Kunkel v. Markell

• Decision Date: 21 February 1867
• Citation: 26 Md. 390
• Parties: JACOB KUNKEL v. JACOB MARKELL, Rhoderick Dorsey, Exc'r et al.
• Court: Maryland Court of Appeals

26 Md. 390

JACOB KUNKEL v. JACOB MARKELL, Rhoderick Dorsey, Exc'r et al.

Court of Appeals of Maryland

February 21, 1867

Appeal from the equity side of the Circuit Court for Frederick County.

The bill in this case was filed September 21st, 1860, by the appellees against the appellant, and alleges that Markell and Kunkel being responsible as sureties for Francis Thomas, for certain debts due by Thomas to divers persons, the said Thomas, to secure them, the said Markell and Kunkel, thereor on the 21st of February, 1853, assigned and delivered to Kunkel in trust three single bills of one M. P. O'Hearn and as declaratory of such trust took from Kunkel this receipt:

"Received Frederick, February 21st, 1853, of Francis Thomas, three single bills of M. P. O'Hearn, dated the 14th of February, 1853, one for $7,000, one for $5,000, and the third for $5,320, and endorsed and assigned by the said Thomas, with the further guarantee that said single bills shall be secured by a deed of trust to be executed by said Thomas upon his interest in the Allegany lands heretofore conveyed to him by Jacob Markell and the undersigned; and the undersigned hereby agrees to apply the proceeds of said single bills first, to pay all the expenses incurred by the undersigned in and about the execution of the sales of the Allegany lands, and of this further trust; secondly, to take unto himself individually, as part of the undersigned's share of the purchase money of said lands, the sum of $3,000, and the balance of the proceeds of said single bills to pay and apply to such debts of the said Thomas as the said undersigned may be surety for; and lastly, to pay such other debts of the said Thomas as the undersigned and Jacob Markell may be jointly liable for as his securities or sureties.

JACOB M. KUNKEL."

The bill then charges that Thomas executed to Kunkel a lien as stipulated in this declaration of trust on the Allegany lands, as a guarantee for the payment of these single bills so assigned in trust. That afterwards, on the 5th of September, 1856, Thomas executed a mortgage to the complainant, Markell, and to Rhoderick Dorsey, whose administrator is also a complainant, by which the aforesaid fund in Kunkel's hands is made liable for the payment of certain debts due from Thomas to Markell and Dorsey, also to indemnify the said Dorsey because of his security for the said Thomas mentioned in said mortgage; all of which facts and amounts for which said fund is liable under this mortgage, will appear by a copy of the mortgage filed as a part of this bill, marked A; that afterwards, on the 1st of October, 1856, Thomas executed to the complainant, Rigney, a mortgage by which he secured payment to Rigney of $1,000 due from Thomas to him, out of the said trust fund in the hands of Kunkel, all of which will appear by a copy of the mortgage filed as part of the bill, marked B; that afterwards, on the 11th of November, 1856, Thomas executed another mortgage to the complainants, Pearre and Schley, by which he assigned to them the said fund in the hands of Kunkel in trust to pay them certain sums of money mentioned in the said mortgage, all of which will appear by a copy thereof filed as part of the bill marked C.

The bill then charges that the single bills so assigned to Kunkel in trust have long since, to wit, on the _____ of _____ been paid to him by J. H. Gordon, trustee, in the case of Kunkel v. Thomas O'Hearn and others, in the Circuit Court for Allegany County, as a court of equity; and that the fund was, when so paid into the hands of the said Kunkel, subject to all the trusts and charges hereinbefore stated and liable for all the debts and securities mentioned in the several mortgages; that the $3,000 which Kunkel was to take to himself out of the fund has been paid to him in whole or in part by other means, and consequently that sum is no longer a charge on the fund which is increased to that amount for distribution amongst the complainants; that Kunkel has used the fund outside of the trust, and is, therefore, liable for interest on it from the time he so used it; that the said Kunkel has heretofore refused, and still refuses, to account to your orators for said fund in trust as aforesaid.

The bill also alleges that certain-named parties, (who with Kunkel are made defendants,) are interested in the distribution and application of said trust fund, because they are creditors of the said Thomas, and the said Markell and Kunkel are securities for the said Thomas to them, and the said fund is in trust to indemnify the said Markell and Kunkel as such securities.

