Gore v. Condon

87 Md. 368 | Md. | 1898

Briscoe, J.,

delivered the opinion of the Court.

This is an appeal from a judgment for the defendant upon a demurrer to the plaintiff’s declaration. The cause of action set forth is of an unusual character and we will state it in the language of the declaration itself, which is as follows : “And the said Martha E. Gore, by her husband and next friend, Lewis D. Gore, of Baltimore City, in the State of Maryland, sues Levi Z. Condon, of the city and State aforesaid : For that on or about the eleventh day of May, 1889, the said defendant fraudulently obtained from one Daniel Frazier a fraudulent and void mortgage for the sum of six hundred dollars, upon the property of the plaintiff, situate in the city of Baltimore, on North Gilmor street, near Presstman street, which said fraudulent and void mortgage contained a consent clause for an ex parte decree, the said Condon well knowing at the time of obtaining said fraudulent mortgage that the property upon which it was obtained, and which was described therein, was the property of the said Martha Ph Gore, and not the property of the said Daniel Frazier, the mortgagor therein, and that said mortgage was fraudulent and null and void as to the said plaintiff and her said property therein described.

“Yet, notwithstanding the said defendant knew that the said mortgage was fraudulently obtained, and was fraudulent and void as to the said plaintiff, the said Martha E. Gore, and her said property therein described, yet, nevertheless, to further carry out his fraudulent design, the said defendant did, on or about the — day of-, 1894, file his petition and said fraudulent mortgage in the Circuit Court of Baltimore City, alleging said mortgage to be in default, and under the said consent clause therein obtained an ex parte decree from said Circuit Court for the sale of the plaintiff’s property, Charles W. Nash, Esq., of the Baltimore City bar, being appointed trustee by said decree to make said sale, and on or about the 13th of June the said defendant actually caused said trustee to advertise said property for sale, and he, the said defendant, notified the said plaintiff’s tenants in the property to pay no more rents to the plaintiff; that in order to save her .said property from sale as aforesaid, under said fraudulent mortgage and decree so fraudulently obtained as aforesaid, was compelled to file her bill of complaint in said Circuit Court aforesaid (which she did on or about the 20th day of June, 1894), setting forth the fraudulent character of said mortgage, and praying for an injunction to restrain said sale aforesaid, and that said mortgage be decreed to be fraudulent and null and void as to her and her property therein described ; the said writ of injunction did issue and was served upon the defendant, Condon, and the said trustee, and remained in force until on or about the 3rd day of June, 1895, during all which time the said plaintiff received no rents or profits from her said property on account of the said defendant notifying the tenant in said property to pay her no rents ; and during all which time the taxes, water rents and ground rents were accumulating, when, after hearing said cause, said Circuit Court dismissed the plaintiff’s bill of complaint with costs to the defendant, from which said last decree the said plaintiff, on or about the 5th day of June, 1895, took her appeal to the Court of Appeals of Maryland, the said defendant, Condon, having full knowledge of said appeal. That notwithstanding the said defendant, Condon, had actual knowledge of the fraudulent character of said mortgage, and that the property therein described was the property of the said plaintiff, Martha E. Gore, and that there was an appeal pending in said Court of Appeals from said decree dismissing her bill of complaint, yet pending said appeal, he seized and sold said property under said ex parte decree; whereupon all her tenants moved out without paying her any rent, and leaving said ground rents, taxes, water rents and other expenses unpaid. That after arguing said appeal in the Court of Appeals, the said Court reversed the decree of said Circuit Court of Baltimore City, and decided the said mortgage from said Frazier to said Condon to be fraudulent and void as to the said plaintiff, the said Martha E. Gore, and her said property, and remanded said cause to said Circuit Court, the said defendant, Levi Z. Condon, to pay all costs above and below; all which more fully appears from the opinion of said Court of Appeals, recorded among the cases of said Court designated to be not reported, liber —, folio —, October Term, 1895 ; a copy of which opinion, taken from the “ Daily Record,” of November 25th, 1895, is hereto attached as part thereof.

“And said Circuit Court of Baltimore City, in pursuance of said opinion and decree of said Court of Appeals, passed a decree setting aside said sale made pending said appeal aforesaid, making said injunction perpetual and declaring said mortgage null and fraudulent as to the said plaintiff, Martha E. Gore, and her property. That at the time of advertising the said property, and of the defendant, Condon, notifying her tenants to pay her no more rent, the plaintiff had upon the premises three good prompt paying tenants who had occupied the premises for some time previous to said advertising and notice aforesaid, to-wit, a tenant in the dwelling-house paying twenty dollars per month, a tenant in the two rooms over the stable paying five dollars per month, and a tenant on the ground-floor of the stable paying two dollars and fifty cents per month rent, all of whom, upon the sale of said property, moved out, paying the plaintiff no rent and leaving the property in the hands of the defendant vacant (unless tenants he may have put in), the said defendant not even paying the taxes, ground rents and other expenses during all the time he was in possession thereof.

