Flickinger v. Hull, 5 Gill 60

Flickinger v. Hull

5 Gill 60 | Md. | 1847

Lead Opinion

Chambers, J.,

delivered the opinion of this court.

The bond of Hull, as guardian, and the fact of bis charging himself with the amount due from Snyder, the former guardian to whom he wras security, made him responsible to the ward for that amount. Where a person in one character is debtor, and the same person in another character is creditor, the law regards the debt as paid by the debtor capacity to the creditor.

This is on the same principle which governs in the case where a man has several capacities, and is found in possession of property, the law will attach the possession to the capacity in which, of right, it ought to be held j so also, where having *75various capacities, he executes an authority delegated to him in one of those capacities, the law will attribute the act to the proper authority, although the person does not profess to exercise it, in virtue of that particular power. It is said that this being, so far as the ward was concerned, equivalent to an actual payment by Hull, would entitle Hull to claim contribution from Flickinger, if at all, at that time, and by a suit at law. How far a principal in a bond, who had charged himself in the Orphans court with the receipt of a sum of money, could in a court of law, recover against a security on his own bond, upon the ground that the money was not received in fact, but only charged because both the principal and that surety were co-sureties of the former debtor, and therefore equally liable, might be a very questionable matter. Certainly the learned counsel has not produced such a case, and it is believed such an one cannot be produced. The case is very far from being an ordinary case of contribution. If suit at law would not have been entirely defeated by showing that the plaintiff was principal in the new bond, and the defendant his surety, and that the plaintiff had admitted the receipt of the whole sum, yet clearly, the defendant could, under the circumstances of this case, have restrained the plaintiff from enforcing the payment of the one-half of the gross amount, until it was ascertained in a due course of administration, how much Snyder’s estate would pay, and of course how much the ultimate loss would be, especially, as in the meantime no actual advance of the capital was required, and no actual loss sustained by the plaintiff.

It is a case now complicated by sundry payments and receipts running over quite a long period of time, and in adjusting which, accounts between the parties will be necessary to ascertain the true merits of their respective claims, if indeed the complainant shall ultimately be found to have a claim.

It is therefore the proper subject for a bill in Chancery, where the technical objection of the admission in the account passed by the complainant will not conclude him, and where a *76thorough examination of all the accounts can be had, and an opportunity afforded of proving the agreement, and remedy extended to suit all the circumstances of the case. It has ■been intimated that perhaps in equity, no claim for contribution could have been enforced at any period prior to the actual payment of the money by the appellee, the guardian. In that ■view of the case, there would be no pretence to allege that the claim was stale, but upon the ground even that a proceeding could have been instituted as soon as the appellee charged himself with the debt, yet the period has not elapsed which is considered as evidence of payment. That period has been fixed at twenty years, and ought not to be shortened, except •under peculiar circumstances; whereas in this case, there are peculiar circumstances to account for the delay, and of course to forbid the making the exception.

The case being before us on bill and answer, on motion to ■dissolve the injunction, must in reference to that motion be regarded as if there was no such agreement between the parties at the time Hull became guardian; the answer of defendant, having positively denied its existence. It is not however denied that there was a balance due from Snyder, for which both were equally liable; that Hull charged himself with this amount, without in fact receiving it, and that Snyder's estate was partially insolvent. These facts alone, exclusive of any agreement, would entitle Hull to contribution, and therefore would make it inequitable for Flickinger to issue an execution for and recover the whole of the balance paid by him on the ward’s judgment. The injunction therefore was properly continued to restrain him from such proceeding.

It is said that by the authority of 7 G. & J. 306, Planters Bank & Hodges, this court have required the injunction to go only for the amount claimed as a deduction, here the appellee ■claims “ nearly the whole,” the admission of a balance is in very equivocal terms, and a readiness is alleged to pay what may be found due. So far however as he admits a balance due to Flickinger, the court below should have passed an order directing the amount to be brought into court to be paid *77accordingly, and doubtless would have done, and will still do so at any time on a petition by the appellants to that effect.

It is not in this case a sufficient ground on which to dissolve the injunction. The answer sets up various matters by way of defence, but they are not responsive to the bill; and cannot of course affect the question of dissolution which is now before the court.

