Glenn v. Clark , 53 Md. 580 ( 1880 )

Bartol, C. J.,

delivered the opinion of the Court.

The first question to he considered in this case, arises-upon the exceptions of the appellants to the admissibility of evidence tending to establish or set up the infancy of" the appellee, at the time of the execution of the mortgages of January 19th 1830 and July 19th, 1831.

This exception is based upon the alleged insufficiency of the averments in her original hill and amended hill to-raise that issue, and also upon the effect of her admissions in the agreed statement of facts, and in her amended answer, which, it'is contended, amount to a waiver of her-right to assert or rely upon her alleged infancy, and preclude her from denying the binding effect of the mortgages for that cause.

With respect to the original hill, it is clear that theappellee was not called on to anticipate the defence of the appellants, or to urge or rely upon the fact of her infancy. By her general replication, she put in issue the defences relied on in the answer, and cast upon the respondents, the onus of proving the existence, due execution and binding effect of the mortgages. Her admission in the agreed statement of facts that “ she concurred in the two-mortgages as stated in the answer,” amounts to no more-than an admission of the fact that she had so concurred, and does not import that she was at the time of full age,. or that the same are valid and binding upon her. In the same manner, her offer in the amended hill to “ allow in the settlement of this cause to the defendants, whatever sum may he ascertained to he fairly and equitably due by her, as her contribution towards the redemption of such mortgage or mortgages as it may appear she joined in according to law, so as to bar and defeat her said dower,” does not in our judgment amount to an admission that she was of full age, or preclude her from alleging and relying on her infancy, and offering proof in support of that fact, nor can it he construed as a waiver of her rights in that respect. For these reasons the exceptions of the appellants to the bill and amended bill for insufficiency, and their exceptions to evidence of the infancy of complainant are overruled. At the same time we are of opinion that there is no sufficient evidence in the cause, that the appellee was in fact under the age of twenty-one years, when she united in these mortgages. The agreement of November 30th 1877, relied on, for that purpose, cannot in our judgment he construed as establishing the fact. It is stated in the agreement that she was then, sixty-seven years of age ; but it is not stated at what time she attained that age, it cannot he construed to mean that she had reached that exact age on the day the agreement was filed. If she was 67 on or before the 19th day of July of that year, then it is obvious that she was of full age when she united in the mortgage to Columbus O’Donnell, a fact which would he quite consistent with the agreement ; the day and year of her birth are not stated, and it is therefore not clearly shown at what time she reached the age of twenty-one years.

Moreover, looking at the circumstances under which the agreement was made and the evident object and purpose of appellants’ counsel in making it, as stated by him, which was solely for the purpose of determining the allawance of dower to the appellee, if any should he allowed, with, regard to which, under the chancery rule, her precise age would not he material, we cannot hold that the agreement establishes the fact of her infancy as alleged. But as we have said, she is not precluded from setting up this defence, and as the case must he remanded, for this and other reasons to he stated hereafter, she will have an opportunity of offering proof on this point, if it shall he deemed material in the further progress of the cause.

The next question to he considered arises upon the cross-bill, and the exceptions of the appellee thereto, and to the admissibility of “ Exhibits X, 7, Z,” filed therewith.

One ground on which the cross-bill is sought to he maintained, is that appellants' solicitor was taken hy surprise, when in the argument of the cause the appellee’s solicitors alleged that she was an infant under the age of twenty-one years when she united in the mortgages. But as we have said, there was nothing in the pleadings, or íd her admissions, to preclude her from setting up and relying upon her infancy, it is obvious that the cross-hill cannot he supported for this cause.

The only affirmative relief asked hy the cross-hill is that the two mortgages in question, in case the same were executed when the appellee was not of full age, shall be confirmed and made valid hy the Court under Art. 16, sec. 31, of the Code.

The power conferred upon the Courts of Chancery hy this provision was first given hy the Act of 1832, ch. 302, which was passed after the mortgages in question had been executed. That Act is not retrospective in its operation . and therefore could have no application to the present case. But in addition to this objection, it is clear that the provisions of the Act, and of the Code, even if they had been in force at the date of the mortgages, would confer no power upon the Court to confirm a mortgage executed hy a feme covert infant, after she had attained full age and against her consent. The whole intent and purpose of the statute is to confer upon the Courts the power to confirm and make valid a conveyance hy an infant feme covert, which might he shown, during her infancy, to he equitable, expedient or proper looking to her benefit, and does not apply to any case, after such infant feme covert has attained full age.

