Levy v. Steinbach

• Decision Date: 24 June 1875
• Citation: 43 Md. 212
• Parties: SAMUEL LEVY and RACHEL, his Wife v. GEORGE P. STEINBACH.
• Court: Maryland Court of Appeals

43 Md. 212

SAMUEL LEVY and RACHEL, his Wife v. GEORGE P. STEINBACH.

Court of Appeals of Maryland

June 24, 1875

APPEAL from the Circuit Court of Baltimore City.

The facts of the case are stated in the opinion of the Court.

The cause was submitted to BRENT, GRASON, MILLER and ALVEY, J.

George E. Nelson and Winfield J. Taylor for the appellants.

The charge of insolvency in the bill is not sufficiently stated. Allegations "that complainant is informed and believes" that material facts exist, are not sufficient. McDowell vs. Graham, 3 Dana, 73; Jones vs. Cowles, 26 Alab., 612.

Insolvency must have existed at the date of the assignment, or the assignment will be good--no equities existing to cling to it. Dilly vs. Barnard, 8 G. & J., 170; Lingan vs. Henderson, 1 Bl., 236; Barbour on Set-off, 34, 191.

The affidavits of insolvency are not sufficient, they only show insolvency at their date,--any existence of it before, is not proven with legal force sufficient to overcome the appellants' sworn answer. The appellants thought it only necessary to file two counter affidavits in addition to their answer, to which the attention of this Court is directed. See 1 Md. Dig., p. 405, sec. 2; 2 Md. Dig. p. 240, s. 50; Washington Un. vs Green, 1 Md. Ch. Dec., 97. Also cases in 3 Md. Dig., p. 174, secs. 78, 80; Hoffman vs. Livingstone, 1 Johns. C. R., 211; Gibson vs. Tilton, 1 Bl., 355.

A party who seeks equity must do equity, (Randall vs. Swann, 10 G. & J., 316,) and a complainant in equity must in his bill, aver that he has done or offered to do, or is ready and willing to do all that on his part is necessary to entitle him to the relief he seeks, or show adequate reason why he should be excused. Oliver vs. Palmer, 11 G. & J., 426; Craig & Angle vs. Ankeney, 4 Gill, 225.

So that, whenever an injunction is granted to restrain a judgment at law, on the ground that the defendant at law is entitled to a credit for a sum which is less than the whole amount of the judgment, it ought to be with a proviso, that the plaintiff at law may proceed by execution to collect the undisputed balance of the judgment. Hodges vs. The Planters Bank, 7 G. & J., 306; Gott vs. Carr, 6 G. & J., 309; 3 Md. Dig., p. 171, sec. 45, case cited.

John W. Simpson, for the appellee.

The insolvency of the respondent, Samuel Levy, at the time of the entry of the judgment to the use of the wife, was ground for the jurisdiction of the Chancery Court to interfere, and grant the relief prayed by the complainant, viz: an allowance of the set-off claimed by him. Waterman on Set-off, 442, &c. Green vs. Campbell, 2 Jones, Eq., 446; Walton vs. Bonham, 24 Ala., 513; Wray vs. Furniss, 27 Ala., 471; 3 Leading Cases in Eq., 185, &c.

The assignment from Samuel Levy to his wife, directly, of the judgment, was invalid, being in prejudice of the rights of his subsisting creditors. Code Pub. Gen. Laws, Art. 45, sec. 1, &c. Green vs. Early, et al., 39 Md., 229, &c.

The assignee of a judgment takes the same, subject to all the equities attending the same, and particularly the equity of set-off, as claimed by the complainant. Porter vs. Liscomb, 22 Cal., 430; Hobbs vs. Duff, 23 Cal., 596; Graves vs. Woodbury, 4 Hill, 559; Blakesley vs. Johnson, 13 Wis., 534; Scott vs. Harkins, 32 Geo., 306; McJilton vs. Love, 13 Ills., 495; Jordan vs. Black, 2 Mur. Eq., (N. C.,) 32; Robeson vs. Roberts, 20 Ind., 161; Rawson vs. McJunkins, 27 Geo., 434.

GRASON J., delivered the opinion of the Court.

It appears from the record in this case that, on the 14th day of November, 1874, the appellant, Samuel Levy, recovered a judgment for one hundred dollars and costs against the appellee in the Court of Common Pleas of Baltimore City, and that the judgment was the same day assigned to Rachel Levy, the other appellant, and that on the 28th day of the same month a fieri facias was issued on the judgment, returnable to the January term, 1875. On the third day of December, 1874, the appellee filed his bill in the Circuit Court of Baltimore City stating the above judgment and execution, and alleging, among other things, that before and at the time of the rendition of said judgment, the appellant, Samuel Levy, was indebted to the appellee in the sum of eighty-two dollars and sixty-six cents for goods furnished him by the appellee, and that the assignment of the judgment by the appellant Samuel Levy to his wife, was made without consideration and in fraud of the appellee's rights, and to prevent him from filing his said claim against said Samuel, and having it set-off thereto. The bill also alleges that he was informed and believed that, at the time of the rendition of said judgment as well as at the time of filing the bill, the said Samuel was hopelessly insolvent. The bill further charges that certain of the appellee's personal property had been seized under the fieri facias and was about to be sold by the sheriff, and prayed that an injunction might be granted to enjoin the sale, and that the appellee's claim against said Samuel might be set-off, as far as may be, against the aforesaid judgment. The injunction issued as prayed, and on the seventh day of January, 1875, the appellants filed their answer, with a motion to dissolve the injunction. It is unnecessary to notice the answer further than to say that it fully admitted the indebtedness of said Samuel to the appellee as stated in the bill of complaint, and denied that the assignment was made in fraud of the creditors of said Samuel, but that it was made in consideration of a debt due to his wife, and subject to a lien of fifty dollars due his counsel for services in securing the judgment. Under an order of the Circuit Court proof was taken, which fully establishes the insolvency of said Samuel. On the 27th January, 1875, the Circuit Court passed an order overruling the motion to dissolve the injunction and continuing the same until final hearing. From this order the present appeal was taken, and the only question legitimately before us is, whether there was error in overruling the motion to dissolve, and continuing the injunction until the final hearing?

The order of the Circuit Court is alleged to be erroneous, not because the appellee had no right to the equitable set-off nor that Rachel Levy did not take the assignment of the judgment subject thereto, but principally on the ground of...