Kearney v. Sascer

• Decision Date: 30 January 1873
• Citation: 37 Md. 264
• Parties: MARY M. KEARNEY and Mary M. Kearney, Trustee of Kate K. Henry v. JOHN THOMAS SASCER, William A. Wallace, Richard H. Sascer and Benjamin F. Duvall.
• Court: Maryland Court of Appeals

37 Md. 264

MARY M. KEARNEY and Mary M. Kearney, Trustee of Kate K. Henry v. JOHN THOMAS SASCER, William A. Wallace, Richard H. Sascer and Benjamin F. Duvall.

Court of Appeals of Maryland

January 30, 1873

Appeal from the Circuit Court for Prince George's County, in Equity.

The facts are fully stated in the opinion of the court. The injunction applied for was made perpetual by the court below (Magruder, J.,) and from this order the appeal was taken.

The cause was argued before BARTOL, C.J., BRENT, MILLER, ALVEY and ROBINSON, JJ.

William H. Tuck, for the appellant.

Judgments at law are not to be vacated or interfered with, except upon the clearest evidence to sustain the jurisdiction of the court.

The mistake relied upon, appears to have been one of law, not of fact.

If the agreement operates in law differently from what Sascer supposed it would, equity will not interfere. Anderson v Tydings, 8 Md. 427; Campbell v. Lowe, 9 Md. 500.

If parties choose to express themselves in the language of an instrument, they must be bound by it. McElderry v. Shipley, 2 Md. 35.

There was no mistake in fact. The evidence shows that the statement and agreement and fiat were the result of a previous understanding, and that the appellee, J. T. Sascer, was so well satisfied that he did not deem it necessary to consult his counsel, preferring to act for himself.

The alleged mistake ought to be established by the clearest proof, "as much to the satisfaction of the court, as if it were admitted." Showman v. Miller, 6 Md 485; Watkins v. Stockett, 6 H. & J. 445. If any doubt exists, the allegation ought not to prevail, for if such a plea can be supported upon the evidence of the party only, any judgment may be set aside in equity, and plaintiffs would never be secure.

If a mistake was made under ignorance of his rights, and of the condition of the estate, relief ought not to be granted because it was his own fault.

It is not every mistake, even of matters of fact, that will call this jurisdiction into exercise. There must have been no fault or negligence on the part of the person complaining. Ins. Co. v. Hodgson, 7 Cranch, 336; Gott v. Carr, 6 G. & J. 309; Prather v. Prather, 11 G. & J. 110; Dilly v. Barnard, 8 G. & J. 170; Fowler v. Lee, 10 G. & J. 358.

The statement of Sascer that he has no doubt that he signed the paper, under the impression that the personal estate was sufficient, and had no idea of binding himself beyond the assets, ought not to avail; and the case does not show such circumstances as would make it unreasonable for him to pay this debt. Even if he did sign the agreement under a false impression, it was his own fault that he did so, for he had held the estate under his father's will since 1861, when his mother died. The negroes had been emancipated in 1864, so that, besides having had the means of paying the debt out of the estate before 1864, he confessed the fiat with free knowledge that the negroes had been set free.

According to the will the estate ought to have been closed in 1856, when the youngest child attained the age of 18. When he became admr d. b. n. in 1861, he had power at once to sell property, and pay this and the other debt; but he held on and never passed an account until 1869, and then, without paying this debt or making a dividend among all the creditors, he passed an account claiming that the whole assets had been administered--much the larger portion having been entirely lost to the estate. If he had executed the will, this state of things would not have happened.

If he had refused to enter the fiat, the (appellant's) course was plain. She might have prosecuted her sci. fa., and shown that he had committed a devastavit of the estate, and made himself liable for this debt.

If the claims credited in his account were contracted in carrying on the estate under the will--and this appears to have been the fact--he had no authority to do it. And if they were debts due by the deceased in his lifetime, he ought to have made a dividend among all, and not paid some to the exclusion of the appellant, who was a judgment creditor.

