James v. Murray
| Decision Date | 09 January 1923 |
| Docket Number | 43. |
| Citation | 120 A. 376,142 Md. 101 |
| Parties | JAMES ET AL. v. MURRAY. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Harford County, in Equity; Wm. H. Harlan Judge.
Suit by T. Howard Murray, administrator c. t. a. of Charles T Waltring, deceased, against Harry B. James and others. From an adverse decree, defendants appeal. Affirmed in part, and in part reversed and remanded.
Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON STOCKBRIDGE, and ADKINS, JJ.
Stevenson A. Williams and Philip H. Close, both of Bel Air (Fred R Williams, of Bel Air, on the brief), for appellants.
Elmer J. Cook, of Towson, and A. Freeborn Brown, of Havre de Grace, for appellee.
The bill of complaint was filed in this case by J. Howard Murray, administrator c. t. a. of Charles T. Waltring, deceased, against Harry B. James, Ida M., his wife, and E. Roy James, their son, for the purpose of having a deed from Harry B. James to his wife, dated December 5, 1918, and a mortgage from Harry B. and wife to E. Roy James, dated September 23, 1920, declared null and void and set aside. There is also a prayer to require Mrs. James "to deliver up and hand back" certain personal property transferred and given by her husband to her, and injunctions against the three defendants were asked for.
On the 18th day of April, 1918, Charles T. Waltring was run over and seriously injured by an automobile of Harry B. James, and on the 22d of the following August he instituted a suit against James to recover damages for the injuries sustained. At a trial the court withdrew the case from the jury, instructing a verdict for the defendant. On appeal to this court, the judgment on that verdict was reversed, with costs, and the case was remanded for a new trial, being reported in 136 Md. 406, 111 A. 125. A few months after the judgment was reversed in this court Charles T. Waltring died, Mr. Murray his administrator c. t. a. was made party plaintiff, and on the 8th of April, 1921, a verdict was rendered in favor of the plaintiff for $8,000, upon which judgment was entered. This bill of complaint was filed on the 19th of April, 1921, and on May 18, 1921, Harry B. James filed a petition in voluntary bankruptcy and on the same day was adjudicated a bankrupt. On June 14, 1921, Harry S. Carver, trustee in bankruptcy, was substituted as complainant in the cause. On February 22, 1922, a decree was passed setting aside the deed of the 5th of December, 1918, from Harry B. to Ida M. James, the mortgage from Mr. and Mrs. James to E. Roy James, and the transfer of the personal property mentioned in the proceedings, and declaring them to be null and void, "so far as the same may interfere with or in any manner affect the rights and claims of the estate of the said Charles T. Waltring, deceased, and any and all other creditors of the said Harry B. James." The decree further required Ida M. James to account, on or before the 1st day of May, 1922, with Harry S. Carver, trustee, for the full value of the personal property so handed over to her by the purported transfer from said Harry B. James, "the value of said personalty, as fixed by the testimony in said case, being $7,000." The defendants were directed to pay the costs. From that decree this appeal was taken.
An order was passed granting an injunction as prayed for in the bill, the day it was filed, upon filing a bond in the penalty of $500, the court giving the defendants the right to move for the rescission of the order and a dissolution of the injunction. That motion does not appear to have been made, and the case was disposed of as if on final hearing. The defendants filed separate answers, and Mr. and Mrs. James, with leave of the court, amended their answers, setting up a defense which was not made in the original answers, and which it will be well to now refer to.
The bill alleges that, when Waltring was injured and when he instituted his suit for damages and filed his declaration setting forth his claim, Harry B. James was the owner of certain real estate in Harford county, worth between $4,000 and $5,000, and was also the owner of considerable personal property worth $7,000 or $8,000, all of which was unincumbered and in the possession, use, and enjoyment of said Harry B. James; that on the 5th day of December, 1918, said James executed a deed of all the real estate he owned to his wife for a simulated and pretended consideration, and at the same time undertook to dispose of all his personal property to her, who took possession of it, by handing it over to her and having it transferred to her upon the assessment books of Harford county.
