Frazier v. White

• Decision Date: 09 May 1878
• Citation: Frazier v. White, 49 Md. 1 (Md. 1878)
• Parties: ANN MARIA FRAZIER and Edward H. Frazier, Her Husband, v. ALFRED WHITE, William J. Frazier and S. Sands Mills, Sheriff.
• Court: Maryland Supreme Court

49 Md. 1

ANN MARIA FRAZIER and Edward H. Frazier, Her Husband, v. ALFRED WHITE, William J. Frazier and S. Sands Mills, Sheriff.

Court of Appeals of Maryland

May 9, 1878

Appeal from the Circuit Court of Baltimore City.

This appeal was taken by the complainants from a decree of the court below (Gilmor, J.,) dissolving a temporary injunction and dismissing the bill with costs.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BOWIE, STEWART, MILLER and TLVEY, JJ.

William H. S. Burgwyn, for the appellants.

Though there is no such allegation in the bill, the evidence establishes the fact that a judgment against William J Frazier and Alfred White, would result in no benefit to the plaintiffs, as both are virtually insolvent. The sheriff, who levied the execution, is dead, and although it is not contended that his bond is not sufficient, still an action on his bond would result in great delay and loss to the appellees, who, according to the evidence, are actively engaged in the use of said machinery, tools, etc., and dependent upon the use and operation of the same for their support. This was decided by the Court of Appeals in McCreery v. Sutherland, 23 Md. 471, to furnish a proper ground for an injunction, as these were elements of apprehended damages and injury alleged, for which the law does not afford an adequate and sufficient remedy, either by action of trespass, or by replevin.

It is not alone a sufficient ground to refuse the injunction that there is a remedy at law. In Holland v Baltimore, II Md. 186, the court granted an injunction to restrain the sale of the complainant's property, to pay for the paving of a street, which had been illegally assessed upon the complainant, holding that "where ample and perfect justice can be done, equity will interfere to prevent multiplicity of suits."

And in Barnes v. Compton, 8 Gill, 391, the court say "chancery will entertain a bill which, on its face, discloses a complete remedy at law, where sufficient ground is shown for going into equity," and that where chancery has original jurisdiction, it will not be ousted by law giving to courts of common law, power over the same subject. Also to same effect, see Withers v. Denmead, 22 Md. 135.

In the present instance, the evidence shows that a person having use for the property to conduct the machine business, could not replace the same for less than $18,000 or $20,000; whereas it would not bring at a sale over $2000 or $2500. Replevin surely would be no adequate remedy for the appellees in this case, as from the nature of the articles, they would probably be bought by any number of purchasers, and in each case there would be required a separate action, and a separate bond. Hyde v. Ellery, 18 Md. 496; Lucas v. McBlair, 12 G. & J. 1.

If there were no other ground for the granting of the relief prayed by the appellants in this case, the conspiracy between William and his alleged creditor, White, to seize the property of a third person under the cover of legal proceedings, furnishes an ample one. Equity will not permit the process of the law to be availed of as a means to consummate a fraud, and work an injury on an innocent party. Bargate v. Shortridge, 5 H. & H. 297; Fernibaugh v. Leader, 15 Law Journal, 468; Kerr on Injunctions, 49, 548; Story's Eq. secs. 875, 885, 887.

If Mrs. Frazier is the bona fide owner of the property levied upon under the said execution, the previous decisions of the Court of Appeals conclude the matter, and the injunction must be made perpetual. In Bridges v. McKenna, 14 Md. 258, the court say, "whatever appertains to the separate property of a married woman, has always been a peculiar subject of jurisdiction of courts of equity." And that although by the Act of 1853, ch. 245, a married woman has a remedy at law for the taking of her property under an execution issued upon a judgment obtained against her husband, a court of equity is not deprived thereby of the jurisdiction which it had before to enjoin said execution; the plain design of said Act being to enlarge and not to restrain the remedies of married women.

It is apprehended that it also was not the design of the Code, Art. 45, sec. 1, to restrain, but rather, still farther, to enlarge the remedies of married women; and that the fact that in this case, the complainant's property has been seized under execution issued on a judgment against her son, and not against her husband, will not deprive her of the protection which chancery is ever solicitous to extend to one in her situation. Niller v. Johnson, 27 Md. 6.

Sebastian Brown, for the appellees.

If Mrs. Frazier owned the property taken under execution, the proceeding by injunction could not be sustained, because she has an adequate remedy at law. Lewis v. Levy, 16 Md. 85; Pfeltz v. Pfeltz, 14 Md. 376; Freeland v. Reynolds, 16 Md. 416; Fort v. Groves, 29 Md. 188; Chappell v. Cox, 18 Md. 513; Myers v. King, 42 Md. 65.

The property of a married woman may be protected from seizure under an execution against the husband, but otherwise she is restricted to the ordinary legal remedies. Code, Art. 45, sec. 1; Schindel v. Schindel, 12 Md. 108; Bridges v. McKenna, 14 Md. 258.

The allegation in the bill that Mrs. Frazier was carrying on business, and that the machinery and business were of such a nature, that if the machinery, etc., was sold under execution, no adequate remedy would lie at law, has not been sustained, nor would it justify an injunction if it had been. A jury could certainly assess damages proportionate to the loss incurred. If such a doctrine were sustained, a court of equity would be required in every such case, to investigate the character of property seized, and the nature of the business affected by the seizure and sale. Courts have not yet gone to such a length as this. But the machinery seized was of the ordinary character used in a thousand such shops; the business was a common one, and that business was not carried on by Mrs. Frazier. In fact, the business was scarcely carried on at all.

The suit is instituted by husband and wife, whereas the wife should have sued by her next friend. Bridges v. McKenna, 14 Md. 258; Myers v. King, 42 Md. 65; Code, Art. 45, sec. 4.

Bowie J., delivered the opinion of the court.

The bill in this case is filed by Anna Maria Frazier and Edward H. Frazier, her husband, of the City of Baltimore, against Alfred White, William J. Frazier, and S. Sands Mills sheriff, to obtain an injunction to stay the execution of a writ of fi. fa. issued by White on a judgment obtained by him against William J....