22 Md. 58 | Md. | 1864
delivered the opinion of this Court.
This appeal was taken from an order of the Superior Court of Baltimore City, finally ratifying an auditor’s account, which rejected the mortgage claim of John E. Starr, the appellant, and distributed a trust fund to and
The trustee filed a petition praying that the trust might be administered by the Superior Court, gaye bond, notified creditors to file their claims, and reported his sales.
The auditor stated an account by which the balance, after payment of expenses, was applied to the part payment of John E. Starr’s mortgage claim. The appellees who are creditors of Slaney, excepted to the auditor’s account, alleging that'Starr was a partner in the business conducted by Slaney, under the name of the Phoenix Metre Company, and that* his mortgage claim had no validity as against the creditors of said Slaney and said partnership. The cause was remanded to the auditor, with instructions to take testimony in the matter of the exceptions. The testimony taken before the auditor was returned to the Court accompanied by a report, in which the auditor states his conclusion from the evidence to be, that Starr was a partner, rejected his claims and stated another account (marked B,) in conformity with his views of the evidence. The Court adopted the auditor’s conclusion and passed a decree rejecting the appellant’s claim, and ratifying account B.
The main question involved in this appeal is, whether upon the evidence in the cause, the appellant, Starr, is responsible to the creditors as a partner in the business
We think the Superior Court was correct in ratifying account B, as stated by the auditor, and applying the trust fund to the payment of the appellees, who were creditors of the fourth class, to the exclusion of the mortgage claim of the appellant Starr; unless the appellant is right in the proposition asserted in the 4th point of his brief, which is now to be considered. This proposition denies to these objecting creditors the right to contest the validity of the appellant’s mortgage, or to claim against it; because, as they come in under the deed, claiming under its provisions, it is said they must give effect to all its provisions, and cannot claim against any of the trusts therein declared.
In support of this view a number of cases were cited by the appellant, all of them asserting the principle that
Entertaining the opinion upon the evidence, that the appellant was as to the creditors a partner, and as such not entitled out of the trust fund to satisfaction either of his mortgage debt, or his account, t.o the exclusion of the
Decree affirmed and cause remanded.