Abramson v. Horner
| Decision Date | 04 April 1911 |
| Parties | ABRAMSON v. HORNER et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.
Action by Morris Abramson against Albert N. Horner and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, THOMAS PATTISON, and URNER, JJ.
Robert Biggs and Richard B. Tippett, for appellant.
T Scott Offutt, for appellees.
The appellant in this case, being the holder of a judgment recovered against Albert N. Horner, one of the appellees, for the sum of $3,283.66, filed in the circuit court for Baltimore county, sitting in equity, his bill against the appellees, Albert N. Horner and Harry C. Fox, praying therein that a deed from Jennie B. Hieatzman and husband to Harry C Fox, one of the appellees, dated the 29th day of November 1907, and filed with the bill as an exhibit, be set aside and declared void, and the lands described therein he sold for the payment of the indebtedness aforesaid. The bill alleges that the lands mentioned in the deed are the property of Albert N. Horner, and that Fox has no interest whatever in them, and that the conveyance of them to Fox by Mrs. Hieatzman and husband was merely a scheme on the part of Horner to hinder, delay, and defraud his creditors, particularly the appellant; that Albert N. Horner has no property standing in his name, so far as the appellant has been able to discover after diligent research, from which the payment of the indebtedness aforesaid can be realized; that the claim upon which the judgment was recovered existed for a long time before the above-mentioned conveyance of the lands. Horner, in his answer, alleges that he has no "personal or specific knowledge" of the recovery of the judgment against him or of the conveyance of his sister, Mrs. Hieatzman, and husband to Fox, or of the interest of Fox in said lands, and therefore could neither admit nor deny the allegations of the bill in relation thereto. He denied that said lands belonged to him, or that they had ever belonged to him, and further denied that the conveyance of the land to Fox was a scheme on his part to hinder, delay, or defraud his creditors or any of them. He also denied that the claim upon which the judgment was recovered had existed for a long time prior to the conveyance aforesaid, and alleged that he had been able at all times and was at the time of the filing of the bill able to pay all claims against him.
Fox in his deposition, taken under sections 17 and 18, art. 35, of the Code of 1904, stated that he was a resident of Waynesboro, Pa., and was at that time 64 years of age and a machinist by trade; that his wife was Horner's cousin, and that he was in Baltimore on the occasion of the execution of the deed from Mrs. Hieatzman and husband to him; that he went there at the request of Horner and is the party to whom Mrs. Hieatzman and hunsband conveyed the lands, and is the person who thereafter executed a mortgage thereon to Joseph R. Gunther. He testified that he did not pay anything for the lands, but was acting for Mr. Horner, and had "no further interest than to oblige Mr. Horner." He could not recall whether he had, after executing the mortgage, executed a deed with the name of the grantee left blank, but, when asked if the title to the lands still remained in him, he said, "It does not." He did not know, however, when he conveyed it, but it had been conveyed, and this was done at the request of Mr. Horner. He could not recall whether he had executed a second mortgage on the property. He stated that he had repeatedly acted for Mr. Horner as grantee and mortgagor in relation to various properties in Baltimore and elsewhere when he had no interest in the same, "except expenses and anything that was given me for my trouble." In the last two years prior to his testifying he had executed for Mr. Horner many deeds and mortgages relating to property in which he had no interest.
Joseph B. Sauter, the former owner of the lands, testified that he sold them for $7,000, of which the sum of $4,800 was paid by the certified check of Albert N. Horner delivered to him by one J. Wesley Evans, through whom the sale had been effected, and the balance thereof, the sum of $2,200, was in a mortgage resting upon the lands held by one Reinhold. When the deed therefor was to be executed, he was asked to convey the property to Mrs. Hieatzman, which he did. He never knew or heard why he should have been asked to do so. This deed from Sauter to Mrs. Hieatzman was executed on the 26th day of July, 1907.
John Timanus testified that he acted for both Sauter and Evans, as well as for Mr. and Mrs. Reinhold, the mortgagees, in the sale and conveyance of said lands by Sauter. He prepared the deed to Mrs. Hieatzman, as directed by Evans. He did not know why Horner's check was used in part payment of the purchase money, but, as the check was certified, that did not bother him. Timanus also testified that he was one of the counsel for Horner in this case, although it does not so appear upon the record.
