Triebert v. Burgess, 11 Md. 452

Triebert v. Burgess

11 Md. 452 | Md. | 1857

Eccleston, J.,

delivered the opinion of this court.

The bill and exhibits being filed, the court passed an order appointing a receiver, with authority, on his giving bond, to take charge and possession of the goods, wares, merchandise and effects of the defendant, and directing him to surrender the same to the receiver. The order also granted an injunction according to the prayer of the bill, upon a bond being filed by the complainants, but reserving liberty to the defendant to move for the rescinding of the order, and for a dissolution of the injunction, at any time after filing his answer, on giving the complainants five days’ previous notice of such motion.

This order is dated the 10th of November 1857, on which day the injunction issued, after the bond of the complainants and that of the receiver were filed.

On the following day the defendant filed his answer, entered an appeal from the order granting an injunction and appointing a receiver, and filed his appeal bond.

Afterwards, but on the same day, upon motion by the defendant, the court passed an order directing the receiver to deliver to the defendant all the property taken from him by virtue of the receiver’s appointment. Prom which order the complainants appealed.

On the first appeal the solicitors of Triebert contend, that, admitting the allegations of the bill may be sufficient to entitle the complainants to the relief they ask, if the bill had been properly proved, or sworn to, still the order appealed from should not have been passed, because the affidavit of the complainant is defective, in not slating positively his knowledge of the truth of the matters alleged, the oath being, “that the facts stated in the bill are true, to the best of his knowledge and belief.”

In Coale vs. Chase, 1 Bland, 137, the form of an affidavit to the answer was objected to, as being too vague, indefinite and general. The affidavit was, “'that the several matters and facts set forth in the within and aforegoing answer are just and true as they are therein stated, according to the best of her knowledge, belief, and recollection,” The chancellor ad*460mitted that, regularly, the affidavit in such cases-should assert, “that the facts within the defendant’s own knowledge are true, and that those facts not within his own knowledge he believes to be true.” But because, in Maryland, there had been, as far- back as his observation extended, a very great neglect of all regularity in the forms of such affidavits, the chancellor did not feel authorized to depart from even so improper a practice as to require more than a substantial sufficiency in such affidavits. He thought them sufficiently absolute and positive, if, when taken in connection with the body of the answer, the party would be subject to a prosecution for peijury, in case the matters stated in the answer should be false. He held it to be welt settled, that if a man swears he believes that to be true which he knows to be false, he swears as absolutely and is as criminal as if he had made a positive assertion; and may be prosecuted and punished for peijury. And although the chancellor did not think the affidavit so correctly expressed as it ought to have been, still, when taken in connection with the whole answer, he deemed it substantially sufficient; because if any of the allegations of the answer were false, the defendant would be as clearly liable to a prosecution for perjury as if the affidavit had been couched in the most positive terms. Upon which answer, thus sworn to, the injunction previously granted was dissolved.

At one time it was held, in England, that a man who swore to his belief could not be prosecuted for perjury; but this has been overruled by more recent authorities, which sustain the doctrine stated by Chancellor Bland.

In 3 Waterman's Archb. Crim. Prac. & Plead., 596, it appears, that in the Common Pleas, in 1780, Lord Loughborough and other judges “were unanimous that belief was to be considered as an absolute term, and that an indictment might be supported upon it.” See, also, Commonwealth vs. Warden, 11 Metcalf, 406.

The matters set forth in the present bill, which could be supposed to be within the knowledge of the complainants, are not stated as believed by them upon information received from other sources than their own knowledge; but the allegations *461in the bill are stated in the usual manner of averring facts as based upon the knowledge of the complainants. And, in view of the long established practice in this State, we cannot sustain the defendant’s objection to the form of the affidavit. When the facts, as here stated, are sworn to by a party to be true, “according to the best of his knowledge and belief,” he must be considered as making a sufficiently positive assertion that they are true.

Triebert, as appellant, objects to the order of the 10th of November, both as regards the granting of the injunction and the appointment of a receiver. The portion relative to the receiver will be first disposed of.

This will not require a very extended examination, becauso in the case of Blondheim, et al., vs. Moore, decided during the present term, (ante 365,) this court has very clearly enunciated such rules in relation to the appointment of receivers as must settle the case before us on this subject.

One of the rules alluded to is: “That unless the necessity be of the most stringent character, the court will not appoint until the defendant is first heard in response to the application.” In that case the appointment of a receiver, without notice to the defendants having been given, was held to be erroneous.

According to the principles there established, there is no such imperious necessity as should justify the appointment of a receiver without notice, in the case before us; especially as the defendants were merchants, residing in the city of Baltimore, but a short distance from the court in which the order was passed. And this order was erroneous, because too comprehensive. It directed to be delivered to the receiver “the goods, wares, and merchandise, and effects,” of the defendant, whereas his agreement, as stated in the bill, was, that he would give a mortgage “of all his stock in trade in the city of Baltimore.”