The appellants not being entitled to this, the only affirmative relief prayed in their cross-hill, there remains no other ground stated therein upon which the cross-bill can he maintained. The rule is well settled that “ a hill of this kind which seeks no discovery, and makes no defence which was not equally available hy way of answer to the original hill, will he dismissed.” Story Eq. Pl., sec. 389.

We refer also to 2 Daniel Ch. Pl. & Pr., 1648 and 1659, where the same rule is stated. “The plaintiff in a cross-bill cannot contradict the assertions in his answer in the original suit.” 2 Daniel, 1652. It follows that the cross-hill of the appellants must he dismissed. It appears, however, from the matters therein disclosed, with reference to the mode in which John Clark acquired the title to the property in question, and the nature of his seisin thereof, that the appellants may he entitled to a valid defence in this suit, provided the facts are alleged in proper form by way of an amendment to the answer in the original case, and are. established hy competent and sufficient proof.

It is very clear that under the rules before stated, these new matters of defence cannot properly be presented hy a cross-bill. And the question arises whether the appellants, after the admission made in their original answer, and by the agreement of November 30th, 1877, with respect to the seisin of John Clark, ought to be allowed now to amend their answer, setting out the facts showing the nature and character of the seisin actually held hy John Clark. It appears from the allegations in the cross-hill, which we may look at for this purpose, that these facts were not known to the appellants when their original answer was filed, and the agreement of November 30th, 1877, was made, and that they have since been discovered. It is argued on the part of the appellee that these new facts ought to have been known to the appellants when they answered the original bill, and entered into the agreement above stated, and that it is too late now for them to allege and rely on the same. But when it is considered that the appellants were not parties to the transactions of' John Clark in the original acquisition by him of the property, which took place more than twenty-four years before the original bill was filed, and that until the defence of infancy was set up, they had no motive for looking into the title of John Clark and of the appellee, prior to the date of the first mortgage, we think that laches in this respect cannot be properly imputed to the appellants, and as the newly discovered facts appear to be material, and if established, constitute a meritorious defence, the appellants ought to be allowed to file an amended answer, setting forth the manner in which John Clark acquired title and the nature of his seisin. The right of a party to amend “at any time before final decree, so as to bring the merits of the case in controversy fairly to trial,” is conferred in the most comprehensive terms by the Code, Art. 16, sec. 16. This right is not ex debito, but as decided in Calvert vs. Carter, 18 Md., 74, depends upon the sound discretion of the Court. Yet in a case like the present, where laches cannot be imputed to a party, and the facts constituting the grounds of defence, have been discovered for the first time during the progress of the cause, it is-equitable that the amendment provided for in the Code ought to be allowed.

The power to remand the case for that purpose is conferred on this Court by Art. 5, sec. 28. Under this section it becomes our duty to express our opinion on all points made before us, or which may be presented by the record, so far as the same appeap -to us to be material for the decision of the case.

This opinion must be, in some respects, hypothetical, as we cannot with certainty anticipate the position the case may assume when the pleadings shall be amended, and additional proof furnished. These propositions may however be laid down for the government of the Court helow, in the further progress and final disposition of the case.

It appears from the record that the title of the appellants was derived indirectly from the General Insurance Company, which purchased the property from Gatchell, trustee, appointed to sell the same, by a decree recovered by said company against John Clark under a mortgage, dated January 16th, 1834, in which mortgage the appellee did not unite. The title thus acquired by the General Insurance Company, was subject to the liens of the prior mortgages made by Clark, in two of which the appellee united according to law, relinquishing her dower.

These prior mortgages were subsequently paid by and assigned to the General Insurance Company, and the title thus acquired by purchase and assignment is held hy the appellants.

1st. Assuming that John Clark had during the coverture, a beneficial legal seisin in fee, and that the appellee was of full age when she united in the mortgages of January 9th, 1830 and July 19th, 1831; she cannot claim dower against the mortgagees, and their assigns, except subject to such mortgages, and is bound to contribute for the payment of the mortgage debts and interest, and she is dowable of the surplus only. Mantz vs. Buckman, 1 Md. Ch. Dec., 202; Stewart vs. Beard, 4 Ib., 319; Lynn vs. Gephart, 27 Md., 547 ; Bank of Commerce vs. Owens, 31 Md., 320.

2nd. If under the age of 21 years at the time of the execution of those mortgages or either of them; the rights-of the appellee are in no manner hound or affected thereby; an infant feme covert cannot relinquish her dower hy uniting in a mortgage, blit the same is void as to her.

