53 Md. 580 | Md. | 1880
delivered the opinion of the Court.
The first question to he considered in this case, arises-upon the exceptions of the appellants to the admissibility of evidence tending to establish or set up the infancy of" the appellee, at the time of the execution of the mortgages of January 19th 1830 and July 19th, 1831.
This exception is based upon the alleged insufficiency of the averments in her original hill and amended hill to-raise that issue, and also upon the effect of her admissions in the agreed statement of facts, and in her amended answer, which, it'is contended, amount to a waiver of her-right to assert or rely upon her alleged infancy, and preclude her from denying the binding effect of the mortgages for that cause.
With respect to the original hill, it is clear that theappellee was not called on to anticipate the defence of the appellants, or to urge or rely upon the fact of her infancy. By her general replication, she put in issue the defences relied on in the answer, and cast upon the respondents, the onus of proving the existence, due execution and binding effect of the mortgages. Her admission in the agreed statement of facts that “ she concurred in the two-mortgages as stated in the answer,” amounts to no more-than an admission of the fact that she had so concurred, and does not import that she was at the time of full age,.
Moreover, looking at the circumstances under which the agreement was made and the evident object and purpose of appellants’ counsel in making it, as stated by him, which was solely for the purpose of determining the allawance of dower to the appellee, if any should he allowed,
The next question to he considered arises upon the cross-bill, and the exceptions of the appellee thereto, and to the admissibility of “ Exhibits X, 7, Z,” filed therewith.
One ground on which the cross-bill is sought to he maintained, is that appellants' solicitor was taken hy surprise, when in the argument of the cause the appellee’s solicitors alleged that she was an infant under the age of twenty-one years when she united in the mortgages. But as we have said, there was nothing in the pleadings, or íd her admissions, to preclude her from setting up and relying upon her infancy, it is obvious that the cross-hill cannot he supported for this cause.
The only affirmative relief asked hy the cross-hill is that the two mortgages in question, in case the same were executed when the appellee was not of full age, shall be confirmed and made valid hy the Court under Art. 16, sec. 31, of the Code.
The power conferred upon the Courts of Chancery hy this provision was first given hy the Act of 1832, ch. 302, which was passed after the mortgages in question had been executed. That Act is not retrospective in its operation . and therefore could have no application to the present case. But in addition to this objection, it is clear that the provisions of the Act, and of the Code, even if they had been in force at the date of the mortgages, would confer no power upon the Court to confirm a mortgage executed hy a feme covert infant, after she had attained full age and against her consent. The whole intent and pur
The appellants not being entitled to this, the only affirmative relief prayed in their cross-hill, there remains no other ground stated therein upon which the cross-bill can he maintained. The rule is well settled that “ a hill of this kind which seeks no discovery, and makes no defence which was not equally available hy way of answer to the original hill, will he dismissed.” Story Eq. Pl., sec. 389.
We refer also to 2 Daniel Ch. Pl. & Pr., 1648 and 1659, where the same rule is stated. “The plaintiff in a cross-bill cannot contradict the assertions in his answer in the original suit.” 2 Daniel, 1652. It follows that the cross-hill of the appellants must he dismissed. It appears, however, from the matters therein disclosed, with reference to the mode in which John Clark acquired the title to the property in question, and the nature of his seisin thereof, that the appellants may he entitled to a valid defence in this suit, provided the facts are alleged in proper form by way of an amendment to the answer in the original case, and are. established hy competent and sufficient proof.
It is very clear that under the rules before stated, these new matters of defence cannot properly be presented hy a cross-bill. And the question arises whether the appellants, after the admission made in their original answer, and by the agreement of November 30th, 1877, with respect to the seisin of John Clark, ought to be allowed now to amend their answer, setting out the facts showing the nature and character of the seisin actually held hy John Clark. It appears from the allegations in the cross-hill, which we may look at for this purpose, that these facts
The power to remand the case for that purpose is conferred on this Court by Art. 5, sec. 28. Under this section it becomes our duty to express our opinion on all points made before us, or which may be presented by the record,
This opinion must be, in some respects, hypothetical, as we cannot with certainty anticipate the position the case may assume when the pleadings shall be amended, and additional proof furnished. These propositions may however be laid down for the government of the Court helow, in the further progress and final disposition of the case.
