81 Md. 644 | Md. | 1895
delivered the opinion of the Court.
A bill in equity was filed by Eleanor Taylor, widow, and Thomas R. Jenifer and his wife, against Charles J. Moore and his wife, Robert Moore and Charles J. Moore, trustees, and Carl Vietor. Robert Moore was dead at the time the bill was filed. The object of the bill was to obtain a decree for the sale of certain real estate for the purpose of partition among the heirs of Ann Moore, deceased, who was the mother of Mrs. Taylor and Mrs. Jenifer and of Charles J. Moore. A decree for sale was passed by the Court, and Charles J. Moore appealed. •
We will state the facts as they appear to us from the pleadings and proofs. Mrs. Ann Moore died in eighteen hundred and seventy-three, seized and possessed in fee-simple of certain real estate in Baltimore County. She left surviving her Robert, her husband, and two daughters, Mrs. Taylor and Mrs. Jenifer, and two sons, William H. and Charles J. On the second day of April, eighteen hundred and eighty-eight, William conveyed all of his property, real and personal, to Robert, his father, and Charles, his brother, in trust, to pay the whole income of the property to himself during his natural life, and upon his death to hold all of the property upon such trusts as he should appoint by his last will and testament, and in default of such
The written agreement, which the heirs made for a sale by auction, was valid and competent. A question is made as to the binding effect of the purchase upon Mrs. Jenifer, she being a married woman. The fourth section of the Statute of Frauds enacts that contracts for the sale of land shall be in writing, and “signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. ” A marked difference is to be noted between the language thus used, and that of the first section, in which it is required that certain estates in land shall be made or created by writing “signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing.” The text-books and decided cases have directed particular attention to this difference between the two sections and to its necessary consequences. Browne on the Statute of Frauds states the result of the cases to be that the agent for signing may in all the cases enumerated
It is, however, argued that the title to the land was not good. It appears that in September, eighteen hundred and ninety-one, John Moore and Charles J. Moore, being partners in business, conveyed all their property to Carl Vietor, in trust, for the benefit of their creditors ; and that on the tenth of September, eighteen hundred and ninety-two, the Circuit Court of Baltimore City passed an order discharging the trustee and directing him to reconvey the trust property to the grantors free from the trusts created by the deed to him. After the passage of this order in November, eighteen hundred and ninety-two, Hilton and Sibbey filed a .claim in the cause; on the thirty-first of July, eighteen hundred and ninety-three, Hilton and Sibbey dismissed their claims, and on the same day the Court passed an order confirming the previous order of reconveyance, which had been passed in September, eighteen hundred and ninety-two. On the first day of August, eighteen hundred and ninety-three, Carl Vietor reconveyed the trust property to John and Charles Moore, and on the seventh day of the same month the deed was recorded in Baltimore County.
It is also said that as no letters of administration have been granted on the estate of William Moore, that any creditors which he may have had at the time of his death will have a lien on the portion of the land which was conveyed by his deed to Robert and Charles’Moore. It must be noticed that there is no proof whatever that William Moore was indebted to anybody at the time of his death. It is merely a surmise that such might be the case. But supposing that he were indebted, this deed conveying his property has been recorded among the land records of the county for nearly seven years, and no claim has been made by‘anyone alleging himself to be a creditor. Under these circumstances any bona fide purchaser of the land from William Moore’s grantees without notice of any indebtedness would have a most complete and meritorious defence against any creditor. The case is stronger in reference to any supposed indebtedness by Mrs. Ann Moore. She died in April, eighteen hundred and seventy-three. According to the law then existing, her surviving husband was entitled to act as her administrator without taking out letters. Code of 1860, Article 93, section 32 ; Willis v. Jones, 42 Md. 422; Mobray v. Leckie, 42 Md. 474. Subsequent legislation has made a change in the law in this respect. Acts of 1878, chapter 268 ; 1882, chapter 477. If Mrs. Moore had any creditors, their resort in the first instance was against her
Our conclusion is that the title to the land in question is good, and that Mrs. Jenifer and Mrs. Taylor are bound by their purchase at the auction sale, and that they are responsible for the amount at which it was sold to them. Consequently the proceedings for sale for the purpose of partition cannot be maintained and the decree must be reversed and the bill dismissed.
Decree reversed and bill dismissed voith costs in both Courts.
A motion for re-argument was subsequently made, and in disposing of the same,
delivered the opinion of the Court.
A motion for a re-argument has been filed on the ground that one of the appellees has died since the hearing, and before the decision.
The question is settled by Article 5, section 75, of the Code. It is there enacted: “When a case is under rule-argument in the Court of Appeals, and a party shall die having an attorney in Court, the Court of Appeals shall give judgment to have the same effect as if the party were alive, &c., &c.” The section is a codification of the Act of 1806, chapter 90, section 11. Uuder the present Constitution all causes stand for argument at the first term after the transmission of the record, and therefore the necessity for a rule-
The motion must be overruled.
Motion overruled.
(Decided December 13th, 1895.)