Farquharson v. Eichelberger

15 Md. 63 | Md. | 1860

Le Grand, C. J.,

delivered the opinion of this court.

This is an attachment. The debt, and a sufficiency of funds in the hands of the garnishees to pay it, are not denied. The defence, is, that on the 16th day of December 1854, the defendant, Lewis A. Muncks, executed a deed to the garnishees of his property, for the payment of his debts, in reply, the plaintiff contends that this deed is void, and asked the court below to so instruct the jury, which the court refused to do. Upon the validity of the deed depends the decision of this case.

In its premises, or recital, it declares, that the said Lewis A. Muncks “hath granted, bargained and sold, assigned, conveyed, transferred and made over, and by these presents doth grant, bargain and sell, assign, transfer, convey and make over, unto the said Qtho W. Eicheíberger and Jacob Trust, and the survivor of them, and the executors and administrators of such survivor, all and singular the goods, Wares, merchandise, stock in trade, chattels, property and estate of every kind and description belonging to the said Lewis A. Muncks, and all debts, sum and sums of money, books of account, claims, and other things due, owing and belonging to the said Lewis A. Muncks, and all his estate and interest therein.” In the habendum of the instrument it is said, that the grantees are “to have and to hold all the said estate and property, stock in trade, chattels and effects, debts, claims and sums of money hereby mentioned to be conveyed, transferred and assigned, unto the said parties hereto of the second part, and the survivor of them, and the executors and administrators of such survivor, in trust and ■confidence,” <fcc„

The reasons assigned in argument why the deed should be considered void, are somewhat different from those urged at the trial below. It is urged before this court, that the deed was, and is, void, because it was intended to convey, and only conveys, the personal property of the grantor, and does not necessarily convey all his property, real and personal, and not a fee-simple interest in his lands, if he had any. This objection was not embraced in the instruction refused by the court, but had it bedn we do not think it should have availed.

In construing deeds of trust in favor of creditors; this court has, on more occasions than one, said; that the deed, on its face, must convey all the property of the grantor, and that the. deed must be interpreted by its own language: Rosenberg & Blondheim vs. Moore, 11 Md. Rep., 381. The question then is, does this deed convey all the estate, real and personal, of the grantor? We are of opinion it does do so. In the premises the grant is, of his “ estate of every kind and description. ’ ’

In the case of Budd vs. Brooke, et al., 3 Gill, 235, thfe the court holds the following language, which is conclusive of question: “The technical meaning of the word‘premises,’ in a deed of conveyance, is everything which precedes the habendum, and it is in the premises of a deed that the thing is really granted,” Speaidng of the case then before them; the court proceeds to say: “According to our construction of the grant, made by the premises, i-t is in direct conflict with that contained in the habendum Both cannot prevail. One must overrule the other. Which takes precedence, is the question? In our opinion, the limitations contained in the habendum must be rejected, and the estates given in the premises must prevail. In 2 Lomax’s Dig., 188, it is stated, that ‘where there are two clauses in a deed, of which the latter is contradictory to the former, then the former shall stand.’ And at page 215, of the same book, it is said, that ‘where the habendwn is repugnant and contradictory to the premises, is is void, and the grantee shall take the estate :given in tire premises. ’ ’ ’

(Decided February 27th, 1860.)

The objection that there are no words of inheritance in the deed, is fuliy answered by the case of Spessard and others vs. Rohrer and others, 9 Gill, 261, in which it was decided that, in a deed of trust, conveying property for the payment of the debts of the grantor, the omission of the words, uand his heirs,” did not have the effect of confining the grant to personalty, but where the intent to convey all the property of the grantor was manifest, a fee-simple in realty also passed, by implication, under the deed.

All the other exceptions to tlie deed, with the exception of the one which declares against its validity because it does not require notice to be given to the creditors, arc answered by the case of Maennel et al., vs. Murdock et al., garn. of Falconer & Haskell, 13 Md. Rep., 164. In regard to notice, the recording is, in the absence of fraud, sufficient. Williams vs. Banks, 11 Md. Rep., 250. Cooke’s lessee vs. Kell, 13 Md. Rep., 493. Perceiving nothing erroneous in the ruling of the court we affirm its judgment.

Judgment affirmed.