Taggart v. Boldin

Le Grand, O. J., delivered the opinion of this court. Tlie bill filed in this case had for its purpose the procurement of a decree setting aside a deed from Daniel M. Stoup to Susan A. M. Taggart, and to compel Stoup to make a deed to the appellees. The facts set out and alleged in the bill may be thus stated: that on the 25th day of October 1852, a writ of attachment, on warrant was sued out of the circuit court in favor of John Hoye, against James Taggart, and levied by the sheriff, upon the same day, on lot No. 14, in Oakland, and duly returned to the January term, 1853, of said court, and judgment of condemnation then rendered; that on the 6th of December 1853, execution, issued upon this judgment, and the lot was purchased thereunder by the appellees. The bill then charges, that prior to the issuing of the attachment, one Townshend had agreed to sell the lot to James Taggart, and, in pursuance of said agreement, it was so sold, and a payment of a part of the purchase money actually made to Townshend by James Taggart; that it was agreed between Townshend, and Stoup, and Taggart, if Stoup would advance the remainder of the purchase money to Townshend, the latter should make a deed to him of the lot which he should hold until he was refunded the amount advanced, and accordingly the amount was advanced by Stoup. It is alleged- that the appellant, Susan, -obtained from White & Co., debtors of her husband, James, $200, with which she repaid Stoup, who then deeded the properly to her in her own name. The object of the bill is to set aside this deed, and to procure an account of rent and profits, &c. The hill did not call for answer under oath, and, therefore, since the passage of the acts of Assembly of 1852, chapter 133, and of 1853, chapter 344, the answer of Mrs. Taggart is not [114] evidence in the cause, it not having been read as such by the complainants. The cause must, therefore, be determined by the averments of the bill and the testimony. Although, since the passage of the acts to which we have referred, an answer not sworn to, and not asked by the complainant to be sworn to, is not evidence, yet it may be looked to for the purpose of ascertaining what is the matter in issue between the parties. As we understand the acts of 1852 and 1853, the bill and answer, when not sworn to, or where the answer is not read in evidence as such by the complainant, they are only to be regarded as the pleadings in the causé, exhibiting the points in dispute, like unto the pleadings in a suit at law. This is the only sensible interpretation, in our judgment, of which the acts of Assembly are susceptible. We, of course, do not include in these observations bills of discovery; they are expressly exempted by the language of the act of 1853, from the operation of its provisions, nor do we embrace the case where the cause is set down for hearing on bill and answer only. On the latter point, see the case of Warren vs. Twilley, decided at this term, (ante 39.) With this explanation we proceed to state the nature of the defence set up in the answer of Mrs. Taggart. In substance it amounts to this: that her deceased father, George Rinehart, bequeathed to her a legacy of $200, in the year 1840, payable five years after his death; that prior to the year 1846, the executors of his last will paid over the legacy, which was by her husband, James, invested in land for her use; that this land was subsequently sold to one Thomas Bosley, about the year 1846, and the notes for the purchase money were given by Bosley, payable to Mrs. Taggart. These notes, with interest, in all amounting to $260, were paid by Bosley to James, the husband of the appellant, Susan; that a lot, the one in question, was purchased by her husband for her, from one Townshend, on which $100 was paid at the time, leaving due therefor $200, the whole purchase money being $300; that in March 1852, Townshend, Taggart and Stoup made an agreement by which it was stipulated Stoup should advance the residue of the purchase money, to wit, $200, and as security for its repayment to him, he was to re [115] eeive the deed for the property from Townshend, and to hold the same until the sum should be refunded; that the sum advanced by Stoup was repaid by money received from White & Co., by Mrs. Taggart, that firm being indebted to Mr. Taggart to the amount of $200; this sum was paid to Stoup, and iu consequence thereof, and in pursuance of the original understanding, Stoup made a deed of the property to Mrs. Taggart. It is this deed which the bill asks may be set aside. Mrs. Taggart claims the $200 received from White & Co., and paid by her to Stoup, as part of her separate estate; that her husband had previously got that amount of her money, being a legacy left her by her deceased father. This statement of the averments of the bill and answer will sufficiently exhibit the points at issue between the parties. Townshend, from whom the lot was purchased, states that, the lot was purchased by James Taggart from him in April or May 1850; that he did not know Mrs. Taggart in the matter, and that Mr. Taggart did not tell him the purchase was for his