Kerchner v. Kempton ( 1878 )

Bowie, J.,

delivered the opinion of the Court.

The Circuit Court of Baltimore City by its decree, dated the 17th of May, 1877, adjudged and decreed “that the exceptions to the ratification of the sale filed by the next friend of Rebecca Kempton, be ruled good and sustained for the reasons and cause therein specified.” It further decreed, that the sale therein reported be set aside, and “ the decree for the sale thereof under which the same was professed to have been made, is thereby annulled and set aside with costs.”

From this decree the complainant below appealed. Although in form exceptions to the ratification of the sale, the objections of the appellee are in fact allegations impeaching the mortgage on which the bill was filed, and the agreement and all the intermediate proceedings by which the decree was obtained, as being conducted without the knowledge, privity and consent of the exceptant, concluding with a prayer, that the sale be set aside, and the decree rescinded and annulled.

The decree for sale was passed on the 6th of July, 1876; — the sale reported on the 25th of August; — an order of ratification nisi passed on the same day, and the exceptions filed on the 11th of September, 1876.

These are substantially as follows, viz.,

1st. Because the consideration recited in the mortgage is not true as therein stated.

2nd. Because the execution of the mortgage by the ex-ceptant was procured by the undue importunity of her husband, which she was too weak to resist; the complainant confederating with the husband, with full knowledge of her condition, to procure the same, and intending fraudulently to deprive her of her property.

3rd. Because the mortgage had not become forfeited, the debts which it was designed to secure not being due at the time of the passage of the decree.

4th. That the exceptant had no notice of the proceedings in the cause until shortly before the sale, and all papers in the cause assenting to the proceedings were ■without''her knowledge and authority, and directed to be signed solely and exclusively by her husband, who is alone responsible therefor. Whereupon she prayed leave to dissent from all that was done under her ñamé, and that the sale may be set aside, decree rescinded, and the said mortgage be declared null and void.

The mortgage dated the 15th of January, 1876, from Rebecca C. Kempton and Sydney Kempton, her husband, of Baltimore City, etc., recites, “ whereas the said Sydney Kempton has agreed to pay the indebtedness of the co-partnership lately existing between him and Ferdinand Kerchner, and to discharge the said Kerchner from all liability for the same, said payments to be made in equal instalments, at three, six, nine and twelve months, etc., and whereas, the said Sydney Kempton has further agreed to pay the said Kerchner the sum of eight hundred dollars in two equal sums of four hundred dollars each, in four and eight months, according to his promissory notes of that date, given said Kerchner to that effect,” in consideration of the premises, and of the sum of one dollar, the said Rebecca C. Kempton and Sydney Kempton, granted to the said Kerchner all that lot of ground therein described, situate in the City of Baltimore, being the same piece of ground which by indenture dated the 24th of May, 1871, was conveyed by Ammon Cate to said Rebecca C. Kempton, etc.

After the usual provisoes, that upon payment of the debts intended to be secured, etc:, the mortgage should be void, and until default the mortgagors should retain possession, the mortgagors in the event of failure to pay the notes, etc., assented to the passing of a decree by the Oir■cuit Court of Baltimore City for a sale of the property thereby mortgaged, pursuant to the provisions of the Code ■of Public Local Laws, Article 4, secs. 782 to 792 inclusive, and the additional sections therein mentioned and referred to, to be made by the said mortgagee or his attorney, etc.

The mortgagee, Kerchner, filed his bill in the Circuit Court of Baltimore City, on the 19th of June, 1876, against the mortgagors, alleging that Sydney Kempton ■and the complainant had been engaged as partners in tire manufacture of leather, sometime previous to the year 1875, and in that year discovering that Kempton had withdrawn from the firm money belonging to it, chiefly for the purpose of purchasing and furnishing a house in the city, the title of which he had caused to he conveyed to his wife, etc., he had filed in said Gourt, á bill against said Sydney Kempton and wife, praying the dissolution of the firm, the appointment of a receiver, and to have the money so invested in the house and furniture brought back into the ‘firm for the payment of its debts by having said house and ■furniture sold for that purpose.

That an agreement, was made between the complainant Kerchner and Sydney Kempton, and another between said Kempton and the creditors of the firm of Kerchner & Kempton, (by which the said suit was terminated,) which agreements were parts of the settlement between himself and Kempton of said litigation.

