Farrow v. Hayes

Miller, J., delivered the opinion of the Court. There are hut two questions presented by this appeal. The first is: Was there error in the refusal of the Court to admit the evidence set out in the record, which was offered for the purpose of sustaining, as against the appellees, the attaching creditors, the validity of the deed of the 24th of January, 1878, from O’Neal to the appellants. By that deed O’Neal conveyed certain property to the appellants in trust to sell the same, and out of the proceeds to pay releasing creditors, and the surplus, if any, to the grantor. The. appellees were non-releasing creditors, and it was very properly admitted that as to them the deed as it stands is invalid. But the appellants offered evidence tending to prove that the deed was so executed by O’Neal, by inadvertence and mistake, that he intended and believed he was executing an assignment of all his property to' his creditors, non-releasing as well as releasing, before any surplus should enure to his benefit, and that the omission of a clause from the deed to that effect was occasioned by the mistake and inadvertence of the scrivener, and that the trustees as well'as O’Neal were [505] of the opinion and belief that the deed had been so executed according to the intention of the grantor until after the service of this attachment. We see no ground upon which this testimony can be admitted in an action at law. If it was offered for the purpose of showing that the intention of the grantor was different from that which the law imputes to the deed as it is written, it was clearly inadmissible, for it has been settled by this Court in a series of decisions that the intent must be gathered from the face of the instrument, and if the law declares such a deed void as against creditors, it matters not how the question of fraud in fact may stand. Where a conveyance by its terms operates to hinder, delay, or defraud creditors the intent to do so is imputed to the parties and no evidence of intention can change that presumption. A different intent cannot be shown and made out by the reception of parol testimony nor deduced from surrounding circumstances. Trammel vs. Trieber, 3 Md., 11; Sangston vs. Gaither, Ibid., 40; Malcolm vs. Hodges, 8 Md., 418; Inloes vs. American Exchange Bank, 11 Md., 173; Barnitz vs. Rice, 14 Md., 24; Whedbee & Dickinson vs. Stewart & Price, 40 Md., 414. It is equally clear that a mistake in a deed cannot be shown or availed of in an action at law, and it is wholly unnecessary to cite authorities in support of the position that it is not competent for a Court of law to reform this deed hy inserting into it the clauses which would make it valid, and which the appellants allege have been omitted from it by inadvertence and mistake. The next question is: Was the Court right in refusing to grant the attachment on the facts and proof contained in the second exception ? It appears that the attachment which was under the Act of 1864, ch. 306, was issued on the 5th of March, 1878, and on that day, and before the writ was issued, one of the plaintiffs made the affidavit required by the Act before Mr. J. T. Matthews, the clerk [506] of the Court. The affidavit was written out by the plaintiffs’ counsel in due form, to be sworn to before the clerk, and as so written, concluded with the words “ clerk of the Circuit Court for Worcester County,” so that the clerk had nothing to do but administer the oath and place before these words his signature, or the words “ sworn before J. T. Matthews.” It was proved by the appellants themselves, that the oath as therein written was actually administered to the plaintiff by the clerk before issuing the writ, and it also appears that the affidavit was immediately endorsed by him as of the proper number on the appearance docket, and as between the proper parties, and also endorsed “affidavit — filed March 5th, ISIS.” But it is proved the clerk did not sign the affidavit at the time he administered the oath, but placed the words “ sworn before J. T. Matthews ” thereto some days afterwards, and after the service of the writ but before its return. And now it is contended that this omission of the clerk thus to sign the affidavit at the time he administered the oath, is a fatal defect, and that the attachment must for that reason be quashed, notwithstanding the parties making the objection have themselves proved that the oath was duly administered before the writ was issued, and the omission of his signature supplied by the clerk before its return. Without doubt the decisions in Maryland have gone as far as those of any State in the Union, in requiring attachment proceedings to be in strict conformity with the requirements of the statute, and especially is this true in regard to the affidavit which the law says shall be made before the'writ is issued. By the terms of the Act of 1864, it is declared that “ before any such writ of attachment shall be issued, the plaintiff or some person in his behalf, shall make, an affidavit before the clerk of the Court from which said attachment shall issue, stating” certain prescribed facts, and the omission from the affidavit of any of the substantial words thus prescribed will [507] unquestionably be fatal. In this case, however, there was no such omission. The affidavit in this respect was perfect in itself, and was actually sworn to before the clerk at the proper time. The objection is, that it was not then properly signed and certified by the clerk, but there has been no decision of this Court to the effect that such an omission made under such circumstances, and supplied before the writ was returned is fatal. We have carefully examined the authorities from other States cited by the appellants’ counsel, and in none of them can we find that such an objection has ever been sustained. On the other hand, many of the cases cited by the counsel for the appellees, are to the effect that proceedings in attachment under statutes containing the same requirements as our Act of 1864 cannot be successfully attacked on the ground that the officer administering the oath accidentally omitted to sign the jurat to the affidavit; if it be shown that the affidavit was in fact sworn to before him. McCartney vs. The Branch Bank at Huntsville, 3 Ala., 709; Farmers’ Bank vs. Gettinger, 4 West Va. Rep., 309; Cook vs. Jenkins & Co., 30 Iowa, 452. (Decided 18th June, 1879.) In these cases, the omission of the officer was never supplied, and proof that the affidavit was actually sworn to before him was allowed to be adduced by the plaintiff in the attachment, or the party claiming under it. The present case does not .require us to go to this extent, and our decision is restricted to the facts appearing in this record. What we decide is, that in this case where the proof offered by the parties assailing the attachment shows that the affidavit was actually sworn to before the clerk, and that he administered the oath before he issued the writ, and where his omission to sign and certify was corrected by him before the writ was returned, the objection thus made by these parties cannot be sustained. Judgment affirmed.