Cooke's Lessee v. Kell

• Court: Maryland Supreme Court
• Writing for the Court: LE GRAND, C. J.
• Citation: Cooke's Lessee v. Kell, 13 Md. 469 (Md. 1859)
• Decision Date: 31 May 1859
• Parties: ELIZABETH COOKE'S LESSEE v. MARY ANN KELL and Others.

13 Md. 469

ELIZABETH COOKE'S LESSEE v. MARY ANN KELL and Others.

Court of Appeals of Maryland.

May 31, 1859

By the English construction of the Statute of 27 th Elizabeth, the mere execution of a voluntary deed raises a conclusive presumption of fraud, as against subsequent purchasers for value.

By the American construction of this statute, a subsequent sale, without notice, is presumptive evidence of fraud, which throws on those claiming under the voluntary deed the onus of proving, that it was made bona fide.

But when the subsequent purchaser has notice of the prior voluntary deed, no such presumption of fraud arises and such notice need not be actual.

Constructive notice, furnished by the recording of a voluntary deed, under the registry laws of this State, is sufficient to bind subsequent purchasers, in the absence of actual fraud.

The registry laws of this State were designed to, and do, give notice to all the world, so that there may be no deceit practiced upon any one; if they have not this effect they are of no use whatever, for without registration deeds are binding inter partes.

An instruction to the jury, " That, by the deed of 1792, the grantor conveyed to the grantees, therein named the property therein described," & c., is defective in assuming the existence of the deed of 1792.

Facts sufficient to authorize the jury to find therefrom that a voluntary conveyance was not bona fide, but fraudulent and void, must amount to some pointed evidence of actual fraud in its execution such evidence is necessary in order to establish fraud in fact.

APPEAL from the Superior Court of Baltimore City.

Ejectment for a lot of ground, forty-one feet front and one hundred and fifty-nine deep, on York street, in the city of Baltimore, being lot No. 17, and part of " Todd's Range," brought on the 29th of August 1850, by the appellant against the appellees. Plea Non Cul.

Exception. The plaintiff proved, that Joseph Bankson, then of the city of Baltimore, was, on the 14th of May 1792, the owner in fee of the lot in question, and on that day executed the following deed therefor, which was, on the same day, duly recorded, in the land records of Baltimore county.

By this deed Joseph Bankson, the grantor, in consideration of natural love and affection, and of five shillings, current money, conveyed the property to his three children, Harriet Giles Bankson, Joseph Bankson and Elizabeth Bankson, and their heirs, as tenants in common; reserving, however, the use and occupation of the property to himself and his wife, Hetty Bankson, for and during their natural life or lives, in case the wife should survive, and no longer, and from and after the decease of the grantor and his wife, then the property to revert to and become the sole property of the said children, the grantees, and their heirs, as tenants in common.

The plaintiff further proved, that Joseph Bankson, the grantor in this deed, died in the city of Philadelphia about the year 1806, and his widow, Hetty Bankson, survived him and died in 1843; that Elizabeth Cooke, the lessor of the plaintiff, is the same person as Elizabeth Bankson, one of the grantees in the above deed, having intermarried with a certain John S. Cooke, who is now dead, or believed to be so; that the other grantees, mentioned in this deed, both died intestate and without issue, the one about the year 1800, and the other about the year 1812; that these three were all the children the said Joseph Bankson had at the date of this deed, but he afterwards had five others, some of whom died intestate and without issue, and some are now living.

The defendants then proved, that the lot in question remained in possession of Joseph Bankson after the deed of May 14th, 1792, until the 17th of February 1795, and that on that day he duly executed, and for a full and valuable consideration, a conveyance of the same to Daniel Diffenderffer, the wife of said Bankson, to whom a life estate had been reserved by the deed of the 14th of May 1792, relinquishing, in due form of law, her dower in the same; that Diffenderffer at once took possession of the lot and improved it by building thereon a valuable brick dwelling house, in which he continued to reside, claiming title to the same under said deed of 1795, until his death, about the year 1809 or 1810; that Diffenderffer, by his last will, duly executed, devised the lot to his wife, Elizabeth Diffenderffer, who continued in possession thereof from her husband's death until her death, in 1832 or 1833, after which the same was sold by a trustee appointed for that purpose, and that the title of Diffenderffer and wife, by legally executed and acknowledged mesne conveyances, and lastly, by a deed from Henry Dorsey, became vested in Thomas Kell, who paid for the same a valuable and full consideration, viz: $7000, and remained in possession of the same from 1833 to his death, in 1846, and the defendants, who are his widow and child and heirs at law, after him till this time.

