Strike v. M'Donald & Son , 2 H. & G. 191 ( 1828 )

Earle, J.

at this term, delivered the opinion of the Court. This cause originatéd on the equity side of Baltimore county court, and was removed to the court of chancery, under the provisions of the act of 1824, ch. 196, where it received a final determination. On the 28th of May 1822, the county court, expressed, an ©pinion, that the deeds; of the 16th of January 1811, from Rogers to Strike, mentioned in the proceedings, were executed for the purpose of defrauding, the creditors of Rogers, .and without bona fide consideration, and ordered, adjudged and decreed, that the said deeds were null' and void as against the complainants; and. further ordered, adjudged and decreed, that the property therein contained be sold, and that Henry W. Rogers-and. Samuel Moale- be appointed trustees, for the purpose of making the sale. And all equities as to the distribution of the proceeds of sale, were reserved by the court for hearing, on the trustees’ report, or bringing into court the money or securities arising on the sale. The auditor then stated an account,, which was excepted to1 by both parties; but the exceptions were not acted upon before the case was transferred to the court of chancery, where it made its appearance in October 1825. It was argued at large upon 5ts merits at March term 1S26, and on the 10th of April following, the chancellor referred it to the auditor in chancery, to state an account, having in view the explanations, determinations and directions, made and given by him; and he overruled the former auditor’s statements and reports, so far as the same were inconsistent with his then determinations and directions. Pursuant to these directions of the chancellor the auditor stated and reported two accounts. One between the estate of Rogers and the trustees, and the other between Strike and the same estate. And in the last account, Strike is charged with rents and profits, to a large amount, and has received no credit or allowance for necessary and permanent improvements, taxes, ground rent, or sums assessed for the extension of Pratt street. To this report he took many exceptions, all of which the chancellor overruled, and by his order of the 15th of May 1826, the report and statements of the auditor were ratified and confirmed; and the trustees were directed to apply the proceeds accordingly, with the interest that had been, or might be received. And the chancellor further ordered, that Strike pay to the complainants $5907 01, with interest thereon from the 14th of September 1822 until paid, with the costs, not included in the report of the auditor, to be taxed by the register.

From these several decrees and orders Strike appealed to this court, and they present the subjects which are now to engage our attention.

The appeal from the decision of the county court of the 28th of May 1822, has given rise to a point in this court, that could not have arisen before the chancellor. It has been made a question, wliether that appeal was taken within the time prescribed by the acts of assembly. It was taken on the 29th of May 1826, and when more than three years had elapsed from the time of making the decision. For Strike it was strenuously argued, that it was not a final decree, and therefore not within the operation of the act of 1807, eh. 151; while his opponents’ counsel as warmly urged it to be a final and conclusive judgment; and that if considered a decretal order only, the appeal was equally barred by length of time.- •

• Our examination of this point has been anxious and diligent, and it has conducted us to the conclusion, that it is unnecessary to determine on the nature of the decision; for whether it is a final decree, or only a decretal Older,' the appeal from it appears to have come too late. If viewed as a decretal order of Baltimore county court, it should have been appealed from within nine months from the time of making it, by the terms of the act of 1785, ch. 72, s. 27. This act was passed long before the enlargement Of the equity jurisdiction of the county courts; but when that jurisdiction, within the legitimate sphere of its operation, was made concurrent and co-extensive with the powers of' the court of chancery, it necessarily took with it all the laws and regulations relating to equity matters in that high tribunal, and among others, it carried with it all the provisions of this act of assembly. It must th.en be considered on a footing with a decretal order in the court of chancery, which is to he appealed from within nine months from the time of making it. This is not a permissive privilege, as was said in argument, to be exercised or not in the election of the party, and to be postponed at his pleasure until the final decree. The law is imperative, and .the alleged error, if insisted on, must be appealed from within nine months from the time of making the order, and not afterwards.

The phraseology of the act is too plain to be mistaken, and. whatever inconvenieneies in practice our construction of it may produce, it is conceived it can be made to bear no other. With all our research we have been unable to light upon a case where our courts have given to the act a more convenient interpretation; and we confess we should have been much relieved, if such an adjudication could have been found to have been made by them. We would, willingly have taken it for our guide, and made it the foundation of our judgment- But in the absence of an adjudged case, we feel that we are bound to construe'the act agreeably to its language; and it in. terms is, that the appeal be .made within nine months from the time of making the decision appealed from, and not afterwards.

The disposition thus made of the question on the time of the appeal, makes it unnecessary to examine into several points discussed before us. They were suggested by the proceedings anterior to the decision of the 28th of May 1822, and in strictness were improperly brought into the argument. Excluding them from our consideration, it only remains for us to express in general terms our entire approbation of the steps pursued by the chancellor in the case, after it was transferred to his court. He very properly viewed all the proceedings as having taken place in the same tribunal, and treating the decree of May 1822 as a final decree, he went on to settle and complete what it left undetermined. The complainants’ bill prayed that the defendants might be made to account for rents and profits; and on the 3 0th of April 1826, he referred the case to the auditor to state an account, including rents and profits, with other matters in the cause. In this he was clearly right. The decree had established the fraudulent conduct of the defendants, and vacated the deeds from the one to the other; and surely if Strike’s possession of the property conveyed commenced in fraud, his continuation of that possession partook no less, of the same illicit character; and it may be well received as a settled principle of equity, that whosoever comes into the possession of an estate by fraud, must account for rents and profits, when the fraudulent conveyance is vacated and set aside.

The further directions of the chancellor to reject from the account allowances for advances and improvements made by Strike, we think also perfectly correct. The reserved equities of the decree had no view to the interest of Strike; arid the bleeds having'been annulled, because they originated in a frau»' dalent combination to cheat the creditors of Rogers, they are to be considered void ah initio, and wholly «'anting in legal fitness to stand as securities for any advances whatsoever. They have, in truth, no lawful existence; and to use the words of an eminent civilian, “it would be inconsistent and absurd to recognize them for any lawful purpose.” The quoted passage of Sugd. 525, furnishes a sound practical rule for rejecting claims for improvements, where the transaction is tainted with fraud. It is expressed nearly in these words: If a man has acted fraudulently, and is conscious of a defect in his title, and with that con» viction on his mind, expends a sum of money in improvements* he is not entitled to avail himself of it.. Its just application to Strike’s situation is too obvious to be enlarged upon. His deeds from Rogers were grossly fraudulent in fact, being made under corrupt motives to cheat, and his improvements were made soon after, while his conscience was broad awake to his title, and his mind probably engaged in contrivances to escape detection.

The chancellor’s last order of the 15th of May 1826, ratified the auditor’s statements and report, made in, conformity to his. directions, and by it Strike’s numerous exceptions were properly overruled.

DECREE AFFIRMED!