Wolf v. Corby

30 Md. 356 | Md. | 1869

BkeNT, J.,

delivered the opinion of the Court.

The bill of complaint in this case alleges that a deed by which the appellants, George Wolf and Mary C. Wolf,, his wife, in 1842 conveyed, in fee simple, to John Corby and William Corby, the real estate mentioned therein, and which descended to the husband as one of the heirs-at-law >of Jacob Wolf, deceased, was intended by the parties as a mortgage, and that the property, after the payment and satisfaction of the debts secured by it, should be conveyed by the grantees to Mary C. Wolf, for the benefit of herself and children. It charges that the debts have been paid from the profits and proceeds of the property, states the death of John and William Corby, one of whom died in 1853, and the other in 1861, and asks for a decree annulling and vacating the deed, and directing the appellees, the heirs-at-law of the grantees, to convey the property to Mary C. Wolf, one of the appellants.

The answers of the defendants deny the material allegations in the bill, and the complainants are thereby put upon proof of all that is essential to make out and support their claim to the relief which they ask. If a trust is set up, the denial by the pleadings of the agreement upon which it is. based, is sufficient to hold the party setting it up to such proof of it as will satisfy the requirements of the Statute of Frauds, although the statute may not be insisted upon in the answer. Ontario JSanJc vs. Root, 3 Paige’s Ch. Rep., 481; Jones vs. Slubey, 5 H. & J., 372; Small vs. Owings, 1 Md. Ch. Dec., 363.

The Statute of Limitations is relied upon in the answers as one of the defence® to this bill, and was strongly urged in the argument on the part of the appellees. We do not consider it important to examine its application to this case, as our decision will rest upon grounds totally distinct from any want of equities on the part of the appellants, because of the alleged staleness of their demand from the long period of time between the execution of the deed and the filing of the bill of complaint.

Assuming that all the evidence offered by the appellants is admissible, it does not establish a mortgáge between the parties. According to the terms of the agreement testified to by the witness, Keppler, the property was not to return to the grantors after the payment of the debts, which it is said its conveyance was intended to secure. They had no equity of redemption upon which a release or a re-conveyance could have been demanded. The title of George Wolf, to whom the property had descended, was absolutely parted with, and he certainly had no right to redeem. It was under no circumstances to become his by virtue of any equities remaining in him, but was to pass to the grantees free from all claim so far as he was concerned or interested.

The true effect of the evidence is not to establish a mortgage between the parties, but would be, if it were admissible, to create a conventional trust.

Although the deed in question is an absolute conveyance upon its face, and is conceded to have been drawn and executed according to the intention of the parties, the appellants seek to have it annulled, and the property conveyed under it turned into another and different channel, because by a parol agreement it was not intended to give to the grantees a fee, but the property was to be held by them only until the payment of certain debts, when they were to convey it to one of the appellants for the benefit of herself and her children. The debts as it is alleged having been paid, the aid of a Court of equity is invoked, that a deed may now be executed according to the terms of this agreement.

This is clearly an attempt to set up and enforce a trust which is not only not evidenced by any writing, but is in direct opposition to the solemn deed of the parties. All the testimony offered and objected to by the appellees, tends to prove but a parol agreement between the parties, and for the purposes of this case is wholly inadmissible. To give effect to a trust of this sort, resting alone in parol, would be in violation of the Statute of Frauds, which declares the creation of any trust of lands to be utterly void, unless “ manifested and proven by some writing signed by the party who is enabled to declare the trust. McElderry vs. Shipley, et al., 2 Md., 37; Jones vs. Slubey, 5 H. & J., 372; Dorsey vs. Clark, 4 H. & J., 551.

(Decided 12th March, 1869.)

In this view of the law and its application to the case before us, we think the Court below was right in ordering the bill to be dismissed.

Decree affirmed, with costs to the appellees.