State ex rel. Barnard v. Gott

44 Md. 341 | Md. | 1876

Brent, J.,

delivered the opinion of the Court.

This suit is brought upon the trustee’s bond of Adkisson, who had been appointed trustee by the Circuit Court of Baltimore City, to sell certain leasehold property, of which Mrs. Susan J. Barnard, of Allegany County, had died possessed, and to which her children were entitled in remainder.

The bond given by Adkisson is also signed by Jackson C. Gott, the appellee. The question has been argued as to whether Gott, in this suit, is to be regarded as a security only, and is to have extended to him the rules of law applicable to parties standing in that capacity. That he is security upon the bond in question, and is to be treated as such, there can be no doubt. Adkisson is the sole trustee, and the recitals in his bond, taken in connection with the law requiring-trustees to give bond with security, are quite sufficient to establish the fact that Gott signed it as security, and became bound in that capacity for the faithful performance of the trust by Adkisson.

The appellant, Nathaniel Barnard, being one of the children of Mrs. Susan J. Barnard, instituted this suit against the trustee’s bond to recover the amount due him for his share of the property sold by the trustee. To his right of recovery the appellee, Gott, interposes a receipt under seal executed by Nathaniel Barnard, and also a promissory note of Adkisson at six months to Barnard for the balance due him. No question of fraud arises in the case, nor is there any disagreement as to the facts.

The receipt and note were mutually interchanged between the parties — the note being retained by Barnard and the receipt sent or handed to Adkisson. After the maturity of the note, it not being paid by Adkisson, the note was returned to him and the receipt to Barnard. Both these papers were afterwards destroyed — and secondary evidence admitted of their contents.

If their effect was to discharge the liability of the security, G-ott, upon the bond, it is very clear that their subsequent destruction by Barnard and Adkisson, some six months after, could not have the effect of restoring it.

The receipt was as follows :

“ Barnard & al. 1 vs. > Cir. Ct., Balto. City— Barnard & al. )

Received-1873 from W. H. H. Adkisson, trustee, in the above mentioned cause, the sum of one thousand and thirty-three dollars and thirty-five cents, ($1033.35,) being my share in full of net proceeds of sale of Baltimore street property, as shown by auditor’s report filed in said cause. Witness my hand and seal.

(Signed) Nathaniel Barnard, [seal.]

Test:

(Signed by witness.)”

The security, Grott, contends that this paper, being under seal, is conclusive against the appellant’s right of action, and that it is virtually a discharge, of his liability as security upon Adkisson’s bond.

Instruments under seal are presumed to have been entered into after the most careful deliberation, and an importance and weight is thereby given to them, which they would not bear if they were unsealed. Instances of the difference in the rules of law that are applicable to the one and the other might be cited almost without number. In Story on Contracts, secs. 996 and 997, it is said “a release under seal, if given to one of several debtors, jointly liable, enures to the benefit of all. But a release by parol to one debtor will not operate as a discharge to other debtors jointly liable, and can only be pleaded by the debtor to whom it was given. ***** But if a release be given under seal to one of two joint obligors with a parol agreement by the party not released, that he should remain liable, it is a discharge of both parties ; because the parol agreement cannot avoid the legal effect of the release under seal.” So a seal imports consideration and the obligation resting under it, can generally be discharged only by an instrument, under seal. A part of a debt is not a satisfaction of the whole, yet if a part is paid and “thp obligee or feoifee make an acquittance under his seal in full satisfaction of the whole, it is sufficient, by reason the deed amounteth to an acquittance of the whole.” 2 Coke Lit., 67 (m.)

The rule at common law in regard to receipts under seal is unquestioned. In 1 Go. Lit., 12 (m.,) it is said, “if a rent be behind for twenty years, and the lord make an acquittance for the last that is due, all the rest are presumed to be paid; and the law will admit no proof against this presumption.” In note 2 (Ibid,) Mr. Butler, commenting upon this passage, says: “This is to be understood of an acquittance under hand and seal, which is an estoppel, for if it be not under seal, the law will admit of proof to the contrary.” In Gilbert on Ev., 157, discussing the difference between presumptions, that are violent or only probable,” it is said, “ If a man gives a receipt for the last rent the former is presumed to be paid, because a man is supposed first to receive and take in debts of the longest standing ; especially if the receipt be in full of all demands, then -it is plain there were no debts standing out; and if this be under hand and seal, the presumption is so violent that the law admits of no proof to the contrary.” And so in Best on Ev., sec. 306, “A receipt under hand and seal is conclusive evidence of the payment of money.” And again, in sec. 406, “A receipt under hand and seal is the strongest evidence of payment, for it amounts to an estoppel, conclusive on the party making it.”

We have not been referred to any satisfactory authority in which this doctrine has been overruled. The cases cited, except that of Jones vs. Ward, 10 Yerger, 166, were all cases of receipts embodied in deeds, acknowledging in the usual form the receipt of the money expressed therein as the consideration. These cases rest upon the doctrine made peculiarly applicable to that character of receipts and are not applicable to the case now before us. They form exceptions to the general rule and are so considered. In the case in 10 Yerger above referred to, the general language used by the special Judge who sat in that case, is to the effect, “ that a receipt whether under seal or not, may he explained by parol testimony.” But in examining the cases referred to by him, it is manifest that he did not intend the language used should be taken in the broad sense that is attributed to it. The question in that case was the admissibility of evidence, to show that a particular debt sued upon, was not included in the general terms of a receipt under seal. This evidence -was held to be admissible, and the ruling is in accordance with the authorities. The same question was passed upon by Shaw, C. J., in West Boylston Man. Co. vs. Searle, 15 Pick., 229. There it was attempted to show that the cause of action was not properly included in a deed of release. But the evidence was held to be inadmissible, because the note was included in the very terms of the release, and there was “no latent ambiguity and nothing to be explained by parol evidence.” If on the contrary the terms of the deed had left it wholly doubtful whether the note was or was not included, it was held the testimony would be admissible.

In reference to the receipt before us there can be no question as to the indebtedness, which it is intended to coyer. It plainly and unmistakably refers to the debt which, this action is brought to recover, and presents totally a different question from that decided in 10 Terger.

(Decided 8th March, 1876.)

After a careful examination of the authorities we feel hound by the common law rule, and must hold that the appellant is concluded by the receipt he has given under his hand and seal, and that he cannot sustain this action against the appellee, Gott.

The decision of this point removes any occasion for an examination of the other questions presented by the prayers.

The judgment of the Court below will he affirmed.

Judgment affirmed.