Brydon v. Campbell

• Decision Date: 09 June 1874
• Citation: 40 Md. 331
• Parties: WILLIAM A. BRYDON v. MALCOLM CAMPBELL and SAMUEL L. GOVERNEUR, JR. MALCOLM CAMPBELL and SAMUEL L. GOVERNEUR, JR. v. WILLIAM A. BRYDON.
• Court: Maryland Court of Appeals

40 Md. 331

WILLIAM A. BRYDON v. MALCOLM CAMPBELL and SAMUEL L. GOVERNEUR, JR.

MALCOLM CAMPBELL and SAMUEL L. GOVERNEUR, JR. v. WILLIAM A. BRYDON.

Court of Appeals of Maryland

June 9, 1874

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

Wm. Walsh and S. Teackle Wallis, for Wm. A Brydon and Mrs. Mary D. Governeur.

J H. Gordon, for Malcolm Campbell and Saml. L. Governeur Jr.

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

The main questions presented by these appeals are: First. Has Governeur, Jr. any interest in the tract of land in controversy, and if so, to what extent? and Secondly. Is Brydon, the complainant a bona fide purchaser of the property, without notice of said interest?

The tract of land in question known as the "Bloomington property," was sold on the 16th day of January, 1855, by Thomas Devecmon, trustee, under a decree of the Circuit Court of Allegany County, and Samuel L. Governeur, Jr. was reported as the purchaser. From the subsequent proceedings it may be inferred, that the property was purchased in pursuance of some agreement between Governeur, Jr., and Governeur, Sr., the father, the precise terms of which are not satisfactorily proven. It appears, however, from the proof, that the purchase money was paid by Governeur, Senior. A short time after the sale by the trustee, Governeur, Sr. sold one-half of the property to John H. McBlair, for the sum of five thousand dollars; and a further interest of one-tenth to William McBlair for one thousand dollars. This last was conveyed by deed of November 1st, 1855. The sale of the one-tenth to Wm. McBlair, caused some difficulty between the father and the son, and led to the execution of the following agreement.

"A misunderstanding having existed respecting the Bloomington mining property, after explanation, it is understood and agreed between the undersigned; that one-half of said Bloomington Mining Co. is to be conveyed to J. H. McBlair." * * * * * * * * "That one-tenth of the said Bloomington Mining Co. is the property of, and to be conveyed to Wm. McBlair. * * * * That in respect to the remaining four-tenths of said property, they are to be conveyed to M. Campbell, subject to the following understanding:

Whereas, Samuel L. Governeur has heretofore advanced to his son, S. L. G., Junior, the amount of $____, and is desirous to further advance to him, such other sum, say $8016.00, in order to make up the sum of $10,000.00, the said S. L. Governeur, Jr. is to have an interest and a lien on the said 4-10ths in the hands of said Campbell, to the amount of the said $8016.00, payable to him in annual payments, in seven successive years, from this date, with interest, and the said Campbell agrees to hold the said 4-10ths to secure to the said S. L. G., Jr. the faithful payment of that sum as so agreed, and that payment made to convey the same to said S. L. Governeur, or to his order."

This agreement was signed by Governeur, Sr. and Governeur, Jr., on the 31st day of October, 1855, and witnessed by the late Judge Lee.

On the same day of the execution of this agreement, Governeur, Sr. and wife, conveyed to M. Campbell 4-10ths of the Bloomington property, in trust for Governeur, Jr., to secure the payment of the said sum of $8016.00. On the 11th of February, 1856, Governeur, Jr. and wife, by deed, in consideration of the sum of one dollar, assigned to Governeur, Sr. all the rights and privileges acquired by him as the highest bidder at the sale by Devecmon, trustee; and for the further sum of five dollars, assigned and transferred to Samuel L. Governeur, Sr. and wife, all their right and title to the tract of land now in controversy.

On the 14th of November, 1856, Governeur, Sr. and wife, by deed, in consideration of one dollar, conveyed to M. Campbell, four-tenths of the said tract of land, and also all other real estate in Allegany County belonging to Governeur, Sr., in trust for his son S. L. Governeur, Jr. This deed was acknowledged before a Justice of the Peace, but was not attested, as required by the Act of 1856, ch. 154, sec. 25, then in force; nor was it recorded until the 31st day of May, 1864. Seven years and six months after its date, and three days after Governeur, Senr. had contracted to sell to Brydon. Under this deed, Campbell the trustee, and Governeur, Jr. now claim title.

But to pursue the statement of the facts of the case, in their chronological order.

On the 22nd of November, 1856, eight days after the deed of trust to Campbell, Governeur, Senr. filed his petition in the Equity case, alleging that prior to the first day of November, 1855, he had purchased from Governeur, Jr., all his right, title and interest, and praying that an order might be passed directing Devecmon, the trustee, to convey to him nine-tenths of the same, and one-tenth to his grantee, William McBlair; and on the 24th day of the same month an order was passed by the Circuit Court as prayed in the petition.

On the 26th day of March, 1859, the rights and interests of the McBlairs, which had been seized under execution, were sold by the sheriff to Governeur, Senr. On the 28th day of May, 1864, Governeur, Senr. sold to Brydon all his right, title and interest in the property, "whatever he has or his son, S. L. Governeur, Jr. has," "believed to be the full right and title," for $4600, of which $1000 was to be paid on the delivery of the deed, and the balance in one, two and three years, with interest, to be secured by mortgage. Brydon went into possession, and on the 6th day of October, 1864, a deed was executed to him by Governeur, Senr.; one thousand dollars of the purchase money was paid, and a mortgage executed on the 8th day of October, 1864, to secure the balance according to their contract. On the 10th day of November, a deed was made by Devecmon, the trustee, conveying the property to Brydon, in compliance with an order of the Circuit Court passed upon Brydon's petition. And thereupon Brydon went on to build and improve, and early in 1865, had completed a dwelling house upon the property, costing $12,000 to $15,000.

Up to that time, according to the statement in the bill, and the testimony of Brydon, he had no knowledge of any claim on the part of Governeur, Jr., or his trustee, Campbell under the deed of the 14th of November, 1856, and was ignorant of the existence of such deed. His bill was filed in June, 1865, as he alleges, soon after he discovered that claims to the property were set up by Campbell and Governeur, Jr., praying to have the cloud thereby cast upon his title removed, and to be protected in the payment of the mortgage debt due from him on the property, to whoever may be declared to be entitled to the same.

Now, as we have said, the first question to be considered, is what interest did Campbell, trustee, or Governeur, Jr. acquire under the deed of the 14th of November, 1856? At that time Governeur, Senr.,...