9 Md. 480 | Md. | 1856
delivered the opinion of this court.
The case of Bowie vs. Stonestreet, 6 Md. Rep., 418, conclusively settles that a contract, which can be enforced in a court of equity, may be entered into between a husband and wife, for the transfer of property from the former to the latter, for a bona fide and valuable consideration.
The interest which Mrs. Holliday had in the mortgage, whether as respects her right of survivorship, or her equitable claim to be allowed a separate provision for her maintenance, was sufficient to form the basis or’ consideration for a contract with her husband, like that set out in the deed of trust, and which is alleged to have constituted the consideration therefor.
This being true, the next question which arises is, whether the consideration set out in the deed of trust from Holliday, for the benefit of his wife, is to be regarded as prima facie true, until contradicted by proof offered by the party who assails the deed? We think our own authorities have settled this question affirmatively. The cases of Faringer vs. Ramsay, 2 Md. Rep., 375, and Glenn vs. Grover, 3 Md. Rep., 212, clearly establish, that deeds themselves are prima facie proof of what the consideration was upon which they were
While I may not like the law which sanctions such transactions, I feel nevertheless bound to acknowledge its binding force upon this court.
We do not concur with the appellants’ counsel, that this deed is void as to creditors, because of the absence of the affidavit as required by the act of 1846, ch. 271, and its supplements, which relate to bills of sale and mortgages. It is said by the appellants, that inasmuch as the deed in this case embraced both real and personal property, it is void in toto. Without determining in this case its effect so far as the personalty is involved, we think the deed is sufficient to convey the realty.
We concur, too, with the court below, that this deed is not a morfgage, but a deed of trust, and therefore need not be sworn to.
The purpose and effect of the deed being to convey the whole estate to the trustee, subject only to the subsisting liens upon it, the entire proceeds of the property, after satisfying liens, whether they be more or less than Mrs. Holliday’s original mortgage, vest in him, in trust for her benefit. The question, therefore, of interest, as presented by the auditor’s report, becomes a matter of no moment. As the effect of the decree below is to produce this result, we affirm it.
Without deeming it necessary to affirm all the legal propositions contained in the able and elaborate opinion delivered by the learned judge in the court below, we think, nevertheless, that that opinion, in the main, is founded upon sound, legal principles.
Decree affirmed with costs.