A question has been made in the argument on the conformity of the assignment stated in the proceedings to have been made by Rachner and wife, who were the beneficial plaintiffs in the judgment obtained against these parties on the guardian bond, to the provisions of the act of 1763, ch. 23, but the view taken of the case has rendered an opinion on that question unnecessary.

On the whole, this court is of opinion that the bill does contain matter fit for the jurisdiction of the court, and entitling the complainant to an injunction, and that the answer does not entitle the defendant below, the appellant here, to a dissolution of that injunction.

decree affirmed.

Dissenting Opinion

Magruder, J.,

dissented, and delivered the following opinion.

This appeal is from an order of Carroll county court, sitting as a court of equity, continuing an injunction which had been granted to the appellee. Ought that injunction to have been continued ?

If one of the allegations to be found in the bill of complaint had been admitted in the answer; if it could appear 1o us, that there was an agreement between the complainant and the defendant in the bill, that the former should be the guardian of the ward spoken of in the proceedings, after the death of the first guardian, should charge himself in the Orphans court with the amount of the ward’s estate, which was in the hands of the first guardian at the time of his death, and that any loss thereafter to be sustained by reason of the insolvency or waste of assets, of the first guardian’s estate, should be equally borne by these parties, (the securities in the first guardian’s bond,) *78the complainant’s case in equity might have been a very different one, from that which in deciding this case we are bound to suppose it to be. Whatever cause others might find to complain of such an arrangement, and the settlements in consequence of it, yet inter se, in any controversy between those parties, and in which no other person had an interest, the settlements by the complainant in the Orphans court, would perhaps be no obstacle to the relief which is sought by him in this case.

This allegation is denied in the answer, and it may be proper to remark here, that before the argument in the court below, the complainant obtained a commission to take proof, as authorized by the act of 1835, ch. 380, sec. 8, “to be considered in connection with the bill or petition, and answers in the cause.” Having thus been afforded an opportunity of sustaining his allegations by proof, and failed, we may well suppose that the matter alleged is incapable of proof. At all events, at this time and upon this appeal, we are bound to assume that it is utterly unfounded.

The case then may be stated in these words: In the year 1820, the Orphans court of Frederick county appointed one Jacob Snyder the guardian of Matilda Flickinger, at that time an infant. The complainant and defendant became his securities in the bond executed by him as guardian. This guardian took possession of his ward’s estate, and was in the possession of it when he died in 1825. The complainant thereupon was appointed the guardian, and gave bond as such, with the defendant and another as his securities. In the following year (1826) the complainant as guardian, settled his first account with the Orphans court, and charged himself with the whole amount of the ward’s estate, which was in the hands of the first guardian at the time of his death, and as being then in the hands of himself, the second guardian. Another bond was required from and given by this second guardian in 1831, and in that bond a different person, and the defendant in Chancery, became the securities. The ward became of age in or before 1835, and at different periods the complainant paid to her sums *79of money, still leaving a balance due to her; and the same year that she came of age, this guardian settled his eighth, being his final account, and therein stated the balance which he still admitted to be in his hands, due to his ward. Failing to pay to her this balance, thus ascertained to be due to her, a suit was instituted on the last bond for the use of the ward and her husband, against the complainant and defendant, and a judgment was obtained thereon in 1845, for the sum ascertained as before stated to be due to her, after deducting any payments made by the guardian subsequently to the last settlements. The amount due on the judgment the defendant has been compelled to pay, and having paid it, obtained an assignment thereof.

Complainant says, that he paid more money to the ward than the defendant in the court below, and insists that each is bound to pay one-half, because they were securities for the first guardian. He asks for an account, and that the defendant below shall be restrained by injunction from proceeding upon the judgment obtained on the bond in which the complainant was principal, and the defendant in the court below only his security.

It is manifest then that the complainant must insist that these payments, though made in satisfaction of the judgment, were not on account of the bond, whereon the judgment was obtained. He insists that the money was in truth still due from the estate of the first guardian, and for that ward’s estate, (after crediting some payments made to himself by the representative of the first guardian,) the first bond in which complainant and defendant were co-securities, was alone answerable; that the second bond, upon which the ward obtained a judgment, never was responsible.

