Scott v. Scott, 17 Md. 78

Scott v. Scott

17 Md. 78 | Md. | 1861

Bartol, J.,

delivered the opinion of this court.

We think the decree, in this case, ought to be affirmed. The objection, that the cause was not regularly for hearing, under the rules of the circuit court at the April term 1859, when the decree was passed, is without any force; because the rules of that court, regulating the subject, are not set out in the record, and besides the decree states that, “the cause stood ready for hearing according to the requirement of the thirty-seventh rule, and we must presume all prerequisites-were complied with.” Rigden vs. Martin, 6 H. & J., 407.

In the view which we take of the case, it is not necessary for us to express- any opinion upon the exceptions to the commission and the testimony returned therewith, and the order of the court overruling these exceptions. Without reference to the evidence, the complainant was entitled to the decree-upon the pleadings in the cause. The case made by the bill was one clearly entitling the complainant to the relief prayed, and its material facts were admitted by the answer,, which set up in defence new matter in avoidance, that was not sustained by any proof. Even if we are to consider the-replication as admitting that Polydore E. Scott, (the father of complainant,) was indebted at the time of his death to the respondent,,still we concur with the judge of the circuit court in the opinion, that such a debt is no set off, either in law or equity, to the debt due from the respondent to the complainant,, to recover which this bill was filed. The authorities re*91ferred to by the learned judge in his opinion, fully sustain this conclusion. The general principles which govern the rights of parties as to set off, are the same in courts of law and etpiity. 3 Md. Ch. Dec., 71. 4 Md. Ch. Dec., 325. 12 G. & J., 36. Ibid., 397. 3 Mason, 145. In the case of Lindsay vs. Jackson, 2 Paige, 581, this subject is elaborately considered. The chancellor, on page 582, says: “As a general rule the court of chancery followed the rule of law, and after the statute had permitted set offs, to a certain extent in suits at law, this court also adopted and acted on that principle. But the court of chancery, even before the statute, recognized the principle of natural equity, and acted upon it in cases where the law could not give a remedy in a separate suit, in consequence of the insolvency of one of the parties.” “And at this day, if the court finds a case of natural equity, not within the statute, it will permit an equitable set off, if from the nature of the claim, or from the situation of the parties, it is impossible to obtain justice by a cross-action.” A number of cases are cited by the learned chancellor, and although we approve of the decision in Lindsay vs. Jackson, and of the general reasoning upon which it is based, yet, neither that case, nor any to which we have been referred, has extended the right of equitable set off to such a case as the present. The chief ground upon which it has been attempted to be sustained in the argument is, that the complainant, as the heir at law of the respondent’s •debtor, has been in possession of the debtor’s lands, receiving the rents and profits thereof, which may eventually be made ■answerable for the respondent’s claim. But it appears from the answer that proceedings have been instituted by the respondent and other creditors of Polydore E. Scott, for the purpose of establishing their claims, and obtaining a decree ■for the sale of the lands which have descended to this complainant. Those proceedings are now pending, and it is competent for the creditors, if necessary for their rights, to •subject to their claims, not only the lands of Polydore E, Scott, but also the rents and profits which have come to the 'hands of the heir since his death. Warfield, et al., vs. Owens, 4 Gill, 379

*92(Decided March 26th, 1861.)

Whatever equilable claims the respondent may have against Polydore E. Scott, deceased, may be established and secured by that proceeding, and he has no right to ask that they be investigated and allowed as a set off, to the separate and distinct claim of the complainant in this cause, or that the complainant shall be postponed and delayed in the recovery of her debt, until the determination of the other suit.

Decree affirmed, with costs to the appellee.