Joseph R. Gunther, an attorney of Baltimore city, testified that he was applied to by Evans in 1907 for a loan upon these lands. Evans, when he first applied, did not say for whom the application was made, but later, when asked who would execute the mortgage, he stated that he was making application for Albert N. Horner and produced the deed from Sauter to Mrs. Hieatzman, as well as other title papers. Evans stated, however, that the mortgage would be executed by Mrs. Hieatzman, that Mrs. Hieatzman was a sister of Mrs. Horner, and "was holding the title as a matter of convenience for Mr. Horner." Gunther said he was afterwards told that Mr. and Mrs. Hieatzman had declined to sign the mortgage, and that it would be executed by Fox. Mr. Gunther then prepared the deed to be executed by Mr. and Mrs. Hieatzman to Fox, as well as a mortgage from Fox to him as trustee. On the occasion of the delivery of the deed and mortgage and payment over of the consideration thereof, Horner, Evans, and Fox were all present. The new mortgage was for $2,600. After applying so much thereof as was necessary to the payment of the old mortgage with accrued interest and certain expenses that had been incurred by the filing of the mortgage for foreclosure, there was left of the consideration the sum of $1.96. This was paid by check drawn to the order of Fox and handed him, which was at once indorsed by him and delivered to Horner. He further testified that in the title papers handed him by Evans there was a deed executed by Jennie B. Hieatzman and husband of the same date as the deed from Sauter to Mrs. Hieatzman. In this deed the name of the grantee was left blank. Evans explained why this was done by saying "it was executed in that shape so that Mr. Horner could insert the names of such persons as he saw fit." Fox executed the mortgage, and signed the notes upon being told to do so by Mr. Horner.
Robert Biggs, counsel for the appellant, in whose hands the claim had been placed for collection, made careful investigation of the land records to discover any property standing in the name of Horner, but found none, nor was he able to locate any personal property belonging to Horner. He found upon the records debts owing by Horner amounting to at least $5,000 in addition to the judgment of Morris Abramson.
John Wesley Evans, who, as testified to by him, was an examiner of mines, made an examination of the lands in dispute to ascertain whether or not they contained asbestos, and found the property, as he thought, worthy of development and secured from the owner, Sauter, an option to purchase it. Not having the money himself with which to exercise this option and to purchase the land, he called upon Mr. Horner to borrow it, but was told by him that he had no money, but could get it from his sister, Mrs. Hieatzman. The amount required was $5,000 in addition to the mortgage resting upon the land. Horner gave Evans his individual check for $5,000, which was delivered by him to Sauter in part payment of the purchase money for the farm, and at his request the deed was executed to Mrs. Hieatzman; that he had no personal knowledge as to whose money it was, more than what was told him by Horner; that in the purchase of this land it was agreed, as he said, between Horner and himself that in the event of a sale thereof he was to have one half of the amount received therefrom over and above the amount paid to Sauter therefor, and, as he understood it, Mrs. Hieatzman was to have the other half, although he had no conversation with Mrs. Hieatzman previous to the conveyance to her; that he had never met Fox until he came to Baltimore to execute the mortgage; that his name was first mentioned to him by Horner. He admitted that he had applied to Mr. Gunther for the loan in the name of Mr. Horner, and further stated that the interest accruing on the mortgage while held by Mr. Gunther was paid by him to Mr. Gunther with money furnished him by Mr. Horner.
Horner testified that the money with which the land was purchased was the money of his sister, Mrs. Hieatzman; that he furnished this moeny in order to make some money out of it for his sister, as well as to protect Evans; that later the parties holding the mortgage upon the lands were about to foreclose it, and it became necessary to place a new mortgage upon the property in order to raise the amount with which to pay off the old one; that he did not like to ask his sister to ask her husband to join in a mortgage for her benefit when her husband had no mortgage on his own property. It was for this reason that the land was conveyed to Fox in order that he might...
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