38 Md. 211 | Md. | 1873
delivered the opinion of the Court.
The decree from which this appeal is taken vacates and annuls two deeds, the one dated April 7th, 1870, from John Walter, conveying to Ms father, Adam Walter, certain leasehold property for the consideration of $1620, and the other dated the 11th of April, 1870, from Adam Walter to Catharine Walter, the wife of John Walter, conveying to her the same property for the consideration of $1625, and directs the property to be sold for payment of the debts of John Walter. The bill upon which this decree was passed was filed by the appellees, creditors of John Walter, and charges that these conveyances were fraudulent and void as against them. John Walter and Catharine Walter, his wife, are the only defendants to the suit, and it is objected that a Building Association!' which holds a prior mortgage on the property, and Adam Walter, should have been made parties.
In many cases it is very difficult to determine who are necessary parties to an equity suit. Upon no subject are the decisions of the most eminent Judges and Chancellors more various, and apparently conflicting. There is no doubt it is the constant aim as well as the just boast of Courts of Equity to do complete justice by settling the rights of all persons interested in the subject matter of the suit so that the performance of the decree may he
The present suit was instituted by creditors, and its object is to vacate two deeds fraudulent as against them, by means of which property had been transferred from a husband to his wife, and to have that property sold for payment of the husband’s debts. The first question presented is this, viz., is this .Building Association a prior incumbrancer by way of mortgage, a necessary or indispensable party to the proceeding without whose presence as such no valid decree for a sale can be passed ? In the case of Wylie vs. McMakin, 2 Md. Ch. Dec., 413, where a bill was filed by a mortgagee for sale of the mortgaged property to pay his debt, it was objected that the holder of a prior mortgage on part of the property was not made a party, and the Chancellor, in referring to this objection, said, “The general rule certainly is, that all incumbrancers shall be made parties, whether prior or subsequent, and though cases may be found where it has been held that a prior mortgagee need not be made a party
From this review of the Maryland decisions on this point it is plain, it is not in all cases like the present, essential to the validity of a decree of sale to make prior incumbrancers parties. Whether in any such case they are necessary and indispensable parties, (though proper to be made so,) is a question still undecided, and the present case does not require us to determine it.
The mortgage is not set out in the record, but it sufficiently appears from the testimony and the reference to it in the deeds to be in the usual form of a Building Association mortgage. By the terms of such instruments no right to sell the mortgaged property exists if the stipulated weekly dues are regularly paid; and it does not appear any such failure had occurred in this case at the time this bill was filed, but the contrary is plainly inferrible from the testimony. The mortgagee was not in a position to enforce a sale, and could only claim prompt payment of future weekly dues. In this respect the case resembles that of an ordinary mortgage where the debt is not due, and under all the authorities to which we have referred, a prior mortgagee in that situation need not be made a party. We are therefore of opinion, it was not necessary in this case to make this Building Association a party to the bill. Their interests are in no wise affected by the decree. The clause in it that the trustee shall convey the property to the purchaser free from all claim
In support of the position that Adam Walter is a necessary party, special reference is made to the two cases of Ward vs. Hollins, 14 Md., 158, and Lovejoy vs. Irelan, 17 Md., 525. In the former of these cases it was held that where the object of a proceeding in Equity is to assail a deed, either for the purpose of having it rectified or vacated all the parties to the instrument are necessary and proper parties to the cause, without whom no valid decree can be passed, and in the latter, where creditors filed a bill to vacate a deed as fraudulent as against them, it was held that the fraudulent grantor was a necessary party as well on account of the fraud charged as'because of the title remaining in him for the benefit of' creditors. But the present case is unlike either of these. Here both deeds, the one to and the other from Adam Walter are vacated, and he held title for less than five days. No fraud or confederation with the other parties is charged against him. The bill charges that John Walter conspired with his wife Catharine Walter, to cheat and defraud the creditors of the former and attempted to carry out that fraud by means of these false and fraudulent conveyances. The case is very similar to that of Davis vs. Simpson, 5 H. & J., 147, where an executor with power to sell, proceeded to have the power executed under an order or decree of Court, and as trustee under such decree, sold and conveyed property to one Campbell, who on the same day re-conveyed it to the trustee, and upon a bill filed by the legatees under the will, the sale and the deeds to and from Campbell, were vacated as fraudulent and void. To this proceeding neither Campbell, nor his
The remaining question is one of fact, viz: is the charge of fraud .established by the proof? On tin's, we have, after a careful examination of the testimony in the record, and consideration of the arguments of counsel, reached the same conclusion as that arrived at by the Circuit Court. The decree appealed from must therefore be affirmed and the cause remanded for its execution.
Decree affirmed, and cause remanded.