The bill prays for an answer from all the defendants, and that Kunkel may particularly answer on oath when the fund and the amount of it was paid him by Gordon, and whether he has used it outside of the trust, and that your orators may have such further and other relief as their case may require.

To this bill the defendant, Kunkel, demurred, and the grounds of demurrer which appear to have been relied on in the court below are:

1st. That the bill is too loosely drawn, and the charges and averments so uncertain in their object that they do not make such a case as should entitle the complainants to relief, and there being no other prayer but that for general relief, the court cannot learn from the allegations of the bill what relief would comport with the case made.

2nd. That there is no charge by the complainants that the money they claim by the exhibits filed with the bill is still due and unpaid by the said Thomas.

3rd. That the bill is multifarious.

4th. That Thomas and O'Hearn should have been made parties defendants to the suit.

The court, (Nelson, J.,) overruled this demurrer, and from this order the defendant, Kunkel, has appealed.

The cause was argued before BOWIE, C.J., and BARTOL, GOLDSBOROUGH, COCHRAN and WEISEL, JJ.

Joseph M. Palmer for the appellant.

The appellant insists that the judgment of the Circuit Court is erroneous. Three distinct propositions were submitted to the court below by the appellant upon demurrer for its determination, and the ruling of the court was, that the demurrer be overruled and the appellant ordered to answer the bill. I will argue the questions involved in the order the court below decided them.

1st. I shall contend that the complainant's bill is radically defective. It does not contain apt, proper and sufficient averments to entitle the complainants to any relief they seek. The rules and principles of equity proceedings and pleadings are clearly defined and settled in this State. Every original bill must state a consistent case on behalf of the complainants, for if their claims are inconsistent, or any of them have no claim, the misjoinder will be fatal to the suit. The bill must state the cause of action in direct terms and with reasonable certainty, not necessarily with the same technical precision as at law, but with sufficient precision to show to the court that the complainants have a definite claim in equity. The allegations must be positive and not by way of recital. It is an admitted principle in equity that no relief can be granted beyond the scope of the averments. Mitford's Eq. Pl. 42. Flint v. Reeves, 3 Ves. Jr. 343. Lyon v. Tallmadge, 1 John. ch. 184. Ellicott v. Ellicott, 2 Md. Ch. 468. James v. McKernon, 6 John. 564. 6 Paige, 239, 251. Clarke v. Turton, 11 Ves. 240. Chambers v. Chalmers, 4 G. & J. 420. Hood v. Inman, 1 Gill, 234. 4 John. ch. 437.

Can it be successfully said that the bill in this case squares with these plain practical principles of equity pleadings? I think not. There is no distinct charge or statement in the bill which, in the slightest degree, entitles the complainant jointly to any part of the trust funds in the hands of the appellant, as the trustee of Francis Thomas, placed in his hands for a specific purpose, and for the use and benefit of specific cestuis que trusts. The complainants by their bill assume a false character in relation to said trust funds in the hands of appellant. They assume the character of cestuis que trust under the declaration of the trust. They have no right, according to the averments in their bill, to any part of the trust fund as such. They only can claim, under any circumstances, a contingent interest in the surplus which may by chance remain in the hands of the appellant, as trustee, after the trust is finally settled and the real cestuis que trust are satisfied. The complainants pretend to claim some interest in said trust funds by virtue of three mortgages which they exhibit as part of their bill, given to them separately and individually, for distinct and separate purposes, by Francis Thomas. These mortgages convey by Thomas to the complainants a large and valuable real estate, and the contingent interest of Thomas in the trust funds in question, to secure the debts and claims recited in said mortgages. The appellees do not aver in their bill that there is any money due and owing on said mortgages by Thomas or anybody else. They don't pretend to claim that there is anything due on said mortgages, which is a material allegation in all bills to foreclose mortgages. The bill ought to contain such averment. It is the uniform practice, and always has been, to make such averments in a bill to foreclose mortgages, and it is considered a material averment for a mortgagee, before he can obtain an order and decree to sell, or in any way dispose of property mortgaged, first to establish in a judicial proceeding the amount of his claim. This is usually done by referring the case to the auditor, etc. It may be said that the demurrer admits this fact. It is true, that a demurrer admits all facts well pleaded, but I do not understand that a demurrer admits a fact that is not pleaded at...