Gelston v. Rullman

15 Md. 260 | Md. | 1860

Bartol, J.,

delivered the opinion of this court.

After a careful examination of the record in this case, and a mature consideration of the several points presented in the arguinent of the appellant’s counsel, we have discovered no ground for disturbing the order passed by the Circuit court, from which the appeal was taken.

The bill of sale, from Rullman to Yolkmar and Rhinehardt, is on its face an absolute conveyance, “for the consideration of two thousand dollars lawful money paid” by the grantees to the grantor; in the bill of complaint, it is alleged, that it was in fact designed as a mortgage or security to indemnify the grantees from loss as sureties upon the replevin bonds of Rullman; and the bill of complaint further alleges that it was “intended to operate as a deed of trust; the trust being, that if said effects so conveyed should be. sold, that the proceeds should be held by said Yolkmar and Rhinefiardt, to abide the result of any replevin suits between your orator and said Rullman, and to apply such proceeds to extinguish any judgments obtained by your orator, as well as to satisfy the rent accruing after the date of said bill of sale.” We think these allegations are not sustained by the proof in the record; even if we were permitted to consider the parol proof offered in their support, in the absence of any charge of fraud or mistake in the making of the bill of sale. They are denied in the answer of Yolkmar and Rhinehardt, the grantees, which distinctly avers that the bill of sale was made “on the consideration set forth on its face,” that the respondents “made the payment to the said Rullman of the said consideration therein named, and no indemnity was thought of, at the time of, or since the execution of the said hill of sale, against loss because of tile suretyship aforesaid, and such was not the consideration for making the bill of sale. ”

This answer being verified by oath, is evidence for the respondents. The objection that the bill does not call for the answers to be made under oath, does not avail on this appeal. We have decided at the present term that the Acts of 1852 ch. 133 and 1853 ch. 344, do not apply to motions to dissolve an injunction. Bouldin vs. Mayor & C. C. of Baltimore, Ante 18. To contradict the answer and to support the allegations of the bill, the complainant produced one witness, who proved that the respondents admitted in his presence, that the bill of sale was executed as indemnity to the grantees as sureties of Rullman on these replevin bonds. Upon well established principles of equity, this testimony alone is not sufficient to countervail the effect of the sworn answer in the cause. It appears, by the record, that one of the replevin bonds was executed on the 12th day of April 1855, and the bill of sale bears date on the same day. This fact has been relied upon by the appellant as a corroborating circumstance, sufficient, when combined with the testimony of the witness, to counterbalance the proof furnished by the answer. We do not think it is entitled to the weight claimed for it, and are of opinion, upon the whole proof in the case, that the allegations of the bill, with reference to the consideration of the bill of sale, have not been supported.

(Decided April 18th, 1860.)

We concur, in the opinion expressed by the judge of the Circuit court, that the complainant is not entitled to any equitable lien upon the property taken under distress for rent and replevied. Morrison Replevin, 170. Bradyll vs. Ball. 1. Bro. Ch. Cases, 428; And we think the injunction was properly dissolved.

Order affirmed, with costs, and cause remanded,