Bratt v. Bratt

• Decision Date: 03 June 1864
• Parties: SAMUEL BRATT v. COMFORT C. BRATT, ADM'X OF JOHN BRATT, DECEASED.
• Court: Maryland Court of Appeals

21 Md. 578

SAMUEL BRATT v. COMFORT C. BRATT, ADM'X OF JOHN BRATT, DECEASED.

Court of Appeals of Maryland.

June 3, 1864

APPEAL from the Circuit Court for Baltimore County:

The bill in this case was filed on the 13th day of November 1858 by the appellee, to enforce a vendor's lien against certain leasehold estate sold by her to the appellant. The facts of the case are fully stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and BARTOL and GOLDSBOROUGH, J. Samuel Snowden, for the appellant:

The appellant contends that the decree is erroneous, upon the following grounds:

1st. That the appellee has no lien against the leasehold property sold by her to the appellant for the purchase money, or any part thereof. Winchester vs. Brooks, 2 H. & J., 1. Lupin vs. Marie, 6 Wend., 77. James vs. Bird, 8 Leigh, 510. Beam vs. Blanton, 3 Ired Eq., 59. Bottorf vs. Conner, 1 Blackf., 287. Springer vs. Walters, 34 Penn. S. R., 328. Woods vs. Burrough, 2 Head., 202. Pratt vs. Vanwyck's Executors, 6 G. & J., 495. The Code, Art 16, sec. 130, does not apply to this case, the proceedings being pending before its adoption.

2d. There is not sufficient evidence in the record to show that the appellee was entitled to the relief granted by the decree, because there is no proof of the insolvency of Samuel Bratt, nor that the appellee had exhausted her remedies at law against him. Pratt vs. Vanwyck's Executors, 6 G. & J., 495. Richardson vs. Stillinger, 12 G. & J., 477. Ridgaway vs. Toram, 2 Md. Ch. Dec., 303. Eyler & Matthews vs. Crabbs, 2 Md. Rep., 153.

3d. There is no proof in the record to show that the appellant was, at the time of the taking of the testimony, indebted to the appellee on account of the purchase money, whilst there is proof to show that the whole purchase money was paid by the appellant at the time of the purchase.--Exhibit A.

4th. That at the time the decree was passed the case was not ready for final decree, but should have been referred to an auditor to state an account between the parties, so that the true amount of indebtedness might have been ascertained before final decree. Wylie vs. McMakin, 2 Md. Ch. Dec., 413.

5th. That there is no proof in the record to show, that the appellee is administratrix of John Bratt, deceased.

6th. That these points are properly raised in this Court, notwithstanding the authorities referred to by the appellant's counsel. Eyler & Matthews vs. Crabbs, 2 Md. Rep., 153. Lippy vs. Masonheimer, 9 Md. Rep., 310. Alex. Ch. Pr., 30. Purviance vs. Dorsey, 2 G. & J., 311. And this case having been instituted prior to the adoption of the Code, sec. 130, of Art. 16, of Pub. Gen. Laws, does not apply. Code of Pub. Gen. Laws, Art. 1, sec. 1. Art. 5, sec. 1, Sup. Code.

Henry C. Wysham, for the appellee:

1st Point. The appellee has a lien upon the leasehold property sold by her to the appellant. Code, Pub. Gen. Laws, Art. 16, sec. 130. Elliott vs. Edwards, 3 Bos. & Pul., 181. 3 Sugden on Vendors, 188, 189. Winter vs. Lord Anson, 3 Russell, 492. Matthew vs. Bowler, 6 Hare., 110. 2 White & Tudor's Le. Ca., title " Vendor's Lien. "

2d. The Court of Equity having assumed the jurisdiction, and there having been no objection made by the appellant in the Court below, this Court cannot take notice of his plea to the jurisdiction since the Act of 1841, ch. 153, and the objection is therefore made too late. O'Neill vs. Cole, 2 Md. Rep., 107. Knight vs. Brawner, 14 Md. Rep., 1. In O'Neill vs. Cole, pp. 109 and 110, the answer reserves exception to the jurisdiction, and yet the Court says, that it was not properly made, and it was too late to take the exception above.

3d. The evidence is clear that the defendant never paid the money, nor pretended to have paid any. The acknowledgment of payment of purchase money in a deed is only prima facie evidence, and may be contradicted or explained by parol. Spalding vs. Brent, 3 Md. Ch. Dec., 414. Wolfe vs. Huver, 1 Gill, 84 and 90. Gully vs. Grubbs, 1 J. J. Marshall, 388.

4th. The averments in the bill do not raise the question of accounts, the exact amount due being ascertained and stated in the proof. The auditor's office was unnecessary, a reference to whom is discretionary with the Court. Code, Pub. Gen. Laws, Art. 29, p. 193, sec. 9. Also under the Act of 1861, ch. 33, the appellant is precluded from raising the question of accounts in this Court, not having done so in the Court below.

5th. There is no evidence that there are any accounts which the auditor could state. The bill is filed by an administratrix, and there could be no set-off or account in bar except as against the complainant as administratrix. Such set-off or account in bar could not arise out of any claim of the defendant as distributee, because no distribution can be had until after the settlement of the administratrix against the defendant.

6th. The deed executed by the complainant, as administratrix, to the defendant, estops him from denying that she is administratrix. The account filed by her, (Exhibit B,) shows that she is administratrix. It is unnecessary to produce letters of administration, because she is not suing upon any claim of the late John Bratt, the intestate, but upon a contract between herself, as administratrix, and Samuel Bratt, the defendant.

OPINION

GOLDSBOROUGH J.

The bill of complaint which was filed in this case on the 13th day of November 1858, in the Circuit Court for Baltimore County, alleges, that the complainant, as administratrix of John Bratt, sold and conveyed to the appellant, certain leasehold property in the City of Baltimore, which belonged to her intestate,-- the purchase money therefor, amounting to $9100; that at the time of the sale, there were outstanding mortgages against this property to the amount of $7000, for the payment of which, the appellant was allowed to retain that sum, leaving a balance due the complainant of $2100; that she did not take any note or obligation to secure the payment of this sum, and claims to hold a vendor's lien on the property for the same; that the appellant has wholly failed to pay the amount claimed, and resists the payment on the ground that there are unsettled accounts between the complainant and himself, and that she has repeatedly requested him to state his account, but has never been able to induce him to do so. The bill further prays that an account may be stated under the authority of the Court.

The appellant being summoned failed to appear and answer the bill, and a decree pro confesso was taken against him. A commission to take testimony ex-parte was issued; and on the return thereof, the Circuit Court passed a final decree directing the appellant to bring into Court the sum of $2100 by a day therein named, with interest from the 8th day of December 1852; failing so to do, the Court ordered the property conveyed to the appellant, to be sold for the payment of appellee's claim. From this decree this appeal was taken.

We are therefore to consider whether the allegations in the bill supported by the exhibits and testimony in the cause, will justify a Court of Equity in...