This is not such a case as entitles Sascer to the consideration allowed to persons acting whilst inops consilii. Every man who contracts may be said to be inops consilii, if he actually has no counsel. The indulgence is allowed sometimes where the party can not obtain counsel. Here Sascer had standing counsel, and if he made the agreement without consulting him, the other party is not to suffer. It often occurs that judgments are entered on the personal appearance of parties. The plaintiffs' counsel presented him the statement as previously agreed upon, and suggested the employment of an attorney, to which he replied" "that he had no doubt of the correctness of the statement, and would sign the agreement himself." There is no room for construction of the agreement on principles of equity, as supposed by the appellees' counsel. It is not pretended that there is any doubt on the language employed. Sascer agreed to enter a fiat which was done, and now he says he meant something else, not that the papers did not authorize what was done.

Sascer might have pleaded to the sci. fa., that no assets had come to his hands, or that he had fully administered. Having failed to make the defense, the fiat imports assets in his hands, just as any other judgment against an administrator would. The case might have been different if the sci. fa., had been against Mrs. Sascer in her life-time. The judgment was conclusive against her, and she could not make to the sci. fa., any defense she might have pleaded to the original case. But an administrator d. b. n., is only responsible for the unadministered assets coming to his hands, and he may defend himself against a sci. fa., on a judgment against his predecessor.

According to the authorities, there does not appear to have been any doubt of the right of an executor or administrator, by proper pleas, to prevent a recovery beyond the assets properly chargeable with the debt, whether he was sued in debt on the original judgment, or in a sci. fa. case; the question has been as to the form of the plea; and Tanner v. Freeland, 1 H. & McH. 34, only decides that a general plea of plene administravit is no bar to a sci. fa. The cases there referred to, show that the administrator ought to have stated specially in his plea how he had administered, so that the court could see that he had not paid claims over which the judgment had a preference. Ordwey v. Godfrey, 1 Cro. Eliz. 575.

In other cases it has been decided that plene administravit generally is good, and in some it has been questioned whether a demurrer to the plea should be general or special, but the right to make the defense in one form or the other, we do not find to have been anywhere denied. Hutchinson's Case, 3 Keble, 258; Smith v. Rawson, 2 Keble, 736; Richards v. Newton, 1 Ld. Raym. 3, and 1 Salk. 296; 2 Wms. Exrs. 1805-6; Foster's Sci. Fa. 194-5.

This appears to be the common law, to which the practice in the courts of this State has conformed. There was no need for the answer to show that Sascer had assets sufficient to pay this debt. What is the use of a judgment, if the question of assets is still to be open when execution of the judgment is sought? There was no occasion to surcharge and falsify the administrators' account. That might have been done, if the sci. fa. case had been disputed, but when the fiat was entered, the question of assets was closed as between the parties to the fiat.

The remedy was at law. If there was any fraud, misrepresentation or mistake, the court had power to strike out the fiat and allow the case to be tried. But if this injunction prevails, the appellant will be without remedy, for she will lose the benefit of this sci. fa. as a pending case, and if another be sued out, this proceeding in equity may be pleaded in bar of its prosecution, and so her debt go unsatisfied. Hence, if this court should be of opinion that Sascer is entitled to relief against the agreement and fiat, the decree ought to be reversed, and the appellees left to their remedy in the court in which the fiat was obtained. Huston v. Ditto, 20 Md. 305.

There is no ground for the jurisdiction of the court in the supposed liability of the sureties on the administration bond, because the judgment is only prima facie as to them, and in the suit at law, they would have every defense that can be resorted to here. Sureties have no standing in equity when so fully protected by law.

The lapse of time between the fiat in April, 1865, and filing the bill, March 29th, 1870, ought to prevent relief.

The appellant had no notice that the fiat was to be assailed until nearly five years after it was entered, and after an execution had been issued and returned, and a suit instituted on the bond some time in the year 1868. If the appellee, J. T. Sascer, did not intend to abide by the fiat, he ought in justice to the appellant, to have proceeded sooner. The question of laches must be determined according to the circumstances of each case. There can be no general principle applicable to all. Hanson v. Worthington, 12 Md. 418.

There have been many cases, in this court, in some of which relief has been refused, although applied for within comparatively a short time. Chew v. Farmers Bank, 9 Gill, 361; Kemp v. Cook, 18 Md. 130; Munnikhuysen v. Dorsett, 2 H. & G. 377; Taylor v. Sindall, 34 Md. 38; Croiser v. Acer, 7 Paige, 137, 143.

Under all the circumstances of this case, it would not be against equity and conscience to allow the appellant the full benefit of her judgment. But if any relief ought to be granted in this court, the decree is erroneous in making the injunction perpetual, without...