Lanahan v. Latrobe , 7 Md. 268 ( 1854 )

Tück, J.,

delivered the opinion of this court.

It is impossible to pass a decree in this case, with any degree of certainty as to its effect upon the rights of the parties, in consequence of the imperfect condition of the record.

The appeal appears to have been taken from an order, passed in the consolidated cases of Pasquay vs. Latrobe, and Latrobe vs. Lanahan, et al., both of them involving the validity of the deed of trust from Lefferman to Latrobe. But we do not find in the record before us, any part of the proceedings on the bill filed by Pasquay : nor is there any thing either of exhibit, averment or proof, from which we can ascertain at what time the writs of ji. fa., relied on by Lanahan, and which Latrobe seeks to enjoin, were delivered to the officer to be executed.

The decree in effect vacates the deed to Pasquay and others, by directing an audit in disregard of its provisions'. As they have not appealed we cannot reverse the decree, if there be error, for their benefit; and whether Lanahan has any ground of complaint must depend, in part at least, upon his having-been a creditor of Lefferman at the date of Pasquay’s deed. The time of this indebtedness does not certainly appear any where, though from the auditor’s account, one of the debts bears interest before September 1851, but this is not proof of his claim. Besides, if he relies on this account, we might be required to say that he has, by participating in the proceedings for the distribution of the proceeds under the order of court, on the assumption that the deed to Latrobe is good, so far made himself a party to that deed, as to have waived his right now to deny its validity. Moale vs. Buchanan, 11 G. & J., 314. Jones vs. Horsey, 4 Md. Rep., 306. If he has not lost this right, he may certainly be required to elect how he will proceed :■ for he cannot insist upon the efficacy of his liens at law, in opposition to the deed as fraudulent, and in equity, claim to participate in the funds, without the concession that they are rightfully there for distribution among the creditors of the grantor.

He may have gained a priority by the time his executions were delivered to the officer, and this will be allowed him in the distribution in equity. But we cannot say that the fact was so. It appears that they were levied after the execution of the second deed, and we might adopt, with some reason, the suggestions of the appellant’s counsel, as inferences from the facts stated in the bill and answer, but then, the opposite conclusions, on the argument of the other side, if adopted, are as likely to be correct. In this state of uncertainty, we think the record should be remanded, under the act of 1832, ch. 302, in order that, if the case should again come before this court, we may be able to act more advisedly on the important questions presented at the hearing.

Cause remanded.