3rd. But although the appellee was not of full age when the mortgage of January 19th, 1830 was executed, yet if the same was given to secure the purchase money, either to the party from whom the title was derived, or to a third person from whom the purchase money was obtained hy the purchaser upon an agreement that such mortgage should he executed, she cannot claim dower as against the mortgagee or his assigns, her right of dower being subordinate to the lien of the mortgage, to the payment of which she is bound to contribute, and she is dowable of the surplus only. Hobbs vs. Price, 47 Md., 360. We refer also to Wheeler vs. Morris, 2 Bosworth, 524, where this subject is considered in an able opinion by Judge Woodruff.

The foregoing propositions have been stated upon the assumption that John Clark had a beneficial legal seisin in fee during the coverture. We now proceed to consider the effect of the facts stated in the record, with respect to the original acquisition of title by John Clark, and as. shown b)’ Exhibits X, Y, Z, if the same be duly proved.

Erom these it appears that John Clark acquired a mere ■equitable right by his contract of purchase from the trustees Glenn and Winchester, of this his wife would not be entitled to dower, as he was divested thereof during his life-time; it being well settled that the wife’s right to dower in the equitable estate of her husband exists only where the husband is possessed of such estate at the time his death. Miller vs. Stump, 3 Gill, 304; Bowie vs. Berry, 1 Md. Ch. Dec., 452; Purdy vs. Purdy, 3 Ib., 547; 1 Scribner, ch. 19, sec. 25; Ibid, ch. 20, sec. 45.

It appears that this equitable right was conveyed hy Clark to the Savings Bank absolutely, from which he rented the property, and that subsequently, the purchase money having been paid by the Savings Bank to the trustees, the latter, by a deed, in which the Savings Bank joined, conveyed the estate in fee to John Clark, who simultaneously executed to the Savings Bank the mortgage of January 19th 1880, to secure the payment of the purchase money. The deed and the mortgage apparently constituting one transaction.

The law in such case is thus stated by Chancellor Kent: “A transitory seisin for an instant, when the same act that gives the estate to the husband, conveys it out of him, as in the case of a conusee of a fine, is not sufficient to give the wife dower. The land must rest in the husband beneficially for his own use, and then if it he so vested, but for a moment, provided the husband he not the mere conduit for passing it, the right of dower attaches. Nor is the seisin sufficient when the husband takes a conveyance in fee, and at the same time mortgages the land hack to the grantor, or to a third person to secure the purchase money in whole or in part. Dower cannot he claimed as against the rights under that mortgage.” 4 Kent, 39 m. The law is stated in the same way by Scribner, vol. 1, ch. 12, secs. 39, 40. Where it is said: “The deed and mortgage, although in themselves separate and distinct instruments, nevertheless under the circumstances above stated are regarded as parts of the same contract. They take effect at the same time, and the giving of the deed upon the one part, and of the mortgage upon the other, is held to constitute hut a single act, and to result in clothing the purchaser with the seisin for a transitory instant only. With rare exceptions, this is the established doctrine of the American Courts. Nor is it necessary that the mortgage should he made directly to the vendor. It is sufficient if it he made to a third person for his benefit. And where the mortgage is of even date with the deed, and both instruments are recorded at the same time, the mortgage although not made to the vendor, will he presumed to have been executed for the purchase money, contemporaneously with the conveyance, and the right of dower of the wife of the mortgagor will therefore be limited to the equity of redemption.” And in sec. 41, it is said: “The rule is the ■same where a third person advances the consideration money for the lands, and takes from the vendee, to whom they are conveyed by the vendor, a mortgage to secure the re-páyment of the money thus advanced. It has been determined in the Courts of several of the States, that in cases of this description, the right of dower of the wife of the vendee is subordinate to the lien of the mortgage.”

In support of this position many authorities are cited; among them is the case of Clark vs. Monroe, 14 Mass., 351. There the land was conveyed by Andrews and wife to Clark, who by his deed dated and executed at the same time mortgaged the same land to Winthrop in fee, who furnished the consideration for the deed. The Court said: “ It was decided in Holbrook vs. Finney, that a conveyance in fee and a re-conveyance by the grantee to the grantor in mortgage, being considered as parts of the same transaction, did not give to the grantee such a, seisin as entitled his wife to have dower in the granted premises. In the case at bar, the mortgage was to a third party, but still the whole constituted but one transaction. We are not able to view the case in any light different from what it would have presented, had the mortgage of Clark been made to Andrews and wife instead of Winthrop.” In that case the assignee of .the mortgagee had entered and foreclosed under the mortgage, and then assigned the premises to the party in possession, and it was held that the widow cf the mortgagor was not entitled to dower, the seisin of her husband having been instantaneous only. The same is the established law in Maryland. McCauley vs. Grimes, 2 G. &. J., 318; Rawlings vs. Lowndes, 34 Md., 641, 643. We refer also to Gammon vs. Freeman, 31 Maine, 243, and Welsh vs. Buckins, 9 Ohio St., 331.

