Ward v. Hollins

| Md. | Jul 15, 1859

Lead Opinion

Bartol, L,

delivered the opinion of this court.

The decree from which this appeal was taken was passed pn the 8th day of April 1S56, declaring a certain deed of the 28th of September 1854, to be void as against the complainants and other creditors of Eliza Ward, directing the property mentioned in that deed, or so much thereof as might be necessary, to be sold to discharge the claims of the complainants and all other creditors of Eliza Ward who may come in as parties to the suit, and appointing P. McLaughlin, Esq., trus, to make tire saje,

On the 26th of April 1856, the defendants prayed an appeal, which was granted; afterwards, on the 28th of April, the following agreement was filed in the cause:

“It is agreed (hat the trustee shall suspend the sale authorized to be made in the above cause, for ninety days from date, and in consideration thereof the defendants, in the above cause, agree to withdraw their appeal, and agree that they will not hereafter appeal from the decree in the above cause— April 28th, 1856. P. McLaughlin,

Sol. for Complainants.

Geo. Ross Yeazey,

Sol. for Defendants.”

Afterwards, on the 1st of July 1856, another agreement was filed, signed in the same way, agreeing “that P. McLaughlin, the trustee, shall proceed to sell all of the ground authorized to be sold in the above cause, which lies east of Strieker street; and that such sale may be made on ten days’ notice.”

In pursuance of the last mentioned agreement, the trustee made sale of that part of the property therein mentioned, for the sum of $3180, which was finally ratified on the 25th of July 1856.

On the 25th of September thereafter, the defendants, by their present solicitors, prayed an appeal from the decree, which brings this record before us.

Xt is urged, on the part of the appellees, that the appeal ought to be dismissed, because it was taken in violation of the agreement of the 28th of April, which, it is contended, was a binding contract, and ought to be enforced. Its validity is not questioned upon the ground of any collusion or fraud on the part of the solicitors who signed it, nor does the record contain any proof upon which such a charge could be made.

It is not necessary to enter into the question, whether the late lamented solicitor for the appellants had the power, by virtue of his general authority as solicitor, to make the agreement. In the absence of proof to the contrary, we think it ought to be presumed, that the act was done by the client’s authority; according to the practice in Maryland, no power of attorney is usual or necessary. Henck vs. Todhunter, 7 H. & J., 275.

For the purposes of this case, we treat the agreement as if it had been made by the appellants themselves, and yet we think the motion to dismiss ought not to be sustained. We take it to be quite clear, that if an appeal be prayed and allowed, and then be-withdrawn by the order of the appellant, he is not thereby precluded from afterwards prosecuting an appeal in the same cause, provided it is done within the time limited by law, but if, for a legal and valid consideration, he agree to withdraw the appeal, and not thereafter to appeal, such an agreement would be enforced. In the case before us, however, there was no legal or valid consideration for the agreement. Mr. McLaughlin, with whom it was made, had no authority to stipulate for delay in the execution of the decree; he could not bind the complainants by such an agreement; they no longer stood towards him in the relation of clients in the cause, after he had been appointed trustee. Farmers Bank of Maryland vs. Mackall & Tilton, 3 Gill, 447.

The alleged consideration for the contract was an agreement on the part of the trustee, after the decree, to delay the sale for ninety days; this agreement he had no power to make; it could not have been enforced on behalf of the defendants; it was nudum pactum,, and cannot be enforced against them.

The decree is manifestly erroneous. The bill was filed, originally, by George Hollins, Robert McEldowney & Co., Haywood, Bartlett &. Co., and Wroth & McCreery, all setting up claims, as creditors of Eliza Ward, who, in her answer, denies her alleged indebtment to any of the complainants, except to McEldowney & Co., and Wroth & McCreery, for small sums, much less than those claimed by the bill. After the answers had been filed, Gould & Glandvill came in by petition, alleging themselves to be creditors, and were admitted parties complainants.

No proof whatever was given in support of any of the claims of the complainants, except that of George Hollins, and yet the decree, adjudged in favor of them all, and for that reason ought to be reversed. But the rights of the purchasers, under the sales made by the trustee, will be protected and the sales remain valid, in conformity with the practice of this court in similar cases. See Wampler vs. Wolfinger & Strite, 13 Md. Rep., 348, and the authorities there cited.

Decided July 15th, 1859.

As the cause will be remanded for further proceedings, we deem it proper to say, that the averments of the bill, if exceptions be taken thereto, are not sufficient to justify such a decree as was passed in the cause. The object of the proceeding being to assail the deed of the 28th of September 1854, either for the purpose of having it rectified or vacated, all the parties to the deed are necessary and proper parties to this cause, without whom no valid decree can be passed.

In the final disposition of the cause the rights of the creditors may depend on the times when their claims originated;'' because we do not think there was sufficient evidence of fraud in fact, on the part of Mrs. Eliza Ward. See Williams vs. Banks, 11 Md. Rep., 198.

The parties are at issue on that question, and the complainants have failed in supporting the allegations of the bill in that-behalf. She was not indebted, as far as now appears, to any of them, when she made the deed to her daughter, of the 1st of August 1851, conveying her equity of redemption. Nor does she appear to have acquired any interest in the property after-wards, (except that reserved by the deed of August 1851,) until July 1853, the time of the agreement, under which the property was purchased by Thomas.

Persons, not creditors at the time of a conveyance, cannot impeach it for fraud in law. But if Eliza Ward acquired property after contracting debts, she cannot dispose of it without consideration, to the prejudice of her existing creditors. In the present state of the record, we cannot pass upon the rights of the creditors; but will leave them to establish their claims as they may be able, there being sufficient to show, that the property may eventually be liable for some of them.

Decree reversed and cause remanded, each party

to pay their own costs in this court.

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Dissenting Opinion

LeGband, C. J.,

delivered the following dissenting opinion:-' I have not a shadow of a doubt, that the decree in this case-was erroneous. Besides other objections to it, the fact that there was not a particle of proof to sustain any of the claims mentioned in the bill, except that of George Hollins, would be sufficient to condemn the decree which adjudges in favor of the validity of all of them. Looking to all the circumstances of the case, I confess I have been anxious to find out some method by which I could feel myself authorized to reverse the decree and remand the cause for further proceedings, but I have not been able to discover any principle which would justify me in such a course. I think the motion to dismiss the appeal ought to be sustained. There are no exceptions to the sufficiency of the averments of the bill, but even if there were,the question would still be, what effect Would the agreej ment to waive the appeal have? There is no proof whatever of any collusion or fraud, on the part of the original counsel of the appellants in making the agreement to abandon the appeal, and the question, therefore, simply is, whether it ufascompetent to him to make it as solicitor? If it was, then the motion to dismiss must prevail.

There is no warrant of attorney necessary in this State. Henck vs. Todhunter, 7 Har. & John., 275. An agreement made by counsel, free from fraud or mistake, is equivalent to-an agreement between the parties. It has been long the practice in this State to consider binding, decrees made by consent of counsel, and from such decrees no appeal will lie. Williams vs. Williams, 7 Gill, 305. An altornej^ may confess-judgment. Farmers Bank of Md. vs. Sprigg, 11 Md. Rep., 396. He has the power to pray an appeal, and it is1 every day practice for him to dismiss an appeal. If he have this power it is difficult to understand, why he has not that of agreeing to abandon the appeal, before the record reaches the! appellate court. See Galbreath vs. Colt, 4 Yeates, 551.

I assent to all the other views* of my brothers',-