Cole v. Cole , 1875 Md. LEXIS 48 ( 1875 )

Stewart, J.,

delivered the opinion of the Court.-

The bill alleges that the complainant advanced $1018 for the appellee, J. Alfred Cole, towards the payment of the purchase money for the lands mentioned in the proceedings, before the execution .of the deed to "him; and the sum of $260 subsequent thereto.

That it was agreed between Salathiel O. Cole, the complainant, and the appellee, Joseph Alfred Cole, to whom the property was conveyed, that a mortgage should be executed to secure the re-payment of the moneys advanced.

' That after the appellee had acquired the title by deed, he refused to make the mortgage, and for the purpose of defrauding tlie complainant, did, on tlie 9th of August, 1872, convey to his wife Dorcas Oole, one of the appellees, all his right and interest in the property.

Tlie hill prays that the deed from Joseph Alfred Cole to his wife may he vacated, and the land sold to satisfy the claim of the complainant; or that the said Cole may he compelled to execute a mortgage to secure its payment, and to have such other relief as the case required.

The appellees do not hy their answer specially deny the allegations of the bill; nor ,rely upon the Statute of Frauds, hut set up other defenses against the relief sought.

The proof in the cause, which has heen carefully examined, abundantly shows that the complainant did advance for Joseph Alfred Oole, at the time of the execution of the deed from Mordecai Ensor to him, the sum of one thousand and eighteen dollars, part of the consideration thereof, and that without this money the deed would not have heen executed.

It is further proved that the complainant afterwards advanced the sum of two hundred and sixty dollars to Joseph Alfred Cole, and from all the circumstances it may fairly he inferred that this amount was intended to be secured in tlie same way as the former advance.

The proof shows further, that it was agreed between the parties, that a mortgage of the lands in question should he executed hy Joseph Alfred Cole, to secure the complainant for his advances of money. It was further proved that a note was given at the time of the execution of the deed to stand as evidence -of the advance at that time, until a mortgage could he executed. The giving of this note, under the circumstances, did not destroy the right of the complainant to havo the mortgage executed. Joseph Alfred Cole having obtained the said advance upon the agreement to execute a mortgage upon tlie land to secure the repayment, is hound in equity and good conscience to performance on his part; and his interest in the property must be held answerable for the same, to the same extent as if the mortgage had been given, according to the agreement. A Oourt of Equity will hold him liable, and consider that as done which ought to have been done.

There' is nothing in the ^Statute of Frauds, if it had been pleaded, in conflict with this equitable principle.

That Statute was enacted to provide as far as possible against the perpetration of frauds; and Courts of Equity never allow its provisions to be perverted and made instrumental in the accomplishment of fraud. They decree the specific execution of agreements where there has been a performance on the one side, because the refusal to perform on the other side is a fraud ; and they will not permit the Statute designed to prevent fraud to be made an engine of fraud. Md. Sav. Inst. vs. Schroeder, 8 G. &. J., 93; Hamilton vs. Jones, 3 G. & J., 127 ; Artz &wife vs. Grove, 21 Md, 456 ; Moale vs. Buchanan, 11 G. & J., 314.

It was further proved that Dorcas Cole, the wife of Joseph Alfred Cole, had notice of this equitable demand of the complainant, and therefore any right she acquired thereafter, under the deed from her husband, must be held subject thereto.

The principles of equity require that the deed to her should be vacated so far as it interferes with the equitable right of the complainant.

It seems from the proof that according to the agreement the mortgage was to provide for the payment of the money advanced within six years from the execution of the deed conveying the land to Joseph Alfred Cole ; that bears date the 20th of August, 1869, and the debt would be payable by the 20th of August, 1875. The time limited will soon expire, and the execution of the mortgage specifically may be dispensed with; the appellee, Joseph Alfred Cole, to have the benefit of the stay of payment until the claim would mature; but the property must be decreed to be sold for the payment of the claim of the complainant, unless the same be paid by the time specified.

(Decided 15th January, 1875.)

The decree of the Circuit Court must he reversed, and that Court will decree, that unless the amount due to complainant shall he paid with the interest thereon, on or before the 20th of August, 1875, the property in the proceedings mentioned, or so much thereof as may he necessary, shall he sold for the payment thereof, free from all claim of the appellees, Joseph Alfred Cole and Dorcas Cole, his wife.

The cause will he remanded in pursuance of the provisions of the 28th sec. of Art. 5 of the Code, in order that it may he disposed of by the Circuit Court, in conformity with these views.

Decree reversed, and cause remanded.