Cole v. Cole

• Decision Date: 15 January 1875
• Parties: SALATHIEL O. COLE v. JOSEPH ALFRED COLE, and DORCAS, his Wife.
• Court: Maryland Court of Appeals

41 Md. 301

SALATHIEL O. COLE v. JOSEPH ALFRED COLE, and DORCAS, his Wife.

Court of Appeals of Maryland

January 15, 1875

APPEAL from the Circuit Court for Baltimore County, in Equity.

This was an appeal from a decree of the Court below, dissolving an injunction which had been previously issued on a bill filed by the appellant, to restrain the appellees from selling or disposing of the property in the proceedings mentioned, and dismissing the bill. The case is further stated in the opinion of the Court.

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

John T. B. Dorsey and Levin Gale, for the appellant.

John T. Ensor and J. Frederick C. Talbot for the appellees.

STEWART J., delivered the opinion of the Court.

The bill alleges that the complainant advanced $1018 for the appellee, J. Alfred Cole, towards the payment of the purchase money for the lands mentioned in the proceedings, before the execution of the deed to him; and the sum of $260 subsequent thereto.

That it was agreed between Salathiel O. Cole, the complainant, and the appellee, Joseph Alfred Cole, to whom the property was conveyed, that a mortgage should be executed to secure the re-payment of the moneys advanced.

That after the appellee had acquired the title by deed, he refused to make the mortgage, and for the purpose of defrauding the complainant, did, on the 9th of August, 1872, convey to his wife Dorcas Cole, one of the appellees, all his right and interest in the property.

The bill prays that the deed from Joseph Alfred Cole to his wife may be vacated, and the land sold to satisfy the claim of the complainant; or that the said Cole may be compelled to execute a mortgage to secure its payment, and to have such other relief as the case required.

The appellees do not by their answer specially deny the allegations of the bill; nor rely upon the Statute of Frauds, but set up other defenses against the relief sought.

The proof in the cause, which has been carefully examined, abundantly shows that the complainant did advance for Joseph Alfred Cole, at the time of the execution of the deed from Mordecai Ensor to him, the sum of one thousand and eighteen dollars, part of the consideration thereof, and that without this money the deed would not have been executed.

It is further proved that the complainant afterwards advanced the sum of two hundred and sixty dollars to Joseph Alfred Cole, and from all the circumstances it may fairly be inferred that this amount was intended to be secured in the same way as the former advance.

The proof shows further, that it was agreed between the parties that a mortgage of the lands in question should be executed by Joseph Alfred Cole, to secure the complainant for his advances of money. It was further proved that a note was given at the time of the execution of the deed to stand as evidence of the advance at that time, until a mortgage could be executed. The giving of this note, under the circumstances,...