By the agreement between himself and Kempton, Kerchner assigned to Kempton all his right and interest in the property and business of Kerchner & Kempton, •and Kempton agreed to pay all the debts of the firm and indemnify the complainant, and Kempton agreed to procure -a mortgage to be executed by himself and wife of the house and lot referred to, and to give him a bond with surety, which mortgage and bond were to secure the covenants of indemnity. The bill further charged that Kempton had violated the agreements entered into by him with the complainant, and the creditors of the firm; that he was wasting the assets of the firm assigned to him ; had not paid the creditors as agreed; that the whole amount of property remaining in Kempton’s possession was insufficient for the indemnity of the complainant, wherefore the complainant prayed that a decree be passed directing the sale-of the trust' property in the hands of Kempton, and the-collection of the trust assets and the sale of the mortgaged premises by a trustee to be appointed- by the Court, and the application 'of the proceeds of the sales according to. the trusts declared as to the same, etc. The bill prayed the appointment of a receiver to take charge of the property in the meantime, that the defendants, Kempton and wife be enjoined -from interfering with the property, and that they be summoned to show cause why the complainant should not have relief as prayed.

On the 20th June,.an order for the appointment of a. receiver and the issuing of an injunction was passed. The-injunction was returned “served” on Sydney Kempton; “non est” as to Rebecca; and the subpoenas were returned served as to the former, “ non est” as to the latter.

On the 6th of July, a paper was filed in the cause entitled “Agreement for Decree,” signed by the complainant, and Sydney Kempton, and several creditors of the firm under their hands and seals, and endorsed :

“ We hereby assent to the passage of the within decree.”' Subscribed. Chas. Marshall, Sol’rfor compl’t.

A. O. Trippe, Sol’r for defen’ts.”

This agreement contained among other clauses, the following :

“It is further agreed that the house known as No. 397 Druid Hill Avenue, described in the mortgage frown Sydney .Kempton and wife to said Kerchner, dated January 15th, 1876, and filed with the bill, shall forthwith be decreed to be sold by a trustee to be appointed by a decree in this case, and the proceeds applied to the uses and trusts declared as to the same in said mortgage, and to the payment of the debts secured thereby.”

“It is further agreed that the furniture mentioned in said mortgage shall not be sold, but that the same shall be and remain exempt from the operation of said mortgage.”

It was also agreed that all the creditors of the late firm of Kempton & Kerchner, as the same were on the 15th of January, 1876, shall accept this agreement in full satisfaction of their respective claims against the said firm, and “in consideration of the said agreement and its execution in good faith,” they released and discharged the said Sydney Kempton and Ferdinand Kerchner from all demands against said firm.

Said Kerchner agreed in like manner, etc., to release his claim against Kempton, and to release the mortgage above referred to, “ so far as it covers the furniture therein mentioned, and to release all claims he may have, and dismiss any suit he may have brought against aDy of the parties thereto.”

The Court on the 6th July, 1876, by its decree passed “ by agreement of parties filed in the cause, {and without deciding anything as to the allegations of the bill, with reference to the alleged misuse or misappropriation by the defendant Sydney Kempton of the property referred to in the bill and exhibits, as to which parts of the bill no decision is given or ashed by the parties,) and upon the agreement of the respective solicitors of the parties thereto annexed,” appointed a receiver and trustee, and directed the house and lot to be sold, etc.

The trustee sold the same for $4150, and reported the same to the Court, on the 25th of August, 1876. Whereupon the usual order of ratification nisi was passed, when the appellee filed her exceptions.

It is apparent from the preceding statement of the case, that the decree being passed avowedly upon 11 the agreement of the parties filed in the case,” and “ upon the agreement of the respective solicitors of the parties ” thereto annexed, the validity of the decree as far as it affects the appellee, depends entirely upon the authority of the solicitor to enter into such agreement on behalf of the appellee. The agreement of the parties referred to in the decree, was an agreement between Kerchner, Kempton, and certain persons who were creditors of Kerchner & Kempton ; the agreement of the respective solicitors of the parties, thereto annexed, is subscribed generally “solicitor for complainant,” “solicitor for defendants,” intended doubtless to represent Sydney Kempton and Rebecca O. Kempton, defendants named in the bill.

This agreement was obviously designed to operate as an answer, admitting all the allegations of the bill, and consenting to the decree as far as the parties to the cause were concerned, besides effecting a compromise or settlement between the firm of Kerchner & Kempton, and their creditors.

Mrs. Kempton is not named in the agreement as a party, or asked to subscribe it, although her separate property is the principal subject to be affected by it, and the main object of the negotiation between the contracting parties.

This agreement, not being executed by the wife conjointly with her husband, cannot bind her separate estate as such ; nor can it bind the appellee as an answer.

The case of Griffith vs. Clarke, 18 Md., 457, 463, cited by the appellant, (as far as cases in equity are involved,) does not sustain the position that in this State a husband may employ counsel to represent his wife in a litigation in which her separate property is concerned, and that in the absence of fraud or imposition the same counsel may represent both.

The judgment, the execution of which was enjoined in that case, was rendered against husband and wife as joint makers of a note, by default. There was no appearance for either.

This Court, speaking of that judgment said, “ the principle that a party cannot impeach a judgment on any ground which might have been pleaded or relied on below as a defence to the suit, does not apply to a case like this, where the defendant is a feme covert, and not ‘ sui juris.’ Persons in the condition of the appellee, are not competent to employ an attorney.”

