25 Md. 486 | Md. | 1866
delivered the opinion of this Court.-
This bill was filed for the purpose of setting aside a deed of surrender and release, executed by Herman Pollack to Moses Cohen, on the 26th of December, I860,- upon the alleged ground, that Pollack was then insolvent, and that the deed to Cohen, one of his creditors, was an undue preference within the meaning of sec. 7, Art. 48 of the Code. It is admitted that Pollack did not apply for the benefit of the insolvent laws until the 18th of February, 1862, about fourteen months after the date of the deed. There is no pretence that the deed was executed for an insufficient consideration, or that it was fraudulent in fact; and we have, therefore, to decide the simple question, whether it -was executed by the grantor when he had “ no reasonable expectation- of being exempted from liability to execution on account of his debts-without petitioning for the benefit of the insolvent laws.”
The 7th section of Art. 48 of the Code, taken as- a whole,unquestionably contemplated a class of cases in which the1 acts- of an insolvent before his application cannot be avoided, notwithstanding his actual insolvency at the time the acts were done. It is not difficult to imagine a case where one,knowing himself to be insolvent, might, nevertheless, very reasonably conclude, from the state of his credit, the increas*.
The provision in question was codified from the Act of 1854, chap. 193, sec. 7,- which in substance and effect is the same as the 6th sec. of the Act of 1816, chap. 221, and the construction given to it here corresponds with that given to the Act of 1816, in the cases of Hickey vs. Farmers Bank, 5 G. & J., 377, Crawford vs. Taylor, 6 G. & J., 323, and Dulaney vs. Hoffman, 7 G. & J., 170.
It was, therefore, necessary for the appellant in making out a case, upon which this deed could be set aside, to show that Pollock not only knew, or supposed himself to be, insolvent at the date of the deed, but that the circumstances under which it was- executed, were such that he could not reasonably have expected to pay his- debts in full, or avoid liability to execution on their account otherwise than by means of the insolvent laws. This, in our opinion, the appellant has failed to do. The evidence of Pollock’s condition at the date of the deed does not show that he then knew, or supposed himself to be, insolvent. The strongest evidence on that side of the case is that of Pollock, himself,who, upon his examination in July, 1882, says, that at the time the deed was executed he was in debt to the amount of about $29,000, and that he could not, at that time, have paid more than fifty cents in the dollar; but he- does not say that he then knew he was- unable to pay more.- It is true that Geahring and Cunningham, his employees, both state that' they thought him insolvent during the latter' part of the year’ 1860 ; but Pollock testifies that shortly previous to, or in-October, 1860, he believed himself to be worth about $6000 and the statements ot his pecuniary condition, made up in August, 1860, and February, 1861, by the assistance of Geah-ring and Cunningham, neither of which were substantially
Much of the testimony contained in the record has no material bearing upon the question to he decided, and it has not been noticed for that reason ; but that to which we have more particularly referred, was sufficient in our opinion to justify the conclusion reached by the Court below. It shows that the grantor, at the date of the deed, had an expectation of being exempted from execution for his debts, which, so far as we can see, was not unreasonable, and there is an entire absence of evidence to sbow that it was executed with a view
Decree affirmed with costs to the appellee,