Leppoc v. National Union Bank of Maryland

• Decision Date: 23 February 1870
• Citation: 32 Md. 136
• Parties: HENRY J. LEPPOC, and others, v. THE NATIONAL UNION BANK OF MARYLAND, Garnishee of A. B. DAVIDSON.
• Court: Maryland Court of Appeals

32 Md. 136

HENRY J. LEPPOC, and others, v. THE NATIONAL UNION BANK OF MARYLAND, Garnishee of A. B. DAVIDSON.

Court of Appeals of Maryland

February 23, 1870

APPEAL from the Superior Court of Baltimore City.

The appellants, the plaintiffs below, having obtained a judgment against A. B. Davidson, issued an attachment thereon, which was laid in the hands of the appellee; nulla bona was pleaded, and issue joined thereon.

At the trial of the cause the plaintiffs offered in evidence a deed dated March 27, 1867, from Davidson and wife, which, in consideration of $50,000 to them paid by the bank, conveyed to the bank a tract of land in Baltimore county. They also proved by Davidson that the consideration money had never been paid to him. Upon cross-examination he proved that he was to have received about $2,500 from the bank, in case the arrangement between them had been carried out. That, by this arrangement, the bank was to pay about $18,000 of liens on the property, retain $9,000 to meet a judgment against him and then to retain $20,000 in satisfaction of its own claim against him, for about $27,000, and pay over the balance to him.

It was in evidence that a committee of the bank had agreed with Davidson to make this arrangement, provided the Board of Directors would consent to it, and the counsel of the bank should approve of it. It was also proved that if this arrangement had been carried out it would have released certain collaterals, worth at least $2,000, which the bank held as security for the debt due by Davidson.

Davidson without waiting for the sanction of the Board on the approval of the bank's counsel, had the deed prepared by his counsel, executed it, and got from Mr. Mickle, the Cashier of the bank, $50 to pay for a United States stamp, and then gave the deed to his counsel, to have it recorded, who immediately put the deed upon record, and, on the same day, confessed judgment against Davidson to the amount of more than $20,000. It was also proved by Davidson that "the only objection the bank made to the deed was, that it had not been approved by their counsel," and Mr. Mickle testified that he interlined in the deed, before its execution, the words "at Baltimore;" that he told Davidson to leave it for the inspection of Mr. Taylor, (the President of the bank,) and of the bank's counsel; that he handed the deed back to Davidson, after making the above correction, who told him he was going to take it or send it to Towsontown to be recorded. After the deed had been thus executed and put on record by Davidson, the matter was submitted to the counsel of the bank, who was of opinion, and so advised the bank that the proposed arrangement was in violation of the bankrupt law, and that the deed did not pass a valid title to the property it conveyed. Notice of this was given to Mr. Davidson, and the bank declined to carry out the arrangement, and afterwards, on the 25th of May, 1867, the property was re-conveyed to Davidson.

The plaintiffs offered the following prayers:

1. If the jury shall find, from the evidence, that the defendant, (Alexander B. Davidson,) and his wife, on the 27th of March, 1867, executed and acknowledged the deed of that date to the garnishee, which has been offered in evidence, and that said deed was prepared and executed, and placed upon record, with the privity of, and without disapproval by the garnishee, and that the garnishee furnished the money to pay for the revenue stamp thereon, and that the garnishee received into its possession the said original deed, after the same had been recorded; and shall further find that no part of the consideration money named in said deed has been paid by the garnishee, but that, by an agreement between it and the said A. B. Davidson, the garnishee was to apply a portion thereof to the satisfaction of certain liens then outstanding on the land conveyed, and another portion thereof towards the payment of a claim of its own against the said Davidson, and was to pay over the residue to the said Davidson, and was also to release the collaterals deposited with it by said Davidson to secure the amount of his indebtedness to said garnishee, then the jury shall find for the plaintiff, for such sum (not exceeding the amount due upon the judgment attached for in this case) as they shall find was due under the agreement aforesaid by the garnishee to the said A. B. Davidson, at the time the said attachment was laid in its hands, together with the value of the securities deposited, as above, with the garnishee.

2. If the jury shall find from the evidence, that the defendant, (Alexander B. Davidson,) and his wife, on the 27th of March, 1867, executed and acknowledged the deed of that date to the garnishee, which has been offered in evidence, and that said deed was prepared and executed, and put upon record with the privity, and without the dissent of the President and Cashier of the garnishee, and that on the following day the making and recording of the deed was communicated to the Board of Directors of the garnishee, who thereupon passed the resolution, given in evidence by the garnishee, and that the said deed was submitted to the inspection of the counsel of the garnishee on the Thursday week following its date, who thereupon disapproved of the same, and that the garnishee, on the 25th of May following, executed the deed to A. B. Davidson, which has been offered in evidence; and shall further find, that no part of the consideration money named in said deed has been paid by the garnishee, but that by an agreement between it and said A. B. Davidson, the garnishee was to apply a portion thereof to the satisfaction of certain liens then outstanding on the land conveyed, and another portion thereof towards the payment of a claim of its own against the said Davidson, and was to pay over the residue to said Davidson, and was also, on being thus satisfied for its own claim, to release from pledge certain securities of the said A. B. Davidson, deposited with it as collaterals, to secure said indebtedness from him to it; then the jury shall find for the plaintiffs for such sum (not exceeding the amount due upon the judgment attached for) as they shall find was due under the agreement aforesaid, by the garnishee to the said A. B. Davidson, at the time the said attachment was laid in its hands, together with the value of the securities deposited as above with the garnishee, (the amount of their verdict, however, not to exceed the amount due upon the judgment attached for.)

3. And that all the evidence tending to show that the said deed was accepted by the garnishee, subject to the subsequent approval or disapproval thereof by the garnishee's counsel, is inadmissible, and is not to be considered by the jury.

And the garnishee offered the following prayer:

If the jury find from the evidence, that the arrangement between Davidson and the garnishee in reference to the payment of the consideration money mentioned in the deed of March 27th, 1867, offered in evidence, was conditional, and was not to become operative and obligatory until the taking of said deed upon the terms of said arrangement should be approved of by its Board of Directors, and said deed should be approved by I. N. Steele, its counsel, and that said Board referred the matter to its said counsel, and he disapproved of said deed, and said disapproval was communicated to Mr. Davidson, and the property mentioned in said deed was conveyed back to him by the garnishee, by the deed of May 25th, 1867, offered in evidence, then the plaintiffs are not entitled to recover.

The Court rejected the prayers of the plaintiffs, and granted the prayer of the garnishee; and the verdict and judgment being for the garnishee the plaintiffs appealed.

The cause was argued before STEWART, MAULSBY, BRENT, MILLER and ALVEY, J.

John Henry Keene, Jr., for the appellants.

The deed has a settled legal construction, and the parol testimony of witnesses, was inadmissible to contradict it; the common, the Scotch and the civil law all agree in this, contra scriptum testimonium non scriptum testimonium non fertur. 1 Greenleaf on Evidence, (8 Ed.,) 275, 276, 277.

To have admitted the oral evidence of witnesses, as a substitute for instruments to...