Griffith v. Clarke

• Decision Date: 27 June 1862
• Citation: 18 Md. 457
• Parties: GOLDSBOROUGH S. GRIFFITH, v. MARGARET C. CLARKE, by prochein ami.
• Court: Maryland Court of Appeals

18 Md. 457

GOLDSBOROUGH S. GRIFFITH, v. MARGARET C. CLARKE, by prochein ami.

Court of Appeals of Maryland.

June 27, 1862

Case set down for hearing on motion to dissolve:--afterwards a commission issued by agreement, under which testimony was taken and returned, and the case was then, by agreement, set down for final decree, and thereupon the court passed an order continuing the injunction, and reserving other questions for further consideration. HELD that an appeal lies from this order.

A promissory note signed by a feme covert, cannot be enforced against her by any proceeding at law: a judgment, by default, against her, when sued at law, on such a note, is a nullity, and enforcement of it against her separate estate may be restrained, in equity, by injunction.

The principle, that a party cannot impeach a judgment on any ground which might have been pleaded or relied on, as a defence to the suit, does not apply to a case where the defendant is a feme covert, and not sui juris.

APPEAL from the Circuit Court for Baltimore City.

Bill filed, September 9th, 1858, by the appellee against the appellant and others, charging that the complainant had property settled to her separate use, derived from her father's will; that she is a married woman, and, in the absence of her husband, George B. Clarke, had been induced by the fraudulent representations of one Lane, his partner to sign certain notes, her husband being joint maker with her therein; one of which, for $500, found its way in the hands of the defendant, Griffith; and that a suit at law was instituted by him upon it May 26th, 1857, against her and her husband, as joint makers, and judgment by default rendered May 12th, 1858, against both; that she never heard of this suit until a day or two before filing this bill, and had never been served with process; that on this judgment a fi. fa. was issued and levied upon a part of her separate property; that it was not competent for Griffith to sue her at law, and she had a full defence in equity, as the note was obtained from her improperly, and the proceeds never applied for her benefit, and she had not, in any way, made her separate estate liable therefor; nor was it so liable; that the sheriff was about to sell her property under the fi. fa., and if permitted to do so, her damage would be great and irreparable. The bill prays for an injunction to restrain such sale, which was issued.

Griffith answered, admitting that the complainant was a feme covert, and was entitled to the equitable interest in the property levied on, the legal estate in which was in trustees, but insists, that it was subject to her full and absolute power of disposition, to the same effect as if she were a feme sole. He denies all allegation of fraud in obtaining the note; denies the allegation that process was not served upon her; but even if it was true, and the sheriff made a false return as to her, the proper remedy was an action against him; denies that she was ignorant of the suit, and avers, that during its pendency, and after the judgment, he had frequent conversations with her about it, and she made repeated promises to him to pay it, and said that she considered it a debt of honor; that he took the note without suspicion, relying exclusively upon her well known responsibility, and having suffered judgment by default, she is not entitled to an injunction, (a remedy, not of right, but in the discretion of the court,) to shield her from paying an honest obligation which the court, as a court of equity, would have directed her to pay; that she signed the note for the express purpose of making her separate estate liable, and whether she got any benefit from it or not, does not affect the responsibility of her property thereunder.

By the deed of settlement, dated April 24th, 1851, the property (real and leasehold) was conveyed to trustees, " in trust for the sole and separate use of the said Margaret C. Clarke, for the term of her natural life, so that she be permitted to collect and receive the rents and profits thereof to her own use, without the let or control of her present or any future husband whom she may have, with full power and authority to her, whether sole or covert, to sell or dispose of" the same " by any instrument of writing in the nature of a will or a deed; " and if she died without having made disposition thereof, then, in trust " for the use and benefit of such person or persons as would be her heirs-at-law of real estate, according to the laws of Maryland." The note, on which the judgment was rendered, is a simple negotiable promissory note, for $500, dated December 23rd, 1853, payable at five months, " to the order of Clarke, Lane & Co., value received," and signed by Margaret Clarke and George B. Clarke.

The motion to dissolve was set down for hearing October 8th, 1858, but afterwards, by agreement, a commission was issued, and testimony (which need not be stated) taken and returned, and on the 21st of April 1860, the cause was, by agreement, submitted for final decree, and the court (KREBS, J.) passed an order, December 1st, 1840, continuing the injunction, being of opinion that the defendant, Griffith, cannot proceed to obtain satisfaction of his claim upon this note, by the proceedings instituted at law, as neither Mrs. Clarke, nor her separate estate, can be made liable at law for the satisfaction of such a contract, but reserving for further consideration the question, whether the separate estate vested in her, by the deed of trust, can be made liable in equity, under these proceedings, for the satisfaction of said note. From this order Griffith appealed, and a motion to dismiss was made by the appellee in this court.

The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.

John H. Thomas, for the appellant.

1st. The order was the proper subject of an appeal, inasmuch as it determined the appellant had no right to the fruits of his judgment at law, and only left open the question, whether he was entitled to any other measure of relief or not. An appeal is expressly allowed from an order granting an injunction, and a fortiori will it lie from an order continuing one. The orders which have been considered interlocutory, determined no question of right, such for example, as referring a case to the auditor with directions to state an account on which the court intended to determine some right in future. The Act of 1835, ch. 380, sec. 3, and the Code, Art. 5, sec. 21, settle conclusively the right of appeal in this case.

2nd. From the evidence, and the return " summoned," there can be no doubt the writ, in the action at law, was duly served on the appellee. But the case was submitted on bill and answer, without replication, and in such a case, the averments of the answer, alleging the writ was served, are to be taken as true. 3 Md. Rep., 505, Ware vs. Richardson. 4 Md. Rep., 124, Mason vs. Martin.

3rd. The appellee cannot impeach the judgment on the ground of coverture, or any other which could have been used as a defence at law. She not only had notice of the suit at law and all the proceedings in it, but permitted several terms to elapse without using the defences, or taking any steps which would have availed her at law, and she is, therefore, estopped from asking the aid of a court of equity. Equity will not restrain execution on a judgment at law in any case, unless it would be inequitable, unconscientious and unjust, to allow it to be enforced, and the complainant had no opportunity of making the defence at law. 10 G. & J., 362, Fowler vs. Lee. 2 Md. Rep., 320, Brumbaugh vs. Schnebly. Equity and good conscience certainly did not entitle the appellee to be relieved from payment of a note to indemnify her for which she had received an...