Green v. Early

• Decision Date: 16 January 1874
• Citation: 39 Md. 223
• Parties: THOMAS M. GREEN v. WILLIAM H. EARLY and WILLIAM H. TOWNSHEND, Garnishees of JOHN E. ROBEY and JOSEPH N. BADEN, trading as ROBEY & BADEN.
• Court: Maryland Court of Appeals

39 Md. 223

THOMAS M. GREEN v. WILLIAM H. EARLY and WILLIAM H. TOWNSHEND, Garnishees of JOHN E. ROBEY and JOSEPH N. BADEN, trading as ROBEY & BADEN.

Court of Appeals of Maryland

January 16, 1874

APPEAL from the Circuit Court for Prince George's County.

The judgment on which this attachment was founded, was recovered against Joseph N. Baden, and another in Calvert County at the February Term, 1870; the attachment was issued on the 28th of May, 1870, directed to the sheriff of Prince George's County, and filed in the Circuit Court thereof, on the 31st of May. Joseph N. Baden, by deed in which his wife joined conveyed his lands in Prince George's County to Townshend on the 2nd of May, 1870. The simultaneous mortgage and single bills for the unpaid purchase money were made payable to his wife, and the mortgage was assigned by her and her husband to Early, on the 5th of May, 1870; the single bills being at the same time assigned by Mrs. Baden in the presence of her husband. The mortgage and assignment were recorded on the 11th of May, 1870. The attachment was laid in the hands of both Early and Townshend, who appeared and pleaded nulla bona. It will be noted that the judgment was not recorded in Prince George's County before the sale of the land. The other pertinent facts appear in the opinion of the Court.

The case was tried before the Court, without a jury, and judgment being for the defendants, the attaching creditor appealed.

Exception.--At the trial below, the plaintiff offered four prayers, all of which were rejected by a divided Court; FORD, A. J., being in favor of granting them, and MAGRUDER, A. J., in favor of rejecting them. The first prayer, which alone was considered by this Court, is as follows:

"That if the Court shall find that Joseph N. Baden, on or about the 2nd day of May, 1870, sold the real estate mentioned in the deed of that date, offered in evidence, to Wm. H Townshend, one of the garnishees, for seven thousand dollars; that Townshend paid at the time twenty-seven hundred dollars of the purchase money to the said Baden and executed the five single bills and mortgage offered in evidence to Edwardina Baden, the wife of the said Joseph N. Baden, for the balance of the purchase money, by the consent and direction of the said Joseph N. Baden; and if they further find, that prior to the time of the execution of the said deed and mortgage, the said Joseph N. Baden was indebted to the plaintiff for his judgment mentioned in the attachment, and also to the witness James S. Morsell, in the sum of nine hundred and fifty dollars, and promised to pay the said Morsell, his said claim out of the proceeds of the land when the sale was consummated, and did not pay him; and if they further find, that at the time of the execution of the deed and mortgage aforesaid, that the said Joseph N. Baden had no other property out of which the plaintiff's judgment could be made, and at the time of the sale of the said land had removed to Washington City, that then the said notes and mortgage are invalid as against subsisting creditors of the said Joseph N. Baden, and the plaintiff is entitled to judgment of condemnation against the said Wm. H. Townshend, for the amount of his said judgment and interest thereon, although they may find that the said single bills and mortgage were assigned to the said Wm. H. Early for a valuable consideration, by Edwardina Baden, before the attachment issued in this case; and although they may further find that the said Joseph N. Baden was present at the time the said notes were assigned to the said Wm. H. Early by the said Edwardina Baden, and the said money was paid by the said Early to the said Joseph N. Baden and Edwardina Baden jointly; and although they further find the said Joseph N. Baden signed the assignment at the foot of the said mortgage."

The defendants offered six prayers, all of which were rejected by the Court. The third prayer, which was rejected by a divided Court, (MAGRUDER, A. J., being in favor of granting it, and FORD, against it,) was as follows:

"If the Court shall find from the evidence, that on the 2nd day of May, 1870, the said Joseph N. Baden, one of the said defendants, sold to the said Wm. H. Townshend his real estate in Prince George's County, for $7000, and at the time of sale, said Townshend paid him $2700, part of the purchase money therefor, and by agreement of said parties the said Baden and Edwardina his wife, executed to said Townshend a deed in fee-simple for said property, and took from the said Townshend a mortgage to secure the balance of the purchase money in the name of the said Edwardina Baden, and at the same time the said Townshend executed five single bills to the said Edwardina Baden for the sum of $875 each, with interest from date, as is set forth in said mortgage; and if they further find that on the 5th day of May, 1870, said mortgage was duly assigned by said Edwardina Baden and the said Joseph N. Baden her husband, to a certain Wm. H. Early, for a valuable consideration, without notice of subsisting creditors and in good faith, and the said assignment was placed on record in the clerk's office of the Circuit Court for Prince George's County, and also that the said Edwardina Baden, in the presence of her said husband, and with his consent, at the same time assigned said single bills, given for said purchase money, to the said Wm. H. Early, and that the said Early paid to said Baden and wife the consideration for said single bills; and further, that the attachment in this case was not issued from the Circuit Court for Calvert County, until the 28th day of May, 1870, and was not received and filed by the clerk of the Circuit Court for Prince George's County until the 31st day of May, 1870, at which time it was placed in the hands of the sheriff of said last named county, and that the said writ of attachment was not laid by the said sheriff in the hands of Wm. H. Townshend until the 8th day of June, 1870, then the title to said mortgage and said single bills, and also all the right, title and interest of said Joseph N. Baden and Edwardina his wife, in and to said lands, had vested in the said Wm. H. Early, and the plaintiff is not entitled to recover."

To the Court's refusal to grant the plaintiff's prayers, and the rejection of the same by a divided Court, the plaintiff excepted.

The second exception of the plaintiff was to the entry of judgment for the defendants by the Court, after...