Baltimore Bldg. Ass'n No. 2, of Baltimore City v. Grant

• Decision Date: 05 March 1875
• Parties: THE BALTIMORE BUILDING ASSOCIATION NO. 2, of BALTIMORE CITY v. SIDNEY D. GRANT and CELIA A. GRANT.
• Court: Maryland Court of Appeals

41 Md. 560

THE BALTIMORE BUILDING ASSOCIATION NO. 2, of BALTIMORE CITY v. SIDNEY D. GRANT and CELIA A. GRANT.

Court of Appeals of Maryland

March 5, 1875

APPEAL from the Court of Common Pleas.

This suit was instituted by the appellees to recover from the appellant the value of certain real estate sold under proceedings to foreclose a mortgage. The facts of the case are sufficiently stated in the opinion of the Court. The plaintiffs offered three prayers; the first and second were refused; the third was granted. The defendant offered two prayers which the Court (GAREY, J.,) refused. The verdict and judgment being for the plaintiffs, the defendant appealed.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER, ALVEY, and ROBINSON, J.

James McColgan and Wm. M. Merrick, for the appellant.

The instruction was erroneous for the following reasons: First there was no evidence offered of any fraud or guilty knowledge on the part of the defendant upon which the hypothesis of the prayer could be submitted to the jury. Second, the plaintiffs below taking the mortgaged premises by deed subsequent to the mortgage, were in legal privity to the proceedings in Equity to sell, and in that cause should have interposed their objections to the sale and the appropriation of the proceeds thereof, and having stood by, cannot now, in a collateral proceeding, impeach the validity and regularity of the sale, as they clearly might have done in the Equity cause, if the hypothesis of their prayer had any foundation in fact. They do not show in proof or aver in any part of the case, that they were in point of fact ignorant of the progress of the Chancery proceedings, nor could they be ignorant of them.

Third this Court will observe that the pleadings in this cause, all profess to sound in contract express or implied, and that tort, conspiracy or deceit is nowhere alleged as a cause of action. The first five counts are the common money counts and the two last, if they have any signification at all, are merely expansions of the fourth, viz: of money paid by the plaintiffs for the defendant at its request.

Nothing can be clearer than that a mortgagee or other party holding property subject to a lien, cannot by making adversary proceedings necessary, and declining to pay the lien, until a judicial enforcement thereof, subject the party primarily liable to the debt, to the costs and expenses of the judicial procedure; nor can he claim from the principal debtor, the price at which his property has been sold under execution. He can only claim to be repaid the amount of the principal and legal interest of the debt for which his property was bound, in a count for money paid. If these propositions are true, and they seem to be too elementary to require a citation of authority in their support, the instruction granted the plaintiffs was erroneous in prescribing an excessive and illegal measure of recovery.

O. F. Bump, for the appellees.

If one is compelled to pay the debt of another, the law implies a promise on the part of him for whom the money is paid, on which an action may be sustained, for in such case it is not voluntary, but a compulsory payment. Mayor vs. Hughes, 1 G. & J., 480; 2 Greenl. Ev., sec. 114; Rushworth vs. Moore, 36 N. H., 188; Butler vs. Wright, 20 Johns., 367; Wright vs. Butler, 6 Wend., 284; Gibbs vs. Bryant, 1 Pick., 118; Pownal vs. Ferrand, 6 B. & C., 439; Sanborn vs. Emerson, 12 N. H., 57.

Interest may be allowed from the time of the payment of the money. Gibbs vs. Bryant, 1 Pick., 118.

Assumpsit lies to recover money obtained through the medium of oppression, imposition, extortion or deceit. McQueen vs. State Bank, 2 Ind., 413; Penn vs. Flack, 3 G. & J., 369; 2 Greenl. Ev., 120.

The Statute of Limitations runs only from the time of payment. Barker vs. Cassidy, 16 Barb., 177.

This is a case of fraud, and the Statute begins to run only from the time of the discovery. First Mass. Turnpike Co. vs. Field, 3 Mass., 201.

The judgment was rendered, February 10th, 1874. The bill of exceptions was filed, and dated May 1st, 1874. This is not sufficient. Walton vs. U. S., 9 Wheat, 651; Ex parte Bradstreet, 4 Pet., 102; Phelps vs. Mayer, 15 How., 160.

BARTOL C.J., delivered the opinion of the Court.