In reference to the injunction, the defendant insists, that the bill does not present, a case which entitles the complainants to a specific execution of the alleged agreement for a mortgage, and, therefore, the injunction should not have been granted. *462Different grounds are urged against the complainants’ right to have a mortgage. One is, that the complainants had knowledge of the defendant’s insolvency, and the arrangement alleged b.y them, by which, on the advance of $900, they were to have a mortgage on the defendant’s entire stock in trade, to secure the advance and the entire debt due, and to become due from him to them, was an attempt to obtain an undue and improper preference. And to grant the relief asked, would be in opposition to the policy of our insolvent law of 1854, ch. 193, secs. 6, 7, 8 and 10. In support of this view, it is said, that the bill alleges the defendant to be greatly embarrassed in his circumstances, that he had created one or more liens in favor of one or more of his creditors on other property belonging to him, being thereto pressed, and unable otherwise to satisfy the demand made on him; that the complainants apprehend and charge there is great danger that the defendant will dispose of his whole stock in trade, or give liens thereon, to persons unaware of the complainants’ claims aud equitable lien in the premises, and so put the said stock in trade, and the proceeds thereof, beyond the reach of the complainants; and they further allege, that if liens are so created in favor of other persons, on said stock, or the same shall be sold by the defendant, and the proceeds pass into his possession, there is great danger that they will not only lose their promised security, which is ample for their debt, but also their debt itself, it being the belief of the complainants that said defendant is largely indebted beyond his means of payment. It does not, however, appear that the defendant has ever become a petitioner for the benefit of the insolvent law; and we understand that he never was an insolvent petitioner.

It is manifest that the sections in the act of 1854, which have been referred to, relate only to cases of insolvency, in which there have been petitions for the benefit of that act. And in such cases, alone, does that law make void judgments, decrees, conveyances and assignments, for fraud or for giving undue preferences.

The 6th section declares, aThat no person shall be released or discharged wider this act, who has conveyed, concealed or disposed of his property to defraud,” &c.

*463The 7th section is, “That any confession of judgment, and any conveyance or assignment, made by any insolvent under this act, for the purpose of defrauding his creditors, or giving an undue preference, shall be void, and the property or thing conveyed or assigned, shall vest in the trustee, and that all acts done by a petitioner before his application, when he shall have had no reasonable expectation of being exempted from liability or execution, on account of his debts or responsibilities, without petitioning for the benefit of the insolvent laws, shall be deemed to be within the meaning and purview of this section.”

The 8th section provides, “That any judgment or decree confessed to give an undue preference to any creditor, or for the purpose of defrauding any creditor, shall be void, and excluded in the distribution under this act.”

The 10th section enacts, “That the estates of insolvents shall be distributed under the orders of the court, according to the principles of equity, and no creditor shall acquire a lien by fieri facias or attachment, unless the same be levied before the filing of the petition.” (The italics are ours.)

There having been no such insolvency shown as the act of 1854 contemplates, we are not prepared to say that its provisions can defeat the complainants’ claim under the alleged contract for a mortgage. See, in Kettlewell vs. Stewart, 8 Gill, 501, a note of the opinion delivered by Chief Justice Taney, in the case of White, Warner & Co., vs. Winn & Ross.

The present is a case in which the debtor himself is resisting the complainants’ right to relief, but which is not opposed by creditors of the defendant, or by a trustee for them.

Another objection to this contract is, that it cannot be specifically enforced, because it is too indefinite, inasmuch as no time is limited for payment of the mortgage; and as the parties have agreed upon none, the court cannot undertake to fix it. Such an objection is not a valid one. Yery recently, in Farrell vs. Bean, 10 Md. Rep., 233, this court has said:1 “When no particular time of payment is limited in a mort*464gage, it is to be paid in a reasonable time. And if the payment is not so made, the mortgagee is entitled to a foreclosure.” Moreover, a mortgagor cannot seriously apprehend being oppressed by want of proper time to pay, under a final decree, as this matter is at the discretion of the judge, who will, of course, regulate the time for payment under the decree, according to the equitable circumstances brought before him.

That, in Maryland, a parol contract for a mortgage of personal property, based upon a valuable consideration, may be enforced in a court of equity, if the contract is not such as the statute of frauds requires to be in writing, has been fully éstablished in Alexander, et al., vs. Ghiselin, et al., 5 Gill, 138, and Sullivan vs. Tuck, 1 Md. Ch. Dec., 59. According to the views of the chancellor, in the latter case, courts of equity do not specifically enforce contracts in respect to personal property, with the same facility and universality as contracts relating to real estate; the cause of which is, that in contracts of the first class, courts of law are generally competent to afford full redress. 2 Story’s Eq., sec. 717. But when, at law, a party cannot have a complete and satisfactory remedy, although the contract relates to personal estate, a court of equity will grant relief, Ibid., sec. 718.

Under the circumstances set forth in this bill, there was, in our opiniou, an equitable lien upon the defendant’s stock in trade, which authorized the court to grant the injunction. According to the facts stated, there was no reasonable ‘ground to believe that the complainants could secure payment of their claim, except by enforcing their equitable lien.

On this appeal the answer is not before us, and we can only look to the bill and exhibits.

That portion of the order of the 10th of November 1857, which appointed the receiver, will be reversed, but the portion of it which relates to the injunction, will be affirmed.

Inasmuch as the receiver was improperly appointed, the appeal of the complainants from the order of the 11th of November, cannot be sustained, for, in any view of the case, that order did them no injury.

*465The order appealed from by Triebert, is reversed in part, and affirmed in part; and the parties are to pay their own costs in this court.

Order reversed in part, and affirmed in part, and cause remanded for further proceedings.

Upon the appeal of Burgess and others, the same Judge delivered the opinion of this court:

From what has been said in the opinion delivered in the appeal of Triebert vs. Burgess and others, it will be seen that we think the order appealed from in this case ought to be affirmed. A decree accordingly will be signed, allowing costs in this court in favor of Triebert.

Order affirmed.