“If she had appeared in the suit at law by attorney employed by her husband, and her coverture had been pleaded in defence to the action, the Court would have allowed the plea. But the question here is whether the .defendant being sued at law on a personal contract, altogether void at law, is to be prejudiced by the entry of a judgment by default against her, for non-appearance. In our opinion, such a judgment is merely void.”

It is said in Brown vs. Kemper, 27 Md., 673, that a judgment against the wife “ in invitum,” jointly with her husband, for a tort committed by her, will bind her and her property, but a judgment in an action “ex contractu” founded on a cause of action which she was not legally competent to make, can have no such effect.

If husband and wife are sued at law, the husband is to make an attorney for her. 2 Sand., 213 ; 6 Mod. R., 86 ; 3 Taunt., 261, for a feme covert cannot make an attorney.

As a general rule when husband and wife are sued jointly in equity, the feme covert answers with her husband, but under special circumstances she may put in a separate answer. Stor. Eq. Pleading, sec. 873 : but she is presumed to be so far under the dominion of her husband, that she is not bound by her answer made jointly with him. Alex. Prac., p. 84, note x; Warner, et al. vs. Dove and Wife, 33 Md., 584.

According to the English authorities, where husband and wife are made defendants to a suit in chancery, relating to personal property belonging to the wife, and they put in a joint answer, such answer may be read against them for the purpose of fixing them with the admissions contained in it, but, where the subject-matter relates to the inheritance of the wife, it cannot, and the facts relied on must be proved against them by other evidence. Vide Evans vs. Cogan, 2 Peere Wms., 449; Merest vs. Hodgson, 9 Pri., 563 ; Elston vs. Wood, 2 M. & K., 678; 1 Dan’l Ch. Pr.; also Lingan vs. Henderson, 1 Bland, 236.

In the case of Lyles vs. Hatton, 6 G. & J., 122, it was held that in a case against husband and wife in relation to a fund which comes to her in course of distribution, she should be compelled to answer, or some reason should appear on the record for not doing it, before a decree should be passed.

If the decree in this case had been passed in a cause between parties, “ sui juris,” represented by counsel and regularly submitted on bill and answer, its legal effect would have been to establish “inter partes” every fact' necessary to the passage of the decree ; but being passed by agreement of counsel whose authority to act for one of the defendants is denied, and is now the subject of inquiry, in a cause in which the defendant supposed to be represented is a feme covert, and was returned “ nonest,” no presumption can arise not warranted by the evidence.

The primary question therefore is, was the agreement of counsel submitting the case for a decree, an act which binds the appellee. We have shown, we think, she was not bound by the agreement as the answer of her husband, or the joint answer of her husband and herself, if it had purported to be such.

The solicitor signing the agreement for decree ’ ’ on behalf of the defendants, deposes he did not know Mrs. Kempton, never had any communication with her, except through her husband. The only evidence of the retainer of the solicitor by the appellee, is the presumption arising from the signing and swearing by her to an answer in a previous suit, and the execution of the mortgage in question, prepared by the solicitor.

The appellee testifies she had no counsel, never consulted with any lawyer; and referring to the answer in the other case, which was shown to her says, “ I don’t remember anything about this; I signed two papers: I remember one was the mortgage, but I don’t remember Mr. Kempton telling me what this paper was, being in a •sick condition, and so nervous I didn’t know what I was doing: I went before the magistrate and swore to the paper.”

Kempton, her husband, deposes his wife had no knowledge of the “ agreement for the decree.” There is no evidence of express authority being' given by the appellee to the solicitor to represent her, and none from which such authority could be reasonably implied.

The act of the solicitor, so far as ho undertook to represent the appellee, in signing the “agreement for decree,” must be considered unauthorized. In whatever aspect the ‘ ‘ agreement ’ ’ is viewed, whether as a contract affecting the real estate of the appellee, or an answer admitting the ■allegations of the bill, and consenting to the sale, it has none of the sanctions necessary to bind a feme covert defendant, as to her separate real estate.

A decree for the sale of real estate, passed without ■appearance of the defendant, or default made, and without consent, or proof under a commission, interlocutory, ■or otherwise, must necessarily be null and void.

It is assumed in the brief of the appellant, that the Court below, having adjudged that the exceptions to the ratification of the sale be ruled good, for the reasons and •cause therein assigned, all the propositions contained in the exceptions are judicially established, and he proceeds to argue, and overcome them seriatim,-; but, the decree sustaining the exceptions, does not declare the mortgage void,-but sets aside the sale, and annuls the decree under which it was made. The reasons assigned for the decree, are no part of the decree; In affirming the one, we do-not necessarily adopt the other.

(Decided March 1st, 1878.)

The decree of the Court below, setting aside the sale, and the decree under which the sale was made, will be affirmed with costs and cause remanded.

Affirmed and remanded.