Morsell v. Baden , 22 Md. 391 ( 1864 )

Cochran, J.,

delivered the opinion of this Court.

It is scarcely necessary to say, that imder the existing Constitution, the particular relief sought by this bill cannot now be granted. When the bill was filed, a sale of the negroes, Caroline and Solomon, might have been decreed, upon the presentation of a proper case, but as they have been declared free by the organic law of the State, the claim of tbe appellant, that they should be sold for the purpose of paying the debt alleged to be due to him from the estate of his intestate, can no longer be maintained. In view, however, of the question of costs, we think it proper to express in brief, our opinion of the case, as it stood upon the law when it was argued; and for that purpose, it will be sufficient to determine whether the deed, manumitting the negroes, Caroline and Solomon, was executed in prejudice of any then existing right of the appellant, as creditor of his intestate, the party executing the deed. The appellant, to prove his claim, offered in evidence a short copy of a judgment rendered against him, in favor of James and William Morton, for the amount of a single bill, dated the 1st of January 1834, executed by Jeremiah M. Baden, with the appellant as surety. It also appears from the testimony of William Morton, that the single bill was given by Baden for the aggregate amount of a debt, a large portion of which was contracted prior to the 1st of January 1833, and that the judgment, above mentioned, was paid by the appellant in 1846. This claim is the only one supported by evidence, although the bill was filed on behalf of such other creditors as should come in and. contribute to the costs of the suit. The appellee alleges, that upon the payment of the above mentioned judgment, he was entitled to be substituted to the previous rights of the Mortons, as creditors of Baden, and that the deed of manumission was in prejudice of those rights, and therefore void.

It is evident from this statement of the case, that the appellant, even if substituted to the rights of the Mor-tons, as they existed before judgment, would not be entitled to claim as a creditor prejudically affected by the deed. The debts, due from Baden to the Mortons previous to the 1st of January 1834, were merged in the single bill; and if it bo assumed, that the appellant could be substituted to rights behind the judgment, or such as existed in the Mortons before the judgment was entered, it seems quite clear that he could acquire only such as they possessed as creditors on that obligation. The previously existing debt, could not be looked to for the purpose of aiding the surety, for that debt, so far as it was possible to be the subject of a credit, was extinguished by the execution of the single bill, and it therefore follows, that the appellant, as surety, in claiming to be a creditor of his principal, by substitution to the rights of the obligees, must limit his claim to the liability of his principal on the single bill. In this view, which is the most favorable one that can be taken for the appellant, it is plain that the deed of manumission was not executed to his prejudice, for he was not then a creditor. In the case of Allein and Sharp, 7 G. & J., 96, and in Gornish and Wilson, 6 Gill, 320, the provision contained in the Act of 1796, ch. 67, sec. 29, that such a deed should not “be in prejudice of creditors,” was construed to mean, creditors at the time of executing the deed.

Here, the most that the appellant can claim is the right of a creditor on a single bill, executed nearly a year after the execution of the deed which he seeks to have vacated. It is proper to observe further, that while the bill goes for the general relief of the creditors of Baden’s estate, there is nothing to show the actual fact, that any one of them was prejudiced by the deed manumitting these negroes, although that may have been the real state of case; but we cannot assume that it was so, in the absence of the full proof to which the appellant was put by the answer of the appellees. We also find from the record, that a considerable sum of money, belonging to the estate of Baden, passed into the hands of the appellant as his administrator, the distribution of which does not appear; and on that ground, the proceedings in this case would seem to have been premature. The right to vacate. the deed, could have been maintained only on proof of tbe exhaustion of the real and personal estate, and its insufficiency for the payment of tbe debts. We affirm the decree, dismissing the bill, with costs to the appellees.

(Decided November 25th 1864.)

-Decree affirmed,