In this case the judgment was rendered on the verdict of the jury, upon the 10th day of February, 1874. The bill of exceptions appears to have been signed and sealed on the first day of May, 1874. It has been contended on the part of the appellee, that it was then too late, and that therefore there is no sufficient bill of exceptions before us, and in support of this position we have been referred to Walton vs. U. States, 9 Wheaton, 651; Ex parte Bradstreet, 4 Peters, 102; and Phelps vs. Mayer, 15 Howard, 160. In Walton vs. U. States, the bill of exceptions stated that the evidence was objected to at the trial, but did not state that any exception was then taken to the decision of the Court. The Supreme Court after adverting to this fact, say, "But the more material consideration is, that the bill of exceptions itself appears on the record not to have been taken at all, until after judgment. It is a settled principle, that no bill of exceptions is valid, which is not for matter excepted to at the trial."

The Court then add. "We do not mean to say that it is necessary, (and in point of practice we know it to be otherwise,) that the bill of exceptions should be formally drawn and signed, before the trial is at an end. It will be sufficient, if the exception be taken at the trial, and noted by the Court, with the requisite certainty; and it may, afterwards, during the term, according to the rules of the Court, be reduced to form and signed by the Judge; and so in fact is the general practice. But in all such cases the bill of exceptions is signed nunc pro tunc; and it purports on its face to be the same, as if actually reduced to form, and signed pending the trial. And it would be a fatal error, if it were to appear otherwise; for the original authority under which bills of exception are allowed, has always been considered to be restricted to matters of exception, taken pending the trial, and ascertained before the verdict."

In Ex parte Bradstreet, which was an application for a mandamus, requiring the inferior Court to sign a bill of exceptions, tendered by counsel, Chief Justice MARSHALL, who delivered the opinion of the Court said: "The Court will observe, that there is something in this proceeding which they cannot, and which they ought not to sanction. A bill of exceptions is handed to the Judge several weeks after the trial of the cause, and he is asked to correct it from memory. The law requires that a bill of exceptions should be tendered at the trial. But the usual practice is to request the Judge to note down in writing the exceptions, and afterwards, during the session of the Court, to hand him the bill of exceptions, and submit it to his correction from his notes. If he is to resort to memory, it should be handed to him immediately, or in a reasonable time after the trial. It would be dangerous to allow a bill of exceptions of matters dependent upon memory, at a distant period, when he may not accurately recollect them. And the Judge ought not to allow it."

"If the party intends to take a bill of exceptions, he should give notice to the Judge at the trial; and if he does not file it at the trial, he should move the Judge to assign a reasonable time within which he may file it. A practice to sign it after the term must be understood to be a matter of consent between the parties, unless the Judge has made an express order in the term, allowing such a period to prepare it."

In Phelps vs. Mayer, which came up on writ of error, for the purpose of reviewing the ruling of the Court below in granting certain instructions and refusing others, it appeared that " no exception was taken to them while the jury remained at the bar. The verdict was rendered on the 13th of December, and the next day, the plaintiff came into Court and filed his exception. There was nothing in the certificate from which it could be inferred that the exception was reserved pending the trial and before the jury retired." Objection was made that the exception was too late, and the Court held that the objection was fatal.

Chief Justice TANEY, speaking for the Court said it has been repeatedly decided "that it must appear by the transcript, not only that the instructions were given or refused at the trial, but also that the party who complains of them excepted to them while the jury were at the bar. The Statute of Westminister 2nd, which provides for the proceeding by exception requires, in explicit terms, that this should be done; and if it is not done, the charge of the Court or its refusal to charge as requested, form no part of the record, and cannot be carried before the appellate Court by writ of error. It need not be drawn out in form and signed before the jury retire; but it must be taken in open Court, and must appear by the certificate of the Judge who authenticates it, to have been so taken. Nor is this a mere formal or technical provision. It was introduced and is adhered to for purposes of justice. For if it is brought to the attention of the Court that one of the parties excepts to his opinion, he has an opportunity of reconsidering or explaining it more fully to the jury. And if the exception is to evidence, the opposite party might be able to remove it by further testimony, if apprised of it in time." The learned Chief Justice refers to Sheppard vs. Wilson, 6 How., 275, where the same rule is affirmed.

We have quoted at some length the language of those great jurists because it expresses in a clear and forcible manner...