Hupe v. Seibert ( 1846 )

Spence, J.,

delivered the opinion of this court.

Abraham Barnes made his application for the benefit of the insolvent laws of Maryland on the 12th day of May 1840, to Thomas Keller, a justice of the orphans court of Washington county, by whom John T. Mason was appointed trustee, for the benefit of the creditors of the said Abraham Barnes. The record shews, that the trustee gave bond, and the petitioner executed a deed to him, for all his estate, real, personal and ¡nixed, for the benefit of his creditors, on the 12th day of May 1840; and at the same time gave a schedule of his property as follows: “one-seventh of one thousand acres of land in Western Virginia; one-seventh of ten or twelve lots in Washington city; and the reversionary interest in a deed of trust, executed to William Price and David G. Yost, on the 11th of October 1839.”

The attachment in this case was issued on the 6th day of August 1842; and the sheriff, in his return, certifies, “that on the 16th day of August 1842, he attached, of the goods and chattels, rights and credits, of Abraham Barnes, in the hands of Michael Seibert, the sum of money, with interest and costs, for the use of the within named Da,vid Hupe, use of C. D. and J. Slingluff; and that he made known to the said Michael Seibert,” &c. At the return of the writ of attachment, Seibert, the garnishee, appeared, by his attorney, to whom the plaintiff exhibited interrogatories, to which Seibert, the garnishee, filed the following answer: “to the first interrogatory, this garnishee answers and says, that at the time the said attachment was laid in his hands, he had rented a portion of the Montpelier lands, which had been conveyed by said Barnes and others to trustees, and that the following portions of the crop, raised on said lands, and to which the said Barnes was entitled, were in the hands of this garnishee,” a balance due for wheat, com, and oats, of $301.77.

At the trial of this cause, the defendant, to maintain the issues on his part, offered in evidence the insolvent papers of A. Barnes, and among them the schedule and deed of A. Barnes, the petitioner, to J. T. Mason, his trustee. To the admissibility of which instruments the plaintiff objected, but the court overruled the objection, and the same was given to the jury, as admissible and competent evidence in the cause.

This judgment of the court raises the first question under the exceptions in this cause. It was indispensable on the part of the defendant, in order to maintain the issues on his part, to shew, that A. Barnes had been discharged under the insolvent laws of Maryland; and under the provisions of the act of 1827, chap. 70, sec. 1, it is expressly provided, that no county court, judge of a county court,-or justice of an orphans court, shall grant a personal discharge under an application for the benefit of the insolvent laws of this State, until such applicant shall execute to his trustee a good and sufficient deed of conveyance for all his estate, real, personal and mixed, (except wearing apparel, &c.,) and until the trustee, so appointed, shall certify in writing to the said county court, judge or justice, as the case may be, that he is in possession of all the estate of the applicant, mentioned in his schedule.

Under this act of Assembly, the deed and schedule were admissible to shew the conveyance to his trustee. The insolvent’s deed was, unquestionably, admissible evidence, and the schedule, and other insolvent papers, were necessary to lay a foundation for the introduction of the deed. The deed was evidence, whether the grain or credits attached, were named and described in the deed and schedule, or not, for by (he deed all the estate, real, personal and mixed, of the petitioner, passed to the trustee, and his title -was good against all the world, except a creditor under the act of 1827, chap. 70, sec. 7; and if the grain was grown, or the credit accrued, subsequent to the date of the insolvent’s deed, it was the grain, or debt of the trustee, because it was the produce of his interest in the land under the deed.

The instruction asked by the plaintiff’s second prayer, presented, according to the case made by the record, an irrelevant and abstract proposition.

It does not appear from the proceedings, that the attachment was laid upon any lands, or interest in land, which belonged to Barnes, the debtor, or that any such right or interest was attached. The sheriff’s return to the attachment is, that he had attached in the hands of Michael Seibert goods and chattels, rights and credits, of A. Barnes, the sum of money, &c.

It certainly is no easy task to determine satisfactorily from the garnishee’s answer, whether he had in his hands the grain mentioned, or owed Barnes the sum mentioned, the proceeds of the grain; neither is it important. It certainly was not land, or any interest in the lands, reserved to Barnes under the deed of the 11th October 1839.

If this grain, or the debt due for the grain, accrued to Barnes before he executed the deed of the 11th of May 1840, it was not mentioned and included in his schedule, and was, therefore, under the act of 1827, chap. 70, sec. 7, liable to the attachment. But if the grain, or any part of it, was grown on the lands in which Barnes reserved the usufructuary interest, subsequent to the date of said deed, then the grain, or such part of it as was made or grown, subsequent to the date of said deed, or the proceeds thereof, were not subject to the attachment.

There is no evidence iri the record which shews when the grain was made or grown. It is admitted, that the increment accrued subsequent to the deed to Price and Yost, but it is not stated, whether before or after the deed to Mason, the insolvent’s trustee, and as this was a question which should have been left to the jury, the court erred in taking it from them, by instructing them that they must find a verdict for the defendant.

JUDGMENT' REVERSED AND PROCEDENDO AWARDED.