In the original answers of Mr. and Mrs. James, they admitted the execution of the deed, and at the time Harry B. James held the legal title of the real estate mentioned and part of the personal property, but alleged he was indebted to his wife, and had been for a number of years, in a large sum which he had agreed to pay her, and agreed to repay her in part by the conveyance of the real estate and certain personal property held by him. They denied that the consideration was simulated and pretended, or that the transfers were in prejudice of the rights of his creditors. They alleged that the real estate was on or about the 5th of December, 1918, worth about $3,000, and that the personal property was not worth anything like the sum mentioned in the bill. Those answers were filed on May 26, 1921, and on July 6, 1921, the amended answer of the husband was filed, and on July 11 that of his wife. In the amended answers they alleged that by deed dated the 6th of December, 1917, he had conveyed the real estate and personal property to his wife; that said deed was duly executed before Ryland L. Mitchel a notary public, and was immediately delivered by the husband to his wife, and thereafter remained in her possession. This appears in both amended answers, "and that, by inadvertence and because the same was mislaid or believed to have been lost, the said deed was not recorded by this court within the time required by law; that thereafter, on or before the 5th day of December, in the year 1918, when it was discovered that the said deed had not been recorded, and was believed to have been mislaid or lost," the said Ida required and demanded that Harry B. James confirm the said deed and execute and deliver to her a deed for said property in order that the same might be recorded as required by law.
They claim that the deed of 1917 was not found until June, 1921, after their original answers had been filed. It is difficult to understand why no reference was made to it in the original answers, but that was not only not done, but in them they say that the deed of December 5, 1918, was executed and delivered in pursuance of the agreement he had made to her. In speaking of the personal property, Mr. James alleged "that the same was sold or delivered to her on or about the date of said deed," referring to the deed of 1918, and Mrs. James alleged in effect the same thing. We understand that it is conceded that the deed of 1918 (which is not set out in the record) makes no reference to the one of 1917, and does not show that it was made as a confirmatory deed, or that a prior one had been made which was lost or mislaid. If it was found in 1921, why it could not have been in 1918, or why it was left off the records so long, is not explained. The certificate of acknowledgment of that deed omits the year. As the deed was dated the 6th of December, 1917, if it had been recorded at any time before the 6th of December, 1918, it could have been presumed that it was acknowledged the 6th of December, 1917, under what is said in Wickes v. Caulk, 5 Har. & J. 36-42, and Basshor v. Stewart, 54 Md. 376, and the general desire of courts not to permit mere technical omissions or errors in certificates of acknowledgment to injuriously affect instruments required to be acknowledged and recorded. So for as the record discloses, it has never been recorded.
Our statutes are very liberal in allowing absolute deeds to be recorded after the six months' period provided in section 13 of article 21 of the Code, and, when so recorded, as against the grantor, his heirs or executors, and against purchasers with notice and creditors who become so after the recording of the deeds, they have the same validity and effect as if recorded within the time prescribed. Section 19, art. 21. But, as the deed of 1917 apparently has never been recorded, and certainly was not before the one of 1918, we cannot understand how it can have any effect as a deed. It is unnecessary to consider the effect of the notice to a third party of an unrecorded deed, or the grantee taking possession of lands purported to be conveyed, as it is not shown that the creditors had any notice of the deed of 1917, or that the grantee took possession of the lands before the deed of 1918 was executed and recorded. In addition to that, so far as the personalty is concerned, it cannot be properly contended that the deed of 1917 would have transferred it, as Mr. James still retained possession of it, and the deed was not executed as a bill of sale or mortgage of personal property must be, or that anything was done under it which gave it any effect as a deed.
It would greatly increase the danger of fraud in transactions between husband and wife, if the deed of 1917 could be given the effect claimed for it. It was made, according to the date in the body of it, before Waltring was injured, while the one of 1918 was made after the accident, after the suit was brought, and shortly after the declaration was filed, showing the claim of the plaintiff for $30,000 damages, but, if a husband and wife can have such a transaction as this between them, have a deed...
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