46 Md. 154 | Md. | 1877
delivered the opinion of the Court.
This suit was instituted on a trustee’s bond to recover the balance of a sum of money arising from a trustee’s sale made by Forrester, and audited to the appellee, then a minor.
The sureties filed nine pleas, the seventh of which was demurred to, and the demurrer was sustained, and the first question presented in the case is whether the ruling in this respect was correct or not. The plea, alleged that without their knowledge, but to the knowledge of Kernan, Forrester became embarrassed pecuniarily in the fall of 1872, and that Kernan, thus knowing Forrester to be embarrassed, asked him what investment he had made of the money of said Kernan, and was told that he had invested it, or part of it, in property on Hoffman street, and that Kernan declined to accept the same, but did not then, or afterwards, inform the defendants either that Forrester was pecuniarily embarrassed, or that such, investment had been made by him, and that by reason of such information not having been imparted to them, they had lost the opportunity of securing themselves against any loss they might sustain on account of their suretyship on the bond mentioned in the declaration, and protest that at that time, their liability on the bond ceased.
The defendants filed a motion to have withdrawn from the jury evidence offered by the plaintiff, to prove that the deed from Forrester and wife to Kernan, of the Garden street property, was given as collateral security for the debt due the latter, said evidence, as they allege, having been received subject to exception and being inadmissible. The record nowhere shows that such evidence was admitted subject to exception, nor does it appear that the Superior Court passed upon the motion, nor is there any exception in the record with respect to this matter, and we must therefore presume that the evidence was admitted without objection from the defendants.
The second exception is taken to the granting of the plaintiff’s two prayers, and to the refusal to grant all the
The plaintiff’s second prayer asked the Court to exclude from the consideration of the jury all the evidence which had been admitted, subject to exception, to show the state of accounts between Forrester and Mrs. Willoughby individually, and Shipley. The accounts between these parties could have no relevancy to the issue before the jury, as they did not tend to prove what sum, if any, was due by Forrester, trustee, to Kernan, or to prove or disprove the liability of the sureties in the bond to pay the sum for which their principal was in default. They were therefore inadmissible, and were correctly withdrawn from the jury under the plaintiff’s second prayer.
When the auditor’s account was ratified, Forrester, as trustee, became liable to pay on notice thereof and demand, and Kernan entitled to receive the sum of money audited to the latter. Whether Forrester’s sureties would have been released from their liability if Kernan after he came of age, had authorized and directed the trustee to invest the said money for him, and it had been so invested, it is unnecessary now to consider, because it is not contended, nor is there any proof to show that it was so invested. On the contrary, it appears in proof that Forrester invested it in the Hoffman street property, and upon Kernan declining to assent to that investment, he purchased the Garden street property, which was then subject to a mortgage, took the title in bis own name and afterwards mortgaged it for his own purposes. Until the money due Kernan was either paid to him, or invested for his benefit according to bis directions, Forrester’s sureties remained liable to Kernan on the bond. It was contended, however, that as Kernan bad received a deed for the Garden street property from Forrester and wife, the consideration for which was stated to be six thousand dollars, and because the deed is absolute upon its face, it must be taken
Judgment affirmed.