This then is an attempt by the complainant to impeach a settlement made by himself in the year 1825, and verified at the time by his own affidavit, confirmed by him in seven later settlements voluntarily made by him, verified also by as many affidavits, when it is not and cannot be pretended by him, that any of these settlements was the result of fraud, surprise, mis*80take, misapprehension, or ignorance, and this attempt is made upwards of twenty years after the first settlement. If this was every thing that could be said in opposition to this attempt to impeach these settlements, it surely would be quite sufficient in a court of equity, and indeed, every where. Of courts of equity it has been said, that in resisting and defeating stale demands, they sometimes act in analogy to the law; but they act too upon their own inherent doctrine of discouraging for the peace of society antiquated demands, by refusing to interfere where there has been gross laches in prosecuting rights, or unreasonable acquiescence and delay in the assertion of adverse rights. See 2nd Story Eq., sec. 1520, and the various authorities to which reference is there given. If these settlements with the Orphans court, prepared by himself, and verified by his own affidavit, speak the truth, then there is no pretext for the relief which is sought. If such an allegation had been made at the time, or shortly after the first settlement, it is possible that the most conclusive proof could have been adduced that the complainant did actually receive of the representatives of the first guardian, the money with which he so often charged himself as being in his hands. Receipts might at the time have been obtained, and in the course of time lost. And why in this individual case, should they have been preserved ? What motive would the representative of the first guardian have to retain for upwards of twenty years, receipts which would only prove that of which the party who gave the receipt had been so careful to furnish record evidence within the reach of all? How often has it been remarked, that courts of equity refuse relief to stale demands, even in cases where no statute of limitations could be pleaded ? There is no statute of limitations to bar the recovery of a legacy, but if not claimed within twenty years, the payment of it will be presumed, and no account at such a distant period can be demanded in equity by a legatee or distributee. The length of time establishes the fact, of which, but for the lapse of time, there is no evidence. This however is not all. We are now required to believe, that for the estate of this ward, (except a *81portion of it,) the second bond was not answerable. Yet upon the second bond, a judgment has been obtained against the defendant as security for the complainant for the whole, when such judgment could not have been obtained, but for these false statements by the principal, and his concealment of what he now says is the truth, until his security had been compelled to pay the money, due, not upon the second, but upon the first bond. If the facts were so, then the defendant has been most shamefully defrauded, and by nobody but the complainant, of every indemnity which may have been given to him in order to induce him to become a security in the first bond. Yet more: if in equity it is decided, that the settlements are nullities, what is to become of the judgment, and the money that was received in satisfaction of it, from the defendant in the court below? Is the evidence to be demolished, when wanted by the security, and yet the judgment obtained against him upon that evidence (furnished by the principal) to remain untouched ?

It may be confidently affirmed, that no attempt is ever successfully made in a court of equity, to correct an error wilfully made by the party, asking for the correction for his benefit exclusively, and when by the correction an innocent person is to be prejudiced. A man is not at such times as he pleases, to have the benefit of the truth, when others have been or may be injured by his wilful suppression of it. A man cannot be allowed to rely even on his own negligence for his own benefit. A concealment of title will sometimes operate a forfeiture of it, as was shown by the authorities cited in this court in the case of Bowly & Lamott, 6 H. & J. 500. But in the case before us, a conclusive answer to every thing in the bill of complaint (expunging that part of it which is expressly denied,) is nemo suam turpitudinem allegans est audiendus.

In deciding this case, it is not necessary to enquire, whether if these statements were false, the first bond was ever discharged. It may be that the ward ought to be allowed to have had a remedy on the first bond, though if a suit had been instituted upon that bond, it is difficult to conjecture how it could have been supported, if the settlements had been pro*82duced in proof, that all which was in the hands of the first guardian had been'paid over by his own acknowledgment, to the only person who was authorized to receive it. We are not enquiring what were the ward’s rights, and as she has sued upon the second bond, recovered a judgment, and that judgment has been satisfied, it would be difficult for her now to claim any thing on the first bond. It is certain that the two bonds could not be liable to her at the same time for the whole estate.