“ And the plaintiff claims she has been damaged by the unlawful trespass upon her property and advertising the same for sale, and sale thereof, and for the disgrace and disrepute into which she was brought on account of said advertising and sale, for the loss of her rents and profits from the time the defendant notified her said tenants to pay her no more rents, and for her large expenditure of money in securing possession of her said property, in paying witness’ per diem and mileage, besides her own loss of time and expense, and for the depreciation in the value of her property from neglect and non-occupancy while in the hands of the defendant, and other damages to the said plaintiff and her property from and by the unlawful acts and doings of the said defendant in this behalf.”

It will be seen that this is not an action for the malicious prosecution of a civil suit without probable cause. Such an action is generally maintainable as was held by this Court in McNamee v. Minke, 49 Md. 133, where there has been an alleged malicious arrest of the person or a groundless and malicious seizure of property or the false and malicious placing of the plaintiff in bankruptcy or the like. But such suits are not, however, encouraged, says this Court in Clements v. Odorless Excavating Apparatus Company, 67 Md. 463, because the law recognizes the right of every one to sue for that which he honestly believes to be his own and the payment of costs incident to the failure to maintain the suit, is ordinarily considered a sufficient penalty. In an action for malicious prosecution or the abuse of process the plaintiff must allege and prove that the suit was instituted maliciously and without probable cause. The declaration before us does not aver malice or the want of probable cause, and does not count upon the malicious prosecution of a civil suit. No suit was in fact instituted against the plaintiff. It alleges a wrongful interference by defendant with the property of the plaintiff, and is an action on the case for consequential damages.

The allegations of the declaration, which are admitted by the demurrer, show that the defendant caused plaintiff’s tenants to refuse .to pay to her their rents and caused other injuries to plaintiff and that the defendant did intermeddle with property of which plaintiff was in possession with the right to possess, and which defendant knew to belong to the plaintiff. The question then is, whether the conduct of the defendant under the circumstances stated in this case constituted such a wrongful act, as will give rise to an action of damages. It would certainly seem just that if a man knows that certain property is not his, but another’s, and that he acquired an apparent title to the same by fraud and that the title is void, then his intermeddling with such property to the damage of the real owner, is an unlawful act, for which a remedy should be afforded. To deny a remedy to the aggrieved party in such cases would be a reproach to the law. The mere fact that the interference with another’s property was done under a claim of right and title is no defence, especially when, as in the present case, he knows that his title is fraudulent and void. An action has been held to lie in many cases of such interference when the parties have acted in good faith and under an honest mistake. In Levi v. Booth, 58 Md. 318, this Court regarded it “ as clear law, that a person is guilty of a conversion who intermeddles with the property of another and disposes of it, and it is no answer that he acted under authority’from some other person who had himself no authority to dispose of it.” No good reason can be given why the same'principle is not applicable to such acts of interference with a party’s ownership of land as are described in the present case.

The right to maintain the action can also be sustained, upon the doctrine that a man who induces one of two parties to a contract to break it, intending thereby to injure the other or to obtain a benefit for himself, does the other an actionable wrong. Lucke v. Clothing Cutters, 77 Md. 398; Angle v. Chicago, St. Paul, &c., Railway, 151 U. S. 14; Lumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6 Q. B. D. 333; Walker v. Cronin, 107 Mass. 555.

But it is manifest that the declaration in this case is bad for misjoinder. It states two distinct and independent causes of action in one count, one for damage for the interference with plaintiff’s property-right and the other for damage to reputation. N. C. Ry. Co. v. Mills, 61 Md. 358; Cheetham v. Tillotson, 5 Johnson, 430; Stirling v. Garritee, 18 Md. 474; B. & O. R. R. Co. v. Ritchie, 31 Md. 198.

(Decided April 1st, 1898).

As we have seen the first is a good cause of action, but the second, which seeks to recover for “the disgrace and disrepute into which plaintiff was brought on account of the advertising and sale,” &c., is clearly demurrable. It is well-settled that no action will lie for words spoken or written in the course of giving evidence or for words spoken or written in the course of any judicial proceeding. Bartlett v. Christhilf, 69 Md. 225.

We are, therefore, of opinion that the demurrer to the declaration was properly sustained, and the judgment will be affirmed, but inasmuch as the declaration contains a good cause of action, the cause will be remanded, with leave to the plaintiff to amend, the costs to abide the result of this suit.

Judgment affirmed, and cause remanded, with leave to the plaintiff to amend, the costs to abide the result of this suit.