the proceeds of the sale, then in Court for distribution, without a formal order of the Court, as to the distribution of her part, Mr. Drury the husband agreed that her interest in the fund, should be assigned to her brother, and his note for $850 taken therefor, should be given to Mrs. Drury, as her separate property.
This is the equitable foundation of Mrs. Drury’s claim, which both husband and wife have always treated as belonging to the wife.
Upon the basis of which Drury, the husband, made the promise to his wife, and upon the faith of which she gave up the note to him.
Mrs. Drury had held the custody of the note, as her own separate property, when her husband agreed that if she would permit him to collect it, he would repay it to her whenever demanded.
In pursuance of this understanding, and performance of the agreement on his part, he gave the obligation, in good faith, for its payment, thus ratifying and confirming his original agreement.
Unless in conflict with some controlling principle of justice and right, a Court of Equity must sustain the agreement.
The husband did not reduce the chose in action of his wife to his possession by virtue of his marital rights, but in pursuance of his agreement with his wife, obtained the control of the note.
To allow the husband to repudiate the debt when he found that he had the right to do so, because contracted with his wife, would give him license to disavow his obligations, founded upon adequate consideration.
The establishment of such a principle would be subversive of the moral obligations of good faith and honest dealing, governing the relation of husband and wife, which no Court of Equity can sanction.
The parties out of Court, of their own accord, have acted for themselves, upon equitable grounds; and that has been done, which the Court would have ordered, upon the application of husband and wife, before the distribution of her share of her father's estate.
There is, therefore, every reason why it should receive the sanction of the Court, after it has been done, and the claim of the wife, under such circumstances, be recognized and approved, as just and valid. Stevenson vs. Reigart, 1 Gill., 27.
So far as a consideration was necessary to support the agreement, the origin of the claim, and the circumstances connected therewith afforded a sufficient foundation.
When the obligation is founded upon an equitable duty, that is a sufficient consideration to support the promise even in a Court of law.
If the husband was under a moral obligation, which no Court could enforce, and promised to pay the claim, the
“The rule to constitute a valid consideration for a promise, there must he a benefit to the promisor, or loss to the promisee, is much too narrow.” Stevenson vs. Reigart, 1 Gill, 26.
It is an established principle, that any consideration, however small, will he sufficient, as a Court of Equity is willing to lay hold of any just ground to support an agreement. Hannan vs. Towers, 3 H. & J., 147.
The claim of Mrs. Drury, in this case, is manifestly just, and must he allowed.
It follows, there was error in the rejection of her claims to the property in question, standing to her use.
The case will be remanded that they may be allowed by the Circuit Court, subject, of course, to any just credits applicable thereto.
In relation to the claims of Joseph C. Collinson and Stephen Beard, Nos. 2 and 8, representing, it seems, the same debt, secured by two mortgages, there is some question as to its priority.
We think it is right that this debt should have the benefit of the lien of the first mortgage to Collinson.
From what occurred between the parties, at the time of the substitution of the second mortgage, there could have been no intention to waive or postpone the lien or security of the debt.
The mortgage was not actually released, and other creditors had notice.
In Woollen vs. Hillen, 4 G., 185, the mortgage had been released, and a different question was involved. See Brawner vs. Watkins, 28 Md., 226; Walker vs. Stone, 20 Md., 195.
Order reversed, and cause remanded.