56 Md. 551 | Md. | 1881
delivered the opinion of the Court.
The bill was filed by the appellants, to restrain the appellee, trustee of the estate of Mary Meredith, now deceased, from selling certain real estate, the separate estate of the wife, under a power of sale in a mortgage, executed by her husband and herself, to one A. J. B. Almoney, to secure a loan of $500, and which was assigned to Mary Meredith, after being reduced by a payment, to the sum of $350, as of December 12th, 1868.
The ground for the relief prayed, was that the appellant, Edward N. Spencer, has a claim against the estate of the said Mary Meredith, which was in course of settlement in the Circuit Court for Baltimore County, in equity, amounting to the sum of $405, as of September, 1875, and which had been.allowed him by the auditor's account, and which the complainants ask to have allowed as a set-off against the mortgage debt; and that there was also
The answer admits the allowance of the claim of $405, against the estate of Mary Meredith, in the Circuit Court for Baltimore County, in equity, that the medical bill was filed with the claim of the said Spencer, and was disallowed by the auditor, and is now barred by the order of the Court passed upon the said account; denies the right to have the $405 set off as against the mortgage debt, on the ground that the latter is the debt of the wife alone, and the claim is due the husband, and therefore, in different rights ; and that the defendant holds the note of the said Spencer for $600, givén to Mary Meredith, and claims the right to have the $405 applied to that note.
The complainants in order to maintain the right to have the $405 applied as a set-off to the mortgage debt, undertake to show that the mortgage debt while purporting on its face to be a loan to the wife, Rosalba Spencer, was in fact a loan for the use and benefit of the husband Edward ; and that, therefore, he being the principal, and she but a surety, he is entitled to have this claim set off, as both debts stand in the same right. It is objected that Edward hi. Spencer, by whom it is sought to show that the mortgage debt was his debt, being for money borrowed to be put in his business, his wife having no interest in it, is not a competent witness, Mary Meredith being dead. But the person from whom the money was borrowed, the original mortgagee, was A. J. B. Almoney, and not Mary Meredith, and therefore the question does not come within the exception contained in the statute
Treated therefore as the debt of Edward N. Spencer, the right to have the debt due by his creditor set off against the debt due by him and his surety, is well settled. Ex parte Hanson, 12 Vesey, Jr., 346; Concord vs. Pillsbury, 33 N. H., 310; Mahurin vs. Pearson, 8 N. H, 541; Bechervaise vs. Lewis, 7 L. R., (Com. Pl.,) 372; Hollister vs. Davis, 54 Penn., 508; Winston vs. Metcalf, 6 Ala., 760; Waterman on Set-off, 287, (sec. 237.)
This is so even at law; but in equity especially will the principle be applied. Smith & Talbott vs. Donnell, 9 Gill, 89; Lane vs. Fallen, 16 Md., 352.
The point presented by the appellee, that this application of set-off is in conflict with the law protecting the property of the wife from the debts of the husband, is untenable. It is not a case of applying the property of
The bills paid Dr. Smith stand on the same footing. They are not proven however. The only evidence is the testimony of Edward N. Spencer. But he is not a competent witness, the party against whose estate the claim is made being dead. The rejection of these claims by the ■auditor is not conclusive. There does not appear to have been an order of Court rejecting them. They were simply omitted from the account by the auditor, for want of proof. The practice is to allow further time for proof before final rejection. And that we are to presume the Court would allow if applied to. That being so, the claim is still a subsisting and valid cause of action, and therefore capable of being pleaded as a set-off, and if sustained by proof should be allowed; and the complainants should therefore be allowed to. take further proof in support of the claim.
In regard to the right insisted on by the defendant to have Spencer’s claim set off as against his note for $600, held by the defendant as trustee of Mary Meredith, rather than against the mortgage debt, it is only necessary to
The claim of $405 is therefore to be. allowed as a proper set-off to the mortgage debt; and the bills of Dr. Smith are to be so allowed if sustained by proper proof; for the purpose of allowing which to be taken, and of having a proper adjustment of the account between the parties, the cause should go to the auditor, and upon the ascertainment of the amount due upon the mortgage debt, and the bringing in of the same by the complainants, they will he entitled to a decree discharging and releasing the mortgage.
It follows that the order below must be reversed, and the cause remanded in order that further proceedings may be had in accordance with the views here expressed.
Order reversed with costs, and cause remanded.