It appears from the record that the title of the appellants was derived indirectly from the General Insurance Company, which purchased the property from Gatchell, trustee, appointed to sell the same, by a decree recovered by said company against John Clark under a mortgage, dated January 16th, 1834, in which mortgage the appellee did not unite. The title thus acquired by the General Insurance Company, was subject to the liens of the prior mortgages made by Clark, in two of which the appellee united according to law, relinquishing her dower.
These prior mortgages were subsequently paid by and assigned to the General Insurance Company, and the title thus acquired by purchase and assignment is held hy the appellants.
1st. Assuming that John Clark had during the coverture, a beneficial legal seisin in fee, and that the appellee was of full age when she united in the mortgages of January 9th, 1830 and July 19th, 1831; she cannot claim dower against the mortgagees, and their assigns, except subject to such mortgages, and is bound to contribute for the payment of the mortgage debts and interest, and she is dowable of the surplus only. Mantz vs. Buckman, 1 Md. Ch. Dec., 202; Stewart vs. Beard, 4 Ib., 319; Lynn vs. Gephart, 27 Md., 547 ; Bank of Commerce vs. Owens, 31 Md., 320.
2nd. If under the age of 21 years at the time of the execution of those mortgages or either of them; the rights-
3rd. But although the appellee was not of full age when the mortgage of January 19th, 1830 was executed, yet if the same was given to secure the purchase money, either to the party from whom the title was derived, or to a third person from whom the purchase money was obtained hy the purchaser upon an agreement that such mortgage should he executed, she cannot claim dower as against the mortgagee or his assigns, her right of dower being subordinate to the lien of the mortgage, to the payment of which she is bound to contribute, and she is dowable of the surplus only. Hobbs vs. Price, 47 Md., 360. We refer also to Wheeler vs. Morris, 2 Bosworth, 524, where this subject is considered in an able opinion by Judge Woodruff.
The foregoing propositions have been stated upon the assumption that John Clark had a beneficial legal seisin in fee during the coverture. We now proceed to consider the effect of the facts stated in the record, with respect to the original acquisition of title by John Clark, and as. shown b)’ Exhibits X, Y, Z, if the same be duly proved.
Erom these it appears that John Clark acquired a mere ■equitable right by his contract of purchase from the trustees Glenn and Winchester, of this his wife would not be entitled to dower, as he was divested thereof during his life-time; it being well settled that the wife’s right to dower in the equitable estate of her husband exists only where the husband is possessed of such estate at the time his death. Miller vs. Stump, 3 Gill, 304; Bowie vs. Berry, 1 Md. Ch. Dec., 452; Purdy vs. Purdy, 3 Ib., 547; 1 Scribner, ch. 19, sec. 25; Ibid, ch. 20, sec. 45.
It appears that this equitable right was conveyed hy Clark to the Savings Bank absolutely, from which he rented the property, and that subsequently, the purchase
The law in such case is thus stated by Chancellor Kent: “A transitory seisin for an instant, when the same act that gives the estate to the husband, conveys it out of him, as in the case of a conusee of a fine, is not sufficient to give the wife dower. The land must rest in the husband beneficially for his own use, and then if it he so vested, but for a moment, provided the husband he not the mere conduit for passing it, the right of dower attaches. Nor is the seisin sufficient when the husband takes a conveyance in fee, and at the same time mortgages the land hack to the grantor, or to a third person to secure the purchase money in whole or in part. Dower cannot he claimed as against the rights under that mortgage.” 4 Kent, 39 m. The law is stated in the same way by Scribner, vol. 1, ch. 12, secs. 39, 40. Where it is said: “The deed and mortgage, although in themselves separate and distinct instruments, nevertheless under the circumstances above stated are regarded as parts of the same contract. They take effect at the same time, and the giving of the deed upon the one part, and of the mortgage upon the other, is held to constitute hut a single act, and to result in clothing the purchaser with the seisin for a transitory instant only. With rare exceptions, this is the established doctrine of the American Courts. Nor is it necessary that the mortgage should he made directly to the vendor. It is sufficient if it he made to a third person for his benefit. And where the mortgage is of even date with the deed, and both instruments are recorded at the same time, the mortgage although not made to the vendor, will he presumed to have
