Harrison v. Morton
| Decision Date | 28 June 1898 |
| Citation | 40 A. 897,87 Md. 671 |
| Parties | HARRISON et al. v. MORTON. |
| Court | Maryland Court of Appeals |
Appeal from circuit court of Baltimore city.
Bill by Franklin J. Morton against Blanche I. Harrison and Walter H Harrison. There was a decree for plaintiff, and from orders overruling exceptions to a sale thereunder, and dismissing a petition to vacate the decree, defendants appeal. Affirmed.
Argued before MCSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, ROBERTS BOYD, and PEARCE, JJ.
Charles J. Wiener and David Ash, for appellants. Gans & Haman and Vernon Cook, for appellee.
The appellee filed a bill in equity against the appellants alleging that, contemporaneously with the execution and delivery by them to him of a deed which is absolute in terms he entered into an agreement with them by which he agreed that upon payment by Walter H. Harrison to him of a promissory note for the sum of $2,500, and upon compliance with certain conditions named in the agreement, he would reconvey the property to either of the defendants, or such person as they might designate. The note is alleged to have been long since overdue and unpaid, and the plaintiff claimed a lien in the nature of a mortgage. A subpoena was issued, returnable on the second Monday of January, 1897, which the sheriff returned, "Summoned ambo." On the 3d day of March, 1897, a decree pro confesso was passed, in which it was stated that the defendants had been returned summoned, and had failed to appear. Testimony was taken on the 6th day of April, 1897, and, having been returned, the case was referred to an auditor and master; and after his report a final decree in due form was passed, appointing a trustee to sell the property if the amounts therein named be not paid within 30 days. The trustee sold the property, made his report to the court, and an order nisi was passed. Exceptions to the ratification of the sale were filed on the grounds (1) that the decree was void because it was founded on a decree pro confesso for an alleged want of appearance to the writ of summons, when in fact an order had been given to the clerk, and was filed by him, signed by counsel for the defendants, directing him to enter an appearance, and that said order was equivalent to an appearance; (2) that Blanche J. Harrison was not, in point of fact, summoned, but was so returned upon the understanding that appearance of counsel for the defendants justified such return; (3) that the plaintiff had no right to have the property sold, by reason of a certain agreement alleged to have been made; and (4) that the property sold for a grossly inadequate price. Subsequently they filed a petition to vacate the decree for the reasons set forth in the exceptions to the sale. Testimony was taken, chiefly as to service of process; and decretal orders were passed overruling the exceptions to the sale, and dismissing the petition to vacate the decree. From those orders this appeal was taken.
It is contended on behalf of the appellants that the allegations in the bill did not entitle the plaintiff to relief, and the court was without authority to grant the relief given, by reason of the defects in the bill. We have already stated as much of the bill as is necessary to show that the object was to have a lien declared for the amount alleged to be due, and, in default of the payment thereof, to have the property sold. We cannot understand how, as between the original parties, there can be any question about the jurisdiction of a court of equity to grant the relief prayed for. Inasmuch as the deed, which was an absolute conveyance in terms, was intended only as a security in the nature of a mortgage, according to the allegations of the bill, and as the agreement operating as a defeasance was not recorded with the deed, section 1 of article 66 of the Code deprives the plaintiff of any benefit of recording the deed, so far as third persons are concerned; but between the parties it was valid (Owens v. Miller, 29 Md. 144), and, to make it effective, it was proper to pursue the course adopted. There was no appeal from the decree, and we therefore cannot review the action of the court below as to the sufficiency of evidence, and other matters that were determined by it. The exception on the ground of inadequacy of price has not been pressed in this court, and there is but little, if any, evidence in the record reflecting on that subject.
The principal question for our determination is whether the decree pro confesso, and the proceedings thereunder, were valid. Both of the defendants were returned summoned, but the evidence shows that the deputy sheriff went to the office of Mr. Harrison with the summons, and, although there is some discrepancy between the deputy and Mr. Harrison as to what there occurred, the latter admits that the deputy told him he had a summons for him and Mrs. Harrison, and he referred him to Gov. Whyte, who was his attorney in this case. The deputy then called on Gov. Whyte, who wrote on the back of the subpoena, Upon the faith of that, the deputy made the return above mentioned. The clerk of the court, probably not observing the indorsement of counsel, did not enter his appearance, but entered the return of the sheriff on the...
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