Willis v. Bryant , 22 Md. 373 ( 1864 )

G-oidsboRoush, J.,

after stating case {ante pp. 374, 375,) delivered the opinion of the Court as follows:

The first question presented for our consideration, is a motion made by the appellee to dismiss this appeal, upon the ground that though the appeal was taken within the time prescribed by the 6th section of Article 5 of the Code, yet the bond to prosecute the appeal, was not given within thirty days; and that the giving of the bond was a condition precedent, and it should have been given when the appeal was taken. In considering this motion, we shall advert to the Act of 1849, ch. 88. That Act first gave the right of appeal in insolvent cases, and it required the appeal to be entered within thirty days, and a certified copy of the record in the cause to be transmitted to the Appellate Court, within sixty days from the date of the judgment, and that the judgment, decree or order appealed from, should not be “suspended or stayed, unless bond be given in such penalty,” &c. By the 6th section of the 12th Article, and the 20th section of the 48th Article of the Code, it is provided, that “any person interested may appeal from the decision of the Court on any question arising under the Insolvent law: provided such appeal be taken in thirty days, and bond be given to the State to prosecute with effect, or pay costs and damages.” According to the grammatical construction of these sections, which are identical, the limitation is confined to the time of taking the appeal, and the bond required, may be given after the thirty days, and the giving the bond is a condition precedent only to the prosecution of the appeal. We are, therefore, of opinion, that the appeal in this case was properly before this Court, and. the motion to dismiss the same, must be overruled.

We shall proceed to consider the case upon its merits, and in doing so, we deem it important to determine how far the rights of the appellant are affected by his having those rights adjudicated in an Insolvent Court. While under the 10th section of Article 48 of the Code, the estates of insolvents shall be distributed under the order of the Court, according to the principles of Equity;” yet when we find by the 4th section of the same article, that? the insolvent is discharged from all debts and contracts made before the filing of the petition, and such discharge shall embrace all cases where he is endorser or surety, and he shall not be liable to pay any joint contractor, surety or endorser who may pay any debt or perform any contract after the filing of his petition, which was entered into before the filing of such petition. It is manifest that this total exemption of the insolvent, would apply in this case to Tully, the vendor, who would be forever hatred from recovering his vendor’s lien, if he were compelled to pay the appellant upon his guaranty, and that too when Tully had expressly refused to convey the legal title, until the whole purchase money was paid. This cannot be held as a distribution of the insolvent’s estate, according to the principles of equity; especially as the insolvent trustee sells the whole estate of Wright, and Tully could be compelled to convey the legal title, — his only redress being to come into the Insolvent Court and prefer his claim for the purchase money as a creditor of Wright. It cannot be questioned that if Tully had not assigned the bills for the purchase money, his claim would be a claim of preference, and wo think it is well said by the appellant, that, in consequence of the guaranty he was claiming the fruits of the vendor’s lien, for the benefit of the vendor. It was not equity to divert the fund from the party entitled to it.

(Decided November 25th 1864.)

The cases relied upon, by the appellee, and referred to by the Circuit Court, are cases where either the assignments were made without recourse, or where the guaranty was lost by the neglect of the assignee, in not prosecuting the claim against the debtor with due diligence. In this case, the claims were not only guaranteed, but were prosecuted with due diligence, and Tully’s liability over, beyond question or escape. Under these circumstances, we are of opinion that the Circuit Court erred in passing the order of ratification appealed from, and that the order must be reversed and the case remanded for further proceedings, according to the views expressed by this Coui't.

Order reversed with costs to the appellants, and cause remanded.