It follows from these authorities that the transaction as evidence, by the “ Exhibits X, 7, Z,” if they shall he duly established in proof, conferred upon John Clark a mere transitory seisin, which gave to his wife no right of dower as against the Savings Bank. Her right of dower would he only in the equity of redemption, and as that equitable estate was afterwards conveyed by John Clark by subsequent mortgages executed by him, and was divested by the sale under the mortgage of the -General Insurance Company, so that at the time of his death he did not possess any equitable right or estate in the property, it follows that his widow would have no right of dower therein. And in this view of the case it becomes unnecessary to inquire whether the appellee was of full age when she united in the mortgage of January 19th, 1830. As her concurrence therein would he wholly unnecessary, if the seisin of her husband was merely transitory or instantaneous.

It is very clear upon the' authorities that such was the nature of his seisin, as the same appears upon the face of the Exhibits X, 7, Z. The legal effect of these exhibits, and the inference to be drawn from them, is that the legal title was conveyed to John Clark only to enable him to execute the mortgage to the Savings Bank- to secure the payment of the purchase money which had been furnished, or loaned to him by the Savings Bank. But this inference may he rebutted or countervailed by proof, showing that the deed and the mortgage did not, in fact, form parts of one and the same transaction. But that they were separate and independent of one another, and that consequently the seisin vested in John Clark was a beneficial seisin.

For the reasons stated, and as it appears that the substantial merits of the cause will not he determined by the reversing or affirming of the pro forma decree of the Circuit Court, and that the purposes of justice will be advanced by permitting further proceedings in the cause, through an amendment of the pleadings, and the introduction of further evidence; therefore, without affirming or reversing the decree helow, the cause will he remanded for further proceedings, as provided hy the Code, Art. 5, sec. 28.

(Decided 21st May, 1880.)

Cause remanded.

Since the opinion was filed in this case, the solicitors for the appellee have called the attention of the Court to the cases of Heuisler vs. Nickum, 38 Md., 270, and Ahern vs. White, 39 Md., 409, which are supposed to he in conflict with the views hereinbefore expressed, as to the nature of the seisin of John Clark, as the same appears from Exhibits X, Y, Z.

These cases were cited in the argument of the cause, and have not been overlooked hy the Court; hut were not particularly referred to in the opinion, for the reason that the question under consideration in this case did not arise in them, and was not therein decided. In Ahern vs. White, a lease for ninety-nine years was executed, and simultaneously, a mortgage was executed by the lessee to the lessor; it was held that the mortgage was entitled to a priority of lien over a judgment rendered against the lessee, before the date of the lease and mortgage, for the reason that the lease and the mortgage constituted one and the same transaction. It was said by the Court that if, instead of a lease, a deed in fee had been executed, and simultaneously a mortgage hy the grantee, the deed and mortgage constituting one and the same transaction, the wife of the grantee would not be entitled to dower. The decision is therefore quite in accord with the foregoing opinion.

The decision of Heuisler vs. Nickum turned upon the construction of the 3rd section, Art. 64, of the Code, in which the term “ purchase money ” was held to mean the sum stipulated to he paid by the purchaser to the vendor, and did not include money that may be borrowed to complete the purchase. This last decision rests upon the construction of the words of the Code, and has no application to the doctrine of transitory seisin.

Where a conveyance is made to a purchaser and at the same time and as part of the same transaction, the purchaser executes a mortgage to secure the purchase money, it is well settled that the seisin thus acquired by the purchaser is of such an instantaneous or transitory nature, that the dower of his widow does not attach, or in other words, her right of dower is subordinate to the right of the mortgagee. If instead of making the mortgage directly to the vendor, it be made to a third person who furnishes the purchase money, or from whom it is borrowed by the purchaser for the purpose of paying the purchase money, the same principle of equity applies in favor of the mortgagee, provided the whole constituted one and the same transaction; and in such case the rights of the mortgagee are paramount to the right of dower of the wife of the purchaser.