61 Md. 313 | Md. | 1884
delivered the opinion of the Court.
Under this attachment the validity of the deei? from Keeler to Stevens dated the 14th of August, 1882, is •assailed. By this deed Keeler conveyed “all and singular his bills receivable and hook accounts on hand, together with all his property, real, personal, and mixed, where
Before adverting to the proof we shall notice briefly the decisions of this Court as to the law applicable to such cases. In Foley, Adm’r, c. t. a. vs. Bitter, et al., 34 Md., 646, the deed after creating preferences, provided for the payment ratably of such other creditors as should within ninety days execute re Leases, and then for the payment of all other creditors. The Court held that if an assignment be made with the fraudulent intent to delay, hinder, and defraud creditors, and at the time of' its execution be intended to be, and by its terms may operate as, an instrument in aid of the fraud, then it.
Such being the decisions as to the law of the case, the question is, was the Court below right in directing a verdict for the garnishee, although the jury may believe all the evidence offered by the plaintiffs ? and this requires a careful examination of that evidence. They first proved by Stevens, one of the garnishees, and the trustee in the deed, that immediately upon its execution Keeler delivered to him his hooks of account, and eleven promissory notes signed by Seitz and Mertz, of which seven were for $200 each, and four for $100 each, making in all $1800. They are all dated the 1st of August, 1882, and are payable, three of them at nine, three at twelve, three at
They then adduced evidence tending to prove that in the latter part of July, 1882, Keeler, who was then engaged jp business in Baltimore as a merchant tailor, being indebted to the plaintiffs to an amount exceeding $3300, and to divers other persons in various sums, negotiated with Seitz & Mertz, who were carrying on the same business in Washington, and on the first of August effected a sale to them of his stock in trade and the lease of the premises in which he conducted his business, receiving in payment therefor $500 in cash, and eighteen notes amounting to $3030. These notes were all drawn by Seitz & Mertz as makers, payable to the order of Keeler, and dated the 1 st of August, 1882 : but several days afterwards he induced them to give him in substitution therefor other notes for like sums and similar in all respects, save that the new notes were made payable to the order of the makers and were by them endorsed in blank. He gave as a reason for this alteration in the form of the notes that he had agreed to transfer them to the plaintiffs iu part payment of his indebtedness to them, (as they were his principal creditors, his other debts being very small and easily arranged) but did not wish to incur the liability of an endorser thereon. A comparison shows that Stevens, the trustee, received all these notes except seven, and of
They further proved that shortly after the form of the notes had been thus changed, Keeler, in conversation with one McCord, in regard to his affairs, said he would fix things so that his creditors would have to take what he would give them, or nothing; that shortly before the trial he stated to the plaintiffs’ attorney, that on the 11th of August, he had transferred, by delivery, to his wife Martha E. Keeler, four of the five $200 notes which matured on the 4th of December, 1882, and one of the $200 notes which matured on the 4th of May, 1883; that on Saturday the 26th of August, 1882, Keeler was in Washington, and there offered for sale at á considerable discount, the four notes for $200 each, which matured on the 4th of December, but did not succeed in selling them because the persons to whom they were offered had been warned not to purchase them, by Seitz & Mertz the makers, in whose hands as well as in the hands of Stevens, an attachment had been laid on the -lYth of August by. the Manhattan Bank of New York for $50.0; that on the morning of the following Tuesday, (August 29th), Keeler came into the store of Seitz & Mertz, in Baltimore, and handed them a letter, written by Mr. Stevens dated August 28th, in which he tells them he holds $1800 of their notes given to Keeler, and agrees that they shall retain $600 to abide the result of the attachment of the Manhattan Bank; that about the middle of November, .'Stevens stated to one of the firm of Seitz & Mertz, that one of their notes for $200 maturing December 4th, (and which one Turner had offered them in payment of a suit •of clothes he had ordered of them, but which they declined to receive,) had been delivered to him by Keeler for .attorney’s fees; that- on the 28th of December, 1882,
This is all the testimony in the case which has the remotest bearing upon the point in controversy, and we think it quite clear that it fails to show that the trustee formed any combination with the grantor, or aided or abetted him in its perpetration, or was cognisant of any antecedent fraud, if the grantor, in fact, perpetrated any against the rights of Ms creditors. There is no direct evidence that ho ever knew that Mrs. Keeler held any of these notes, or that Keeler was trying to sell any of them in Washington. The inference that he had such know
Again the proof of any antecedent frauds, or fraudulent intent on the part of Keeler the grantor, is very slight. He sold out his stock in trade for $3530, but there is no evidence that he did this secretly or for an inadequate price. The proceeds of sale are all accounted for except the small note for the $30, and the $500 in cash, and even if he applied these sums to the support of his family and himself, it could hardly be said that he had
Upon the whole then, and after a careful consideration of all the proof, and all inferences legitimately deducible therefrom, and in view of what has been said in the decisions to which we have referred, we do not think the testimony is legally sufficient to authorize a jury to find a verdict against the validity of this deed. We shall therefore affirm the judgment in the case in which the attachment was laid in the hands of Mr. Stevens, the trustee.
Judgment affirmed.
But the result must be different in the case in which the attachment was laid in the hands of Seitz & Mertz,
Judgment reversed, and new trial awarded.
(Decided 8th February, 1884.)