Of course it is not designed to say now, that upon a final hearing, the complainant in this case will not be able to prove that he is entitled to relief. The question at this time is, whether upon this bill and answer, the injunction which has been issued ought to be dissolved ? If the complainant should hereafter show he is entitled to any relief, a dissolution of the injunction at this time will not hinder him from obtaining it. At present, we must consider this as an attempt by him to prevent his security from recovering back money which he has been obliged to pay for him, under the pretext that he also has a claim against his own security, as co-security with him in a bond given by another person for the performance of duties which that person had undertaken. To maintain his right to relief, he must show not only the case alleged, but if the estate has not been paid over by the representatives of the former guardian, that no part of it has been lost by reason of any neglect of duty by him, the second guardian. The facts stated in the answer, if shown, will materially prejudice the complainant. “ It is true,” as Story observes, “ that it is impracticable to limit the power and discretion of courts of equity, as to the particular cases in which injunctions shall be granted and withheld.” It is true also that “the exercise of it is attended with no small danger, both from its summary nature and its liability to abuse.” Injunctions to stay the execution of judgments at law, ought not to be obtained with too much facility, yet unquestionably they are frequently granted most improvidently, and' it seems to require but ordinary skill, so to frame a bill, as not only to obtain it, but to prevent its dissolution until final;hearing, when'oftentimes it is dismissed, *83because there is not a particle of equity in the complainant’s case. According to the answer, too, it would seem that the party practised a fraud upon the court, in suppressing facts, which, if disclosed, might have deprived him of all title to relief—that there has been suppressio veri, as well as suggestio falsi. It is true, those parts of the answer are not strictly responsive to the bill, but this is because of the omission by the complainant himself, if the defendant is to be believed, to disclose all the material circumstances of the case, because the bill itself does not expressly authorize the defendant to put the court in possession of some of these circumstances.

The act of 1836, ch. 380, certainly does change the rules by which our Court of Chancery had previously been governed in disposing of motions to dissolve injunctions. They are not now necessarily to be decided upon bill and answer; so it is in England, as it appears by the cases referred to, 1 Swans. 254, (note b.) In Maryland, these rules are not quite so inflexible as they are usually supposed to be. See 1st Bland, 137. An injunction ought not to be a mere contrivance for the hindrance and delay of justice. In bills for an injunction, denials are sometimes to be deemed as necessary as averments. In continuing, as well as in granting injunctions, it is to be remembered that the injunction power ought to be exercised with extreme caution, or it will be made an instrument of oppression and irreparable wrong. “ There is,” said Justice Baldwin, (Baldwin’s C. R., page 218,) “no power, the exercise of which is more delicate, which requires greater caution, deliberate and sound discretion, or is more dangerous in a doubtful case, than the issuing of an injunction. It is the strong arm of equity that never ought to be extended unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages. If it issues erroneously, an irreparable injury is (often) inflicted, for which there can be no redress, it being the act of the court, not of the party who prays for it.”

• Leaving then the complainant to his remedy, if upon a final hearing he can show that he is entitled to relief, it seems to *84be but justice, that the appellant should be left at liberty to issue an execution upon the judgment, (to which the complainant ought not now to be permitted to object,) to recover money which he has been compelled to pay, as security for the plaintiff, and which in that suit, he could not have been compelled to pay, but for the admitted, avowed misconduct of the complainant himself.

It may indeed be said, that as the complainant was security in the first guardian’s bond, and responsible for the estate which came to the hands of the first guardian, he might be considered by operation of the law, in possession of the estate. This is not true. An executor, if appointed guardian of an infant distributee of the estate, after a final account has been or ought to have been passed, by operation of the law, is in possession of the estate thenceforward as guardian. Watkins' Adm'r vs. The State, use of Shaw, 2 G. & J. 220. There is however, a wide difference between an executor who is appointed a guardian, and a security of the first guardian. The case just referred to tells us. that in the case of a joint executorship, if one of them is appointed guardian, the property cannot be considered in his hands until he actually receives it, because his co-executor is equally with himself entitled to the possession of the assets.

I am then of the opinion, that all the real equity in this case is denied by the answer, and the injunction ought to be dissolved.