44 Md. 632 | Md. | 1876
delivered the opinion of the Court.
It appears that the real estate of John Thawley, deceased, was, by proceeding on the law side of the Circuit Court for Caroline County, in 1856, sold by Commissioners under the descent laws of the State, and that Edgar Plummer, who had married one of the daughters of the intestate, purchased that part of the real estate known as the “Home Farm,” being lot No. i, for the sum of $5,981.25. Plummer complied with the terms of sale, by making a small cash payment, and giving bond with sureties for the balance of the purchase money. This sale, with others
Plummer was collector of State and County taxes in Caroline County, for the years 1868, and 1869, and the complainants were his sureties on his bonds; and in September, 1871, he executed a power of attorney authorizing a judgment to be confessed in favor of the complainants for $4,500, to indemnify them against loss. The judgment was entered on the 27th of September, 1871. The complainants were subsequently sued on the bonds, and judgments recovered against them, which they have been required to pay.
On the 11th of April, 1872, and before all the purchase money had been in fact paid, Mrs. Plummer, in her own name, and without the joinder of her husband, filed a petition in the Circuit Court for Caroline County, setting
The complainants filed their bill to have the order, and deed made thereunder, set aside as against them and other subsisting creditors of the husband. The husband and wife, in their answer, simply reiterate and rely upon the statement in the petition, and deny that the deed was in fraud of creditors.
The petition and order procured thereon being entirely ex parte, of course, they do not in any manner conclude or hind the complainants. Whatever rights they may have had at the time as creditors of Edgar Plummer, remain unaffected by the order, or the deed made in pursuance thereof. Brooks vs. Brooks, et al., 12 Gill & John., 306; Amer. Ex. Bank vs. Inloes, 7 Md., 380; McClellan vs. Kennedy, 8 Md., 231; Keighler vs. Ward, 8 Md., 254 ; 2 Taylor’s Ev., 1440, sec. 1495. The question is, could the complainants have successfully resisted the application of the wife, it they had been made parties to her petition. And as to that question we think there can be no doubt.
Such being the right of the husband in the money derived from the sale of the real estate descended to the wife, and the farm having been purchased by the husband in his own name, and on his own credit, and the sale having been confirmed to him by the Court, the question is, upon what reason or principle can the claim of the wife now made be maintained as against the creditors of the husband ?
It may be conceded that a valid gift by husband to his wife, after marriage, may be made, and that Courts of equity will uphold such gifts as against the husband and those claiming under him ; but as against subsisting creditors of the husband, if it be to their prejudice, such gift
But here there is an attempt to uphold the transfer of the estate from the husband to the wife, through the agency of the Court, by proving a consideration ini the form of a secret parol trust, existing between the husband and wife from the time of the purchase by the husband. This attempt must fail. It would he, as said by Chancellor Johnson, in Brooks vs. Dent, 1 Md. Ch. Dec., 527, establishing a precedent of the most pernicious and perilous character, to allow these secret trusts between husband and wife to be set up to defeat the rights of creditors. Where they rest in parol, as in this case, they are in the teeth both of the letter and spirit of the Statute of Erauds, and whenever Courts of justice are invoked to execute them there is always danger of the very consequences that it was the object of the Statute of Erauds to prevent. The complainants have excepted to all such portions of the evidence as tend to prove such trust, and we think the exception well taken, and must therefore be sustained.
But it is contended by the counsel of the appellants that this case stands upon the footing of a resulting trust, and therefore excepted from the operation of the Statute of Erauds. The principle*of a resulting trust is a very simple one, and if it were clearly shewn that this case presented the facts essential to the establishment of such a trust, the wife might, possibly, he entitled to the benefit of it, even as against the creditors of the husband. Where one party purchases an estate, and pays the money therefor, hut takes the deéd in the name of another, a trust results by construction of law to the party who actually paid the money; and if the nominal purchaser refuses to convey or execute a declaration of trust, the payment of the consideration money may be proved by parol, as before the Statute of Frauds. The payment of the money is the foundation
As to the mortgage of Plummer and wife to the “ Working-Men’s Permanent Building and Loan Association of Talbot County,” that is subject only to the prior liens existing against the property. It was competent for the mortgagors to make the mortgage whether it was only of the equitable estate in the husband, or of what was claimed to be the legal estate in the wife. The mortgage is a good security as against all except those creditors whose claims may have become liens by judgment or otherwise, prior to the date of the mortgage ; and in the distribution of the proceeds of sale of the property, the mortgagees will be entitled to that priority.
It follows from what we have said that the decree appealed from must be affirmed.
Decree affirmed.