Peters v. Cunningham

10 Md. 554 | Md. | 1857

Le Grand, C. J.,

delivered the opinion of this court.

We do not consider it necessary to decide all the questions pronounced upon by the court below, because, in any aspect of the case, we think the judgment ought to stand.

The case is simply this: The plaintiff established his claim against the defendants; and, also, that the garnishee, by a deed of trust executed to him by the defendants, came into the possession of the proceeds of the sales of certain property. The deed is admitted to be void, therefore, the only question practically of importance involved in this controversy is: whether the pláintiff be entitled to a condemnation in the hands of the garnishee of the fund, the garnishee having a claim against the defendants to a greater amount than the fund? It is not denied, that if the garnishee had obtained possession of the fund in the ordinary course of trade, and not by virtue of the deed of trust, that under the facts disclosed in the record, the plaintiff would not be entitled to a condemnation; but, it is insisted, that inasmuch as the acquisition was had through the instrumentality of the deed, he cannot claim to hold the fund against the plaintiff, for, although the deed be void as against the creditors, it is nevertheless binding on the garnishee as a party to it. This suggestion is more plausible than sound, and not at all available for the purpose for which it has been made in this.case. The fund came into the hands of the garnishee for specified purposes, none of which included an appropriation of any part of it to the payment of the claim of the plaintiff, unless he should release as the deed provided. This he did not do, and therefore cannot be entitled to a preference over the garnishee, who, like himself, is a creditor of the defendants. If the deed were not void, the plaintiff could have no standing in court, but being confessedly void, the garnishee can only be considered a debtor of the defendants, to the amount of the fund against which he has the right to set-off his own claim. We think the court properly overruled the objection to a portion of the testimony in response to the fifth interrogatory. See Devries, et al., vs. Buchanan, et al., Ante, 210. In relation to the objection, that the best evidence of the existence of releases had not been furnished, it may be remarked, that it is a question wholly immaterial, inasmuch as the establishment or non-establishment of the fact, could not rightfully influence the decision of the case.

Judgment affirmed.