The defendants also further proved, by A. W. Thompson, a conveyancer, that he had examined the land records of Baltimore county, from 1759 to 1792, and that he found, that Joseph Bankson, the grantor in the deed of the 14th of May 1792, had, before that date, been the owner of other real estate, but had, at different periods, parted with the same, and did not appear by the said land records to be, at the date of said deed, the owner of any other real or leasehold estate than that conveyed thereby. They also gave in evidence, that said Bankson seemed to be a needy man, and then produced the deposition of Mrs. Howser, taken by consent, who deposed, that she was about seventy-five years of age; that she knew Joseph Bankson, deceased, by sight,--lived two squares from him,--when she knew him he lived in a two-story frame house, situated upon the lot once owned by Daniel Diffenderffer and afterwards by Thomas Kell; that from his appearance, when she last knew him, he was getting pretty low in the world; that before that time she always heard he had been very well off, but that it was about the time that he left the place where he lived, as before stated, that he was getting to be reduced in circumstances; deponent was about fourteen years old at the time of which she speaks, when she last knew said Bankson; she formed her judgment of his being in reduced circumstances from the appearance of himself and family; he had three children, when she knew him, and when he moved away, two boys and a girl; deponent was married when she was about eighteen years of age, and Bankson had moved away long before, but precisely when she does not know; he was a man of good character as far as she knew; she did not know of any indebtedness of his, or that he was indebted at all; she did not know whether he owned the house or not, and knew nothing about his property.

Lloyd Bankson, a son of the said Joseph Bankson, and a witness for the plaintiff, on cross-examination said: " I do not know when my father first came into possession of the property mentioned in the deed of 1792. To the best of my recollection, I first heard of its having belonged to my father in 1814; I do not remember of hearing that my father had sold the property, but only of hearing that Diffenderffer, or some other party was in possession illegally. This I first heard about the year 1814. I do not remember of hearing of the deed of 1792, until a few years ago, when it was brought to my notice. Before that, I heard that some person was illegally in possession of our property. This I heard as far back as 1814. I have no knowledge of any measures taken by any of the children of Joseph Bankson, to notify Diffenderffer of their claim under the deed of 1792, except that John P. Bankson, in 1814, as I then heard, had employed Mr. Williams, a lawyer of Baltimore, to bring suit for us. Joseph Bankson lived in Philadelphia, from four to six years previously to his death. He had lived previously in Maryland. I have heard of his living in Kent county. He also lived in Baltimore. I don't know when he went to Kent county, or how long he lived there. At the time of his death, he was, as I have heard, a white smith, and was about to commence the hardware business. He left no property to my knowledge. He made no will to my knowledge. There was no administration on his estate to my knowledge."

The plaintiff then, on the whole evidence, asked an instruction to the jury in substance as follows:

That by the deed of the 14th of May 1792, Joseph Bankson conveyed to grantees therein named, the property therein described, in fee, subject to the life estate in and to the same, of the grantor and his wife and of the survivor of them, and if the jury find from the evidence, that said Joseph Bankson died in 1806, and his widow in 1843, that the right of action to recover possession of said lot of ground, thereupon first accrued to the grantees in said deed named, and their representatives, and that the deed of 1795, from said Bankson to Diffenderffer, was not sufficient to avoid said conveyance of 1792, although they may find, that the said deed of 1795, was for full value, and that of 1792, voluntary, and for no other consideration than that stated therein, provided the jury shall further find, that said last mentioned deed was duly acknowledged and recorded in the records of Baltimore county court, on the 14th of May 1792.

The defendants then, on the same evidence, asked two instructions to the jury, in substance as follows:

1st. If the jury find, that the deed from Joseph Bankson, of the 14th of May 1792, was a voluntary conveyance, and for no other consideration than that stated in it, that then the sale by him in 1795, of the same property to Diffenderffer,...