wife. Stoup testifies that a short time before James Taggart absconded, he called on the witness and told him that he would give him an order on White & Co. for $200, in payment, of the amount he had advanced on the lot, and that when he received the amount, lie wished him to make the deed to his wife, Susan; this was the first time the wife’s name was mentioned in connection with the transaction. JBurton, one of the firm of White & Co., testified that he paid the money to Mrs. Taggart, as the agent of her husband, James, and Stoup, that he ivas present at the time of the payment, and that the money so received by Mrs. Taggart was immediately by her paid over to him. The principles which are to determine this cause, arise out of the facts thus given. The main question is: conceding that the money which ivas paid by Bosley to James Taggart, was the amount due by him for land purchased by him of the estate of Mrs. Taggart, was the reception and use of it by the husband such a reduction into possession and conversion to his own use as to make it liable to the claims of his creditors ? We think it was such a conversion. The doctrine applica [116] ble to cases similar to (his, has been reviewed on more occasions than one, by this court, and inasmuch as the decisions heretofore given are to control our present judgment, it would be useless to travel beyond them, and we do not, therefore, propose to do so. The case of Peacock vs. Pembroke, Gar. of Russell & Clarke, 4 Md. Rep., 280, collates with sufficient fullness the decisions to which we refer. It was very like, in some of its facts, the one now before us. It was an attachment issued at the instance of the plaintiff, who was an assignee of a judgment against Russell, and laid in the hands of Pembroke, as garnishee. At the trial, it was proved that Pembroke had admitted that he had purchased from Russell and wife the latter’s interest in a piece of land, and executed' his bonds for the same, upon which he still owed about $200; that the land sold was the maiden land of the wife, and the notes were drawn payable to her, and that the attachment in the case was for a debt due from the husband, Russell, to the plaintiff. There was no contest in the case as to whom the land belonged, nor was there any as to the fact as to whom the bonds were made payable; and thus in these particulars it is identical with the one now under consideration. See also Turton’s Exc’rs vs. Turton, 6 Md. Rep., 375. On the facts we have given, the following instruction was asked from the court below, to wit: “ That if they (the jury) find that the garnishee, Pembroke, had purchased from Russell and wife the maiden land of the wife, and the notes for the payment of the same were in her name, and the debt, for the recovery of which this action was brought, was due by Russell, the husband, alone, then the plaintiff is not entitled to recover.” What was asked in that case, is what is asked in this, and nothing more nor less. But the Court of Appeals, in that case, said no, and declared the principle involved had been fully settled in that of the State vs. Krebs, 6 H. & J., 31, to say nothing of other cases and treatises which might have been cited. They proceeded to say, in the language of the State vs. Krebs: “Let the law be considered as settled, that the husband. may sue in his own name for money situated as this is, [117] and it seems to follow, necessarily, that it may be attached by the husband’s creditors, to satisfy a debt due by him.” And we add, in the words of the same authority, that “the bond passed to the wife by the purchaser, is a chose in action, liable to be sued for and recovered by the husband at his pleasure.” We are, therefore, of the opinion, that so soon as Bosley passed the notes to the wife of Taggart, 1he mutation from real to personal property was complete, and the right of the husband to sue for their recovery perfect; and, this being so, they could be reached by his creditors. To avoid all misapprehension as to our views of this case, and the principles on which it is decided, we add, there is nothing adequate, in our judgment, to show Mrs. Taggart had a separate estate in the property originally purchased by the husband, with the money obtained from the bequest of her father. Nor is there sufficient proof that the lot purchased from Townshend was originally purchased for the separate estate of Mrs. Taggart. The evidence of the witnesses, so far as it relates to what the will of her father contained, is excepted to, as are also the statements of Mrs. Taggart. The will of the father is its best exponent, and anything contrary to its plain import is inadmissible, and so are the declarations of Mrs. Taggart in favor of her title. To use the language of Clancey on Husband & Wife, adopted in Turton vs. Turton, 6 Md. Rep., 383, “the act by which he (the husband) divests himself of his property, must be clear and unequivocal.” No such certainty appears in this case, and, therefore, for the reasons assigned, the decree must be affirmed; but, under the peculiar circumstances of this proceeding, without costs in this court. Decree affirmed, but without costs in this court.