Helden v. Hellen, 80 Md. 616

80 Md. 616 | Md. | 1895

Briscoe, J.,

delivered the opinion of the Court.

The appeal in this case is from an order sustaining a demurrer to -a bill in equity. The bill charges that the appellant obtained by deed from Dr. Charles A. Wells and Mrs. Wells, on the 4th of January, 1894, a tract of land situate in Prince George’s County, containing 129 acres ; that Dr. Wells previously purchased the land at sheriff's sale, at the suit of himself against one Thomas A. Mitchell, and on the 27th of June, 1892,obtained the sheriff’s deed; that Mitchell, on the 21st of March, 1890, being on that date indebted unto the appellant’s grantor, executed an intrument of writing purporting to be a deed of trust, and professing to convey unto Wm F. Hellen, one of the appellees, this tract of land, together with other lands, to secure to one William W. Hall an indebtedness of seven thousand dollars, covered by six promissory notes from. Mitchell to Hall.

It further charges that Mitchell was never indebted to Hall in the sum set forth in the pretended deed of trust, or in any other sum; that .the deed of trust is without consideration, was made in prejudice of subsisting creditors, is fraudulent, void, and operates as a cloud upon the appellant’s title. The bill then prays that the deed-of trust be annulled and set aside; that the notes secured by the deed decreed to be brought in and cancelled; that the cloud upon his title to the land be removed, and concludes with a prayer for general relief. And to this bill a demurrer was interposed, which was sustained by the Court, ánd the bill dismissed.

The question, then, presented for our consideration, is whether the plaintiff has presented such a case by the bill as entitles him to the relief he seeks. It is manifest that the appellant is not entitled to invoke the jurisdiction of a Court of Equity for “ the quieting of title and the removal of a cloud therefrom,” because his bill fails to allege that the plaintiff was in the possession of the property at the time the bill was filed; it being well settled in this State, as a general rule, that the jurisdiction of a Court of Equity cannot be maintained to remove a cloud from title unless the party has the legal title and the possession. If the possession is in another, his remedy is by an action of ejectment. Crook v. Brown, 11 Md. 158; McCoy v. Johnson, 70 Md. 490; Livingston v. Hall, 73 Md. 386. And the case of Steuart v. Meyer et al., 54 Md. 454, relied upon by the appellant, is not in conflict with this rule as applicable to a case like the one here presented. Textor v. Shipley, 77 Md. 479.

Nor can there be any question that a creditor who has pursued his remedy at law by an ineffectual execution on his judgment, can invoke the aid of a Court of Equity to have fraudulent conveyances standing in his way and covering up the property, set aside and vacated. This relief is fully established by authority. Trego et al. v. Skinner et al., 42 Md. 430. But the plaintiff here is in no sense a creditor of Mitchell, the alleged fraudulent grantor. The relation of debtor and' creditor between Dr. Wells, the plaintiff’s grantor, and Mitchell, the grantor under the deed of trust, ceased to exist, by the execution' sale, so far as the property sold and sought to be recovered in this proceeding can be affected. The plaintiff acquired the title of the purchaser at the sheriff’s sale, and can assert no better equity than those under whom he claims. Baxter and Wife v. Sewell, 3 Md. 338. And whether the conveyance to the appellee Helden was fraudulent or not can be tried in an action of ejectment. Welde & Logan v. Scotten, 59 Md. 73; Hecht v. Colquhoun, 57 Md. 563; National Park Bank v. Lanahan, Trustee, 60 Md. 510.

(Decided March 26th, 1895.)

In the case of Polk v. Pendleton, 31 Md. 118, it was distinctly held that a party not in possession of the land, but claiming title to it under an execution sale could not maintain a bill to have the adverse title of the party in possession claiming under a tax sale declared void or to have the question of title adjudicated. And in the case of Thigpen v. Pitt et al., 1 Jones Equity, N. C. Reports, 49, the Supreme Court of North Carolina, in treating of a case somewhat similar to the one here presented, held, that where a debtor makes a conveyance of land with intent to defeat his creditors, and they proceed to have the land sold, treating the conveyance as void, one who becomes a purchaser and takes a sheriff’s deed has no right to call on a Court of Equity to have the fraudulent deed brought in and cancelled upon the ground of removing a cloud from his title. “ This,” says that Court, “ would be a novel attempt-to extend the jurisdiction of Equity, and have it try and dispose of a pure legal question.” And in the case of Welde and Logan v. Scotten, 59 Md. 76, this Court held, that an injunction would not be granted to prevent a judgment creditor from selling and purchasing the property under an execution, so as to put himself into a position to test at law, through ejectment, the validity of another’s title alleged to be fraudulent. The question was left to be litigated at law. “ The real question,” said the Court in that case, “ for us to decide is, should he (the judgment creditor), be prevented, by injunction, from putting himself into such position that he may have the question of the bona jides of the appellees purchase tested in a Court of law, through an action of ejectment. We are all of opinion that he ought not and that it was error in the Circuit Court to hold otherwise.”

Whatever, then, may be the decisions elsewhere, no case in this State has gone so far as to maintain a bill in equity under the facts and circumstances of this case.

. We shall, therefore, affirm the order appealed from, sustaining the demurrer and dismissing the bill with costs.

Order affij'med with costs.