Moore v. Blondheim , 1862 Md. LEXIS 66 ( 1862 )

Cochran, J.,

delivered the opinion of this Court:

The proceedings in this case were instituted by Robert Moore and Charles Moore, on behalf of themselves and others, as creditors of Hertz Blondheim, for the purpose of setting aside a deed made to his wife, Caroline Blondheim, by Thomas J. Owen, on the 11th of August 1854, and to procure a sale of the property conveyed, and a distribution of the proceeds among the creditors of Hertz Blondheim. It appears from the record, that Blondheim was engaged as a dealer in ready-made clothing for some years before the execution of the deed by Owen, and that he continued in that business until the 16th of June 1857, when, finding or professing liimself to be in embarrassed circumstances, he executed a deed of Ms property to Abraham Rosenberg, in trust for the benefit of his creditors, and that he finally-applied for the benefit of the insolvent laws on the 10th of May 1858, Wm. Pinkney White, one of the appellees, having been then appointed his trustee. The claim of the appellants against Blondheim, originated after, although his dealings with them commenced prior to, the execution of the deed from Owen to his wife.

The substance of the allegations contained in the original and amended bills, upon which the determination of the case depends, is, that Blondheim made the purchase of the property from Owen with his own money, and procured the deed of the same to bo made to his wife, with the purpose and intent of becoming largely indebted to the appellants and others, and of hindering, delaying and defrauding those who might thus become his creditors, of their just dues and claims. The appellees deny these averments in their answers, and support the deed on the alleged ground that the purchase from Owen was made by Caroline Blondheim, with money belonging to her, and not derived from her husband; and the question, as to the validity of the deed as against the creditors of Blondheim, thus presented, constitutes the only material issue in the case. The opinion of the Court, delivered in the case of Banks vs. Williams, 11 Md. Rep., 198, establishes the doctrine, that a voluntary deed of a debtor may be impeached and set aside by subsequent creditors, in cases where the deed is executed for the purpose of defrauding them; and it cannot be doubted that a deed of a solvent grantor, made and registered in the partial execution of a purpose to defraud subsequent creditors, would, as to such creditors, be declared invalid and void, upon the consummation of the fraud. Upon principle, it would seem that a deed, fraudulent in fact, could not, by registration, be made effective against such, subsequent creditors, nor bar their right to' impeach it. In contenrplation of law, all the acts done, and transactions had, in pursuance of a purpose to defraud, are but one act. The order in which they occur, is immaterial, and any person within the range of the fraudulent purpose, and affected adversely by it, is entitled to have all, or any part of, the acts constituting the fraud, annulled and set aside.

As the allegation of fraud in the execution of the deed in this case, presents a question of fact, we proceed to consider whether it is sufficiently established by the evidence contained in the record, to justify a decree setting aside the deed. Upon a careful consideration of the testimony presented, we think it does not show, with sufficient certainty, the fraud alleged. There is no satisfactory evidence that Blondheim was the real purchaser from Owen, nor is there of the fact that the property ivas paid for by money claimed by or belonging to him. The prima facie proof of the deed, as to the consideration for which it was executed, is neither contradicted nor assailed by any direct evidence in the case; and in the absence of such evidence, the deed, supported by the positive answers of both Caroline Blondheim and her husband, must be held unaffected, Faringer vs. Ramsay, 2 Md. Rep., 375. Glenn vs. Grover & McColm, 3 Md. Rep., 212.

The evidence of Blondheim’s insolvency in 1857, without an explanation of its cause, might well excite susjoicions as to the honesty and good faith of his antecedent transactions, but, in our opinion, i£ does not reach the deed with sufficient force to impeach it. The testimony taken on the part of the appellees, to show that, anterior to the purchase, Caroline Blondheim was in possession of a considerable sum of money, which she loaned and dealt with as her own, and that the note she received for a sum loaned to Pollock,-was passed as a part of the consideration for the property conveyed to licr, although not entirely satisfactory, tends to support the deod, and free it from the imputation of fraud. As the case stands, we think the decree dismissing the hill, should not he disturbed.

(Decided December 5th, 1862.)

Decree affirmed.