Figinski v. Modrak

• Decision Date: 11 June 1926
• Docket Number: 41.
• Citation: 134 A. 130,151 Md. 140
• Parties: FIGINSKI ET AL. v. MODRAK.
• Court: Maryland Court of Appeals

134 A. 130

151 Md. 140

FIGINSKI ET AL. v. MODRAK.

No. 41.

Court of Appeals of Maryland

June 11, 1926

Appeal from Circuit Court of Baltimore City; George A. Solter Judge.

"To be officially reported."

Bill by Frances Modrak against Marion A. Figinski and others. From an order overruling a demurrer to the bill, defendants appeal. Affirmed.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, and WALSH, JJ.

J Calvin Carney, of Baltimore (Marion A. Figinski, of Baltimore, on the brief), for appellants.

Bernard H. Conn, of Baltimore, for appellee.

OFFUTT J.

Frances Modrak is an illiterate Polish woman 75 years old who is unable to understand the English language. She owned, subject to a ground rent of $31.25, a house and lot in Baltimore City, which was her only source of income. Francizka Franckowiak, one of the appellants with whom she appears to have been on terms of intimacy and friendship, is her godchild. Prior to this suit she was induced to loan Francizka Franckowiak and her husband $800, of which they repaid about two years before this suit $200. They failed to pay any interest on the loan, but, when requested to do so promised to live with the appellee and make their home with her. In December, 1924, Francizka and her husband visited the appellee, and to quote from the bill, "and acting unusually friendly and solicitous to her, induced her to drink some intoxicating beverage and to go to a saloon, the location of which she does not recall, and there persuaded your oratrix to drink more intoxicating beverage; that while there the said defendants procured the execution by your oratrix of a certain paper writing," by which she assigned to one Marion A. Figinski the leasehold property to which we have referred. On December 30, 1924, Figinski reconveyed the property to the appellee for her life with remainder over to Francizka and Frank Franckowiak in fee, and on the same day they executed a mortgage thereon to the Polish American Building Association for $500. Although what purports to be the appellee's cross-mark is signed to this mortgage, she knew nothing of it until her attention was called to it after it was executed. Figinski, to whom she first conveyed the property, was the attorney for the building association named in that mortgage. On July 25, 1925. the appellee filed the bill in this case against Figinski, the Franckowiaks, and the building association, to procure the annulment of the assignments from her to Figinski and from him to her and the Franckowiaks, and of the mortgage to the Polish American Building Association. That bill, in addition to what has been stated, alleged:

That, when the assignment to Figinski was made, "your oratrix was at that time and still is illiterate, and did not understand the nature and effect of the said pretended conveyance, and that she had no intention or desire to convey the aforesaid property, as the assignment marked 'Plaintiff's Exhibit No. 2,' purports to do or to convey it in any other manner," and that she, "at the time of the execution of the said paper writing, expressed her desire to have some one to consult about the transaction, but the said defendants Frank Franckowiak and Francizka Franckowiak told her that she didn't need any one, and that everything was being done for your oratrix' benefit; * * * that, when your oratrix asked the defendant Marion A. Figinski questions in Polish concerning the aforesaid transaction, the defendants Frank Franckowiak and Francizka Franckowiak would interrupt her and speak English to the defendant Marian A. Figinski, so that your oratrix could not understand the conversation; * * * that the aforesaid pretended conveyance was made without any valid consideration; * * * that the execution of the aforesaid assignment from your oratrix to the said defendant Marion A. Figinski was procured by the exercise of fraud and various false representations as to the nature and purpose of said paper writing, the defendants not only taking advantage of the illiteracy, ignorance, and senility of your oratrix, but by actually representing to your oratrix that the purpose of the said assignment was to secure a good home for your oratrix as long as she might live; * * * that your oratrix had no knowledge of this pretended conveyance, which was never explained to her, nor did she desire that it be made."

To that bill the several defendants interposed a demurrer which the court, by its order of December 4, 1925, overruled and this appeal is from that order. The appellants contend that the bill is bad, first, because it is multifarious; and, second, because, while it charges fraud, it states no facts from which fraud may be inferred.

The first objection rests on the theory that there is no privity between the building association and the Franckowiaks, and that the appellee's case against it is separate and distinct from her case against them. But there is no force in that contention, because it is obvious from the allegations of the bill which the demurrer admits that the mortgage and the conveyances were part of a single scheme or design, in which Figinski, the attorney for the building association participated. We cannot, of course, say as a matter of fact that that is true, and we are not to be understood as deciding as a matter of fact that Mr. Figinski was guilty of any misconduct, for we are dealing solely with the case made by the bill which the demurrer concedes to be true. But, if it is true, Figinski must have known that the deed to him was a...