In support of this position many authorities are cited; among them is the case of Clark vs. Monroe, 14 Mass., 351. There the land was conveyed by Andrews and wife to Clark, who by his deed dated and executed at the same time mortgaged the same land to Winthrop in fee, who furnished the consideration for the deed. The Court said: “ It was decided in Holbrook vs. Finney, that a conveyance in fee and a re-conveyance by the grantee to the grantor in mortgage, being considered as parts of the same transaction, did not give to the grantee such a, seisin as entitled his wife to have dower in the granted premises. In the case at bar, the mortgage was to a third party, but still the whole constituted but one transaction. We are not able to view the case in any light different from what it would have presented, had the mortgage of Clark been made to Andrews and wife instead of Winthrop.” In that case the assignee of .the mortgagee had entered and foreclosed under the mortgage, and then assigned the premises to the party in possession, and it was held that the widow cf the mortgagor was not entitled to dower, the seisin of her husband having been instantaneous only. The same is the established law in Maryland. McCauley vs. Grimes, 2 G. &. J., 318; Rawlings vs. Lowndes, 34 Md., 641, 643. We refer also to Gammon vs. Freeman, 31 Maine, 243, and Welsh vs. Buckins, 9 Ohio St., 331.
It is very clear upon the' authorities that such was the nature of his seisin, as the same appears upon the face of the Exhibits X, 7, Z. The legal effect of these exhibits, and the inference to be drawn from them, is that the legal title was conveyed to John Clark only to enable him to execute the mortgage to the Savings Bank- to secure the payment of the purchase money which had been furnished, or loaned to him by the Savings Bank. But this inference may he rebutted or countervailed by proof, showing that the deed and the mortgage did not, in fact, form parts of one and the same transaction. But that they were separate and independent of one another, and that consequently the seisin vested in John Clark was a beneficial seisin.
For the reasons stated, and as it appears that the substantial merits of the cause will not he determined by the reversing or affirming of the pro forma decree of the Circuit Court, and that the purposes of justice will be advanced by permitting further proceedings in the cause,
Cause remanded.
Since the opinion was filed in this case, the solicitors for the appellee have called the attention of the Court to the cases of Heuisler vs. Nickum, 38 Md., 270, and Ahern vs. White, 39 Md., 409, which are supposed to he in conflict with the views hereinbefore expressed, as to the nature of the seisin of John Clark, as the same appears from Exhibits X, Y, Z.
These cases were cited in the argument of the cause, and have not been overlooked hy the Court; hut were not particularly referred to in the opinion, for the reason that the question under consideration in this case did not arise in them, and was not therein decided. In Ahern vs. White, a lease for ninety-nine years was executed, and simultaneously, a mortgage was executed by the lessee to the lessor; it was held that the mortgage was entitled to a priority of lien over a judgment rendered against the lessee, before the date of the lease and mortgage, for the reason that the lease and the mortgage constituted one and the same transaction. It was said by the Court that if, instead of a lease, a deed in fee had been executed, and simultaneously a mortgage hy the grantee, the deed and mortgage constituting one and the same transaction, the wife of the grantee would not be entitled to dower. The decision is therefore quite in accord with the foregoing opinion.
The decision of Heuisler vs. Nickum turned upon the construction of the 3rd section, Art. 64, of the Code, in
Where a conveyance is made to a purchaser and at the same time and as part of the same transaction, the purchaser executes a mortgage to secure the purchase money, it is well settled that the seisin thus acquired by the purchaser is of such an instantaneous or transitory nature, that the dower of his widow does not attach, or in other words, her right of dower is subordinate to the right of the mortgagee. If instead of making the mortgage directly to the vendor, it be made to a third person who furnishes the purchase money, or from whom it is borrowed by the purchaser for the purpose of paying the purchase money, the same principle of equity applies in favor of the mortgagee, provided the whole constituted one and the same transaction; and in such case the rights of the mortgagee are paramount to the right of dower of the wife of the purchaser.