Ahrenberg v. Brown

• Decision Date: 02 November 1927
• Docket Number: 4.
• Citation: 139 A. 280,153 Md. 598
• Parties: AHRENBERG v. BROWN.
• Court: Maryland Court of Appeals

139 A. 280

153 Md. 598

AHRENBERG v. BROWN.

No. 4.

Court of Appeals of Maryland

November 2, 1927

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

Suit by Max Brown against Harry Ahrenberg and others. From an order overruling his demurrer to the petition and giving him leave to file an answer, defendant named appeals. Reversed and remanded.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, and SLOAN, JJ.

S Carroll Epstein, of Baltimore, for appellant.

J Purdon Wright, of Baltimore, for appellee.

DIGGES J.

The appeal in this case is from an order of the circuit court of Baltimore city overruling the demurrer of the appellant to the bill of complaint filed in that court by the appellee.

The well-pleaded allegations of the bill are assumed to be true for the purposes of the demurrer. The demurrer for that purpose admits the truth of the allegations contained in the bill, but denies the right of the complainant to require him to answer the allegations of the bill so far as this appellant is concerned. Having recourse, then, to the allegations of the bill, we find that David Houseman, on October 14, 1924, was the owner of two pieces of leasehold property known as 5 South Central avenue and 7 South Bethel street, Baltimore; that, on the said 14th day of October 1924, Houseman, together with others, executed a joint confessed judgment note, payable on demand, in favor of Max Brown, the appellee, for $1,000, with interest from date, and containing a stipulation providing for a 10 per cent. collection fee; that, on the 27th day of October, 1924, Houseman conveyed the said two properties to Carl B. Saiontz in consideration of the sum of $5 and other good and valuable considerations, and on the same day Saiontz, for a like expressed consideration, conveyed the said property to Houseman and Lillian Houseman, his wife, as tenants by the entireties. Both of these deeds were recorded on October 28, 1924; that between the date of the $1,000 note and December 27, 1924, Houseman paid to the appellee $125, representing the 10 per cent. collection fee, amounting to $100, and $25 on account of the principal of said note; that on the 27th of December, 1924, judgment was entered by confession in the Baltimore city court on said note for the sum of $975, to bear interest from date of judgment, and court costs; that, subsequent to the entry of the judgment, Houseman made payments on the principal of the judgment sufficient to reduce it to $817.20, and also paid interest on the same to January 5, 1926; that the appellee demanded payment of Houseman, who failed to pay said balance due on the judgment, although requested to do so on divers occasions; that the deeds of October 27, 1924, from Houseman to Saiontz, and from Saiontz to Houseman and wife, were made with intent to defraud, hinder, and prevent the appellee from collecting the balance due on the said judgment; that Houseman and wife, on the 20th day of September, 1926, also with intent to defraud, hinder, and further delay the appellee and other creditors, by their mortgage executed on said date conveyed said property to Harry Ahrenberg, one of the defendants named in the bill of complaint, and the appellant here; that Houseman has not only conveyed his real estate to himself and wife as tenants by the entireties, through the intermediary of Saiontz, but has also disposed of, and concealed, his personal property, if any he had, so that the same could not be found by the sheriff of Baltimore city. The prayers of the bill with which this appeal is concerned are that the deeds from Houseman to Saiontz and from Saiontz to Houseman and wife as tenants by the entireties be declared to be void, and be vacated and annulled, and that the mortgage from Houseman and wife to the appellant may be declared subject to the prior rights of the appellant. To this bill the appellee, as stated, demurred, and the other defendants, Houseman and wife, filed a combined demurrer and answer. The Chancellor by separate orders overruled both demurrers, and as to Houseman and wife, they having answered, further proceedings were ordered, while the appellant was given leave to file an answer within 15 days of the date of the order overruling his demurrer. From the last-mentioned order the appeal was taken to this court. The defendants Houseman and wife did not appeal, and we are not concerned with their rights or interest on this appeal, except in so far as it might affect the interest of the present appellant.

The single question, therefore, presented for determination is, Should the mortgage of the appellant be subordinated to the lien of the judgment of the appellee in respect to the property now owned by Houseman and wife as tenants by the entireties? Article 45, § 1, of the Code of Public General Laws of 1924, provides:

"That no acquisition of property passing to the wife from the husband after coverture shall be valid if the same has been made or granted to her in prejudice of the rights of his subsisting creditors, who, however, must assert their claims within three years after the acquisition of the property by the wife, or be absolutely barred, and, for the purpose of asserting their rights under this section, claims of creditors of the husband not yet due and matured shall be considered as due and matured."

Section 2 of the same article provides as follows:

"Whenever any interest or estate of any kind in any property, real, personal or mixed, situate, lying or being within this state, has been or shall hereafter be sold, conveyed, assigned, mortgaged, leased, transferred or delivered by any husband, directly or indirectly to his wife, and has been or shall hereafter be subsequently sold, conveyed, assigned, mortgaged, leased, transferred or delivered by such wife and husband during their coverture, or by such wife after such coverture has terminated, or has been or shall hereafter be subsequently devised or bequeathed by such wife during such coverture or after such coverture has terminated, the fact of such previous sale, conveyance, assignment, mortgage, lease or delivery by such husband, directly or indirectly to his wife, shall not hereafter be deemed or taken at law or in equity, to have given, preserved or reserved, nor to give, preserve or reserve to any subsisting creditor of such husband, by reason of any debt or obligation, claim or demand whatsoever, any other or greater right, lien or cause of action against such interest or estate, or against any third person, his heirs, executors, administrators or assigns, than such creditors would have had in case such interest or estate had been sold, conveyed, assigned, mortgaged, leased, transferred or delivered, or devised, or

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