Jackson, Brother & Co. v. West

Baiitol, J., delivered tbe opinion of this Court. Tbe fund in Court, out of which tbe appellants claim to be paid tbe.sum of $1,024.12, and interest, being tbe amount of their account for necessaries furnished to Mrs. Eleanor West, from November 1852 to July 1856, has come to tbe bands of tbe trustees from tbe sale of tbe real estate of Mrs. Eleanor West, conveyed by deed of tbe first of May 1844, executed by A. P. West and wife. Tbe right of tbe appellants to tbe relief prayed in their petition, depends upon tbe decision of two questions: 1st. Whether their claim is proved according to law? 2nd. Whether, if proved, tbe trust fund in Court may be charged with its payment ? 1st. As to tbe proof of the account: This consists of tbe oath of William B. Jackson, one of tbe firm of Jackson, Brothers & Co., and also the oath of Joseph C. Jackson, “a disinterested, credible witness,” tbe clerk and bookkeeper of tbe appellants, made, and certified according to the requirements of the 4th sec. of tbe Act of 1785, cb. 46. This is sufficient prima facie proof to establish the account, according to tbe practice in this State. Strike vs. McDonald, 2 H. & G., 234. McCubbin vs. Cromwell, 2 H. & G., 458. Alexander’s Ch. Pr., 132. But, if tbe exceptions filed against this claim are to be considered as requiring full proof, we think tbe evidence taken under tbe commission has supplied as full proof as such a claim is ordinarily susceptible of. In our opinion, tbe testimony of Joseph C. Jackson, the clerk of the appellants, given in answer to tbe 4th and 5th interrogatories, is sufficient to establish the sale and delivery of the articles charged in the account, at the prices therein stated. [83] One of tlie exceptions taken by John H. Strider, administrator of Eleanor West, is, that it is barred by tbe statute of limitations. It may be questioned wbetber the administrator has any interest in the subject matter of this controversy, which would entitle him to interpose exceptions to the appellants' claim. The fund in Court, we have said, has arisen from the sale of Mrs. West’s lands, and neither in them, nor in the trust funds arising from their sale, has the administrator, as such, any interest. But if it were otherwise, by the order of the Circuit Court, passed on the 13th day of November 1860, under which Strider was allowed to file his answer, and contest the appellants’ account, he was expressly precluded “from interposing the statute of limitations to the same.” In any view, therefore, we can take of the case, the claim of the appellants is free from this objection; and it is unnecessary, therefore, to decide whether it might have been successfully made at the proper time. The claim being proved, we are next to inquire whether the fund in Court is chargeable with its payment. By the deed of the first of May 1844, to which we have referred, the land was conveyed to the trustees “for the sole and separate use and benefit of Eleanor West, and her heirs,” &c. “with power to her to sell the whole, or any part thereof, with the consent of the trustees, and the proceeds of such sales to be invested for the purposes of the trust, or disposed of as said Eleanor West shall direct. ’ ’ Under this deed there can be no question of the power of Mrs. West to charge her separate estate in the hands of the trustees, with the payment of the appellants’ claim. Cook vs. Husbands et al., 11 Md. Rep., 492. It is settled in Maryland that the debts of a feme covert cannot be charged upon her separate estate, unless the obligation sought to be enforced, presents upon its face some evidence of the intent to charge the separate estate [84] with its payment, or there be evidence aliunde, -tending to prove such intent. Koontz vs. Nabb, 16 Md. Rep., 549. We think the evidence disclosed in the record in this case very clearly shows that such was the intent of the parties in this case. Mrs. West was living separate from her husband, the articles furnished to her by the appellants, and charged in the account were necessaries. For years before, similar articles were furnished by the appellants to Mrs. West, and from time to time their accounts were presented to these trustees, and with the approbation of Mrs. West paid out of the trust funds in their bands. This appears from the accounts and vouchers filed by the trustees in this case. This course of dealing continued without any notice to the appellants from Mrs. West, or the trustees, that the claim now presented was not to be charged on the trust fund, in the same manner as others of a like character had been. These facts show the intent of Mrs. West to charge her separate estate with this debt; it is manifest that such was the understanding of the appellants; upon this the credit was given by them, and to deprive them of the benefit of the security upon which they relied, and upon which, by the uniform course of dealing they had a right to rely for payment, would be inequitable, and defeat the plain intent of all the parties. We think the Circuit Court erred in decreeing against the appellants’ claim. In our opinion the appellants were entitled to the decree which was presented by them to the Circuit. Court, and is found in the record before us in blank. By that. decree the trustees are allowed “a, credit of one thousand and sixty-five dollars, and thirty-two cents, to be retained in hand to pay the balance due certain creditors of A. P. West.” That part of the decree being assented to by the appellants’ solicitors, no question arises upon it for the consideration of this Court. [85] (Decided October 7th 1864 ) In order that such decree may be passed by the Circuit Court, the decree appealed from will be reversed and the cause remanded — the cost of the" appeal to be paid out of the fund. Decree reversed and cause remanded.