Richards v. Swan

7 Gill 366 | Md. | 1848

Spence, J.,

delivered the opinion of this court.

The argument of the appellant’s solicitor in this cause, insists, that the decree of the chancellor should be reversed, “because the infancy of the complainants should have been proved, as it was material.”

The account proved by Zachariah Dent, afid passed by the orphans court of Charles county, on the 27th day of June 1843, a duly authenticated copy of which, from the records of said court, was filed in this cause, marked exhibit C, is prima facie evidence to prove, that on the 27th day of June 1843, the said Dent admitted, that Benjamin Swan, and Theo. philus Swan, were minors, that he was their guardian, and that as guardian, he was indebted to them the amount stated in said account. The account is stated as follows, “ Benjamin Swan, Samuel Swan, Theophilus Swan, minors, in account with Zachariah Dent, their guardian.” It is true, exception was taken to this account, as inadmissible in evidence because of its form, and it was insisted that it was not according to the requirements of the law, being raised, or embracing the accounts of the three minors in one statement, when they should have been separate and distinct accounts. We are not aware of any form prescribed by law, and we are well satisfied that there is no provision of law to exclude this account, as an admission, on the part of Dent, that he was guardian to the three Swans, and that as guardian, he owed them the amount, stated by him in this account to be due to them. But it was insisted that these admissions of Dent, were not evidence against Richards and wife, and as they had not admitted these facts in their answers, the admissions of Dent, in his answer, or otherwise, could not be evidence against them. Let it be conceded, that the admissions of Dent in his answer are not evidence against Richards and wife, it by no means follows, that his admissions, made by this account, exhibit C, are not evidence against them. Mrs. Richards claims title under the deed and bill of sale, sought to be set aside in this case,— under Dent, — which deed and bill of sale were executed on the 15th of July 1844. The admissions made in this account were made on the 27th of June 1843, nearly a year before Dent executed the deed and bill of sale to his daughter, Priscilla Richards. It certainly cannot be questioned, that admissions made by him of facts, of which he was conusant, at a time when they were not in dispute, having no interest to make false admissions, and making them to charge himself, are evidence against him, and those claiming under him, by title, subsequent to such admissions. In this account, Dent states these complainants are minors, that he is their guardian, and as such has received the amount, stated in this account to their credit; and as their guardian, has disbursed for them, in their maintenance, &c., the several sums of money therein charged to them, all of which he has verified on oath. It is to be remembered, that these admissions are made at a time when Dent is in the possession of all the estate, real and personal, embraced in the two deeds, which the bill of complaint, in this case, seeks to vacate and set aside, on the ground, that they were made and executed for the purpose of defrauding, and with the view to hinder and delay the complainants, and the other creditors of the said Dent, from recovering their money.

These declarations and admissions, made by Dent the grant- or in these deeds, anterior Lo their execution, certainly are competent and admissible evidence of the facts they tend to prove, against Priscilla Richards, the grantee in said deeds. Une of the appellant’s points in this case, is, that there is no prochein ami in this suit. The allegation in the bill is, that Dent was the guardian of Benjamin Swan and Theophilus Sioan, that the orphans court of Charles county, on the 22nd of Uctober 1844, revoked his guardianship, as is shown by an extract from the record of proceedings of said court, regularly certified by the register of wills of Charles county. The bill in this case was filed by the complainants, by their guardian and next friend, Allison Roberts. The complainants, Benjamin Swan and Theophilus Swan, by John Hughes, their guardian and next friend, filed their petition in this cause, suggesting the death of Allison Roberts, their guardian and next friend, and praying, that John Hughes might be permitted to appear as their guardian and next friend in said suit; on which petition Charles county court, as a court of equity, at November term, 1844, of said court, passed the following order: “Ordered, that the prayer of the within petition be granted, and that John Hughes may appear as the guardian and next friend of Benjamin Swan and others, in their suit against Zachariah Dent and others.” If the next friend die, the court will take upon itself to appoint another. Lancaster vs. Thornton, 1 Ambler, 398. Bracey vs. Sandiford, 3 Maddox 468. This we deem ample authority to sustain the court in this appointment, without argument on our part.

It was insisted, that during the minority, the wards could not sue for the debt due from their former guardian. Chancellor Kent, in Monell vs. Monell, 5 Jno. Ch. R., 297, says, that it is too plain a proposition to stand in need of authorities ; that the infant ward may come into this court by his next friend, and call his guardian to account, or require him to give better-security, if the state of the case should require it. Vide 2 Pr. Wms. 119, Eyre, vs. The Countess of Shaftsbury. A court of chancery will interpose, if guardians give occasion to suspect their behavior. 1 Pr. Wms. 704. Beaufort, vs. Berty. In this case now under consideration, Dent's guardianship had been revoked by the orphans court of Charles county, before this bill was filed. It was urged in the argument, that these complainants could not proceed in this form to vacate and set aside these deeds, because they had not first obtained a lien on the property, by judgment or otherwise. We concur in the opinion of the chancellor in this case, that this was the rule of law, anterior to the act of 1835, ch. 380, with some exceptions; since this act, however, the necessity of a lien as preliminary to this mode of equitable relief, is obviated. Another ground of objection taken to this decree by appellant’s counsel in the argument, is, “'that there is no sufficient evidence of fraud or collusion between the said Zachariah Dent and the Richards, and more especially Priscilla Richards, to justify the decree that was thus rendered. ” There is no ascertained rule of law which fixes and determines what acts or declarations of a party shall, in all cases, be required to establish fraud, but on the contrary, the badges of fraud may, and often do, vary, according to the intellectual capacity and moral depravity of the perpetrator, the end designed to be obtained, and the means by which it is to be' accomplished. In this case, we concur entirely in the opinion of the chancellor, in regard to the character of the deeds from Dent, the father, to Priscilla the daughter. We are satisfied, from the circumstances of the case as disclosed by the evidence, that the party to whom the deeds were made, never did,-or could have paid the consideration, as therein contained,-and that the entire transaction was a scheme to defraud the grantor’s creditors. The decree of the chancellor is affirmed with costs, and the case remanded for further proceedings.

DECREE- AFFIRMED, AND CAUSE REMANDED.