Maskell v. Hill

• Decision Date: 20 November 1947
• Docket Number: 28.
• Citation: 55 A.2d 842,189 Md. 327
• Parties: MASKELL et al. v. HILL.
• Court: Maryland Court of Appeals

55 A.2d 842

189 Md. 327

MASKELL et al. v. HILL.

No. 28.

Court of Appeals of Maryland

November 20, 1947

Appeal from Circuit Court, Baltimore County; John B. Gontrum, Judge.

Suit by Bertha Elizabeth Hill against Alexander J. Maskell and Johanna D. Maskell and others, to have certain deeds declared void, to require Alexander J. Maskell to account to complainant for her share of rents and profits, and for appointment of trustee for sale of realty and for distribution of proceeds. The named defendants demurred to the complaint. From an order overruling the demurrer, the named defendants appeal.

Order affirmed.

Fred J. Van Slyke and Daniel S. Sullivan, Jr., both of Baltimore for appellants.

John Grason Turnbull, of Towson, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

COLLINS Judge.

This is an appeal from an order of the Circuit Court for Baltimore County overruling a demurrer filed by the appellants Alexander J. Maskell and Johanna D. Maskell, defendants below, to the bill of complaint filed by the appellee, Bertha Elizabeth Hill, plaintiff below.

The bill of complaint filed by Bertha Elizabeth Hill, appellee alleges in effect the following matters.

Her maiden name was Bertha Elizabeth Kidd, but for a period of time between 1935 and 1940 she was known by the name of Bertha V. Hill. In 1937 she was single and nineteen years of age. For a period extending from August 14, 1937 to 1940, she and one of the appellants, Alexander J. Maskell, lived together as man and wife although they were not in fact married to each other.

Alexander J. Maskell, the appellant, was in fact married, not divorced but separated from his wife. During the period of time that these parties lived together they adopted the name of Hill. The appellee was known as Bertha V. Hill although in fact her name was Bertha Elizabeth Kidd. The appellant, Alexander J. Maskell, was known as Harry A. Hill although his true name was Alexander J. Maskell.

On August 14, 1937, Alexander J. Maskell, the appellant, and the appellee under their assumed names of Harry A. Hill and Bertha V. Hill, acquired title to a certain tract of land in 'Kenwood' in Baltimore County. These two parties took title to said property as Harry A. Hill and Bertha V. Hill, his wife, as tenants by the entireties, their heirs and assigns in fee simple. This property was subject to a mortgage to Belmar Permanent Building and Loan Association, in the amount of $3,000 being a part of the purchase price and executed at the same time as the aforesaid deed. The appellee alleged that said mortgage has been paid in full although not released on the land records of Baltimore County.

After the execution of this deed Alexander J. Maskell and Bertha Elizabeth Kidd took possession of the property and occupied it until sometime in 1940, at which time they separated and have never lived together since. The appellee thereafter married William Hill, with whom she now resides. After the separation of these parties the property was rented and the appellee is advised that the rental has been $60 per month, all of which Maskell has collected and for none of which has he accounted to the appellee for her proportionate share. After the separation of the parties, by deed purported to have been executed by Harry A. Hill and Bertha V. Hill, his wife, dated November 5, 1941, and recorded among the land records of Baltimore County, this property was transferred to one of the appellants, Alexander J. Maskell. The appellee alleges that she never executed any deed to this property, and the deed transferring title to that appellant is fraudulent and void and in derogation of the rights of the appellee in and to an undivided one-half interest in the property.

Thereafter on January 9, 1943, the appellants granted and conveyed this property unto Fred J. Van Slyke, which deed was recorded among the land records of Baltimore County.

On the same day, January 9, 1943, the said Fred J. Van Slyke, and his wife reconveyed said property to the said appellants, Alexander J. Maskell and Johanna D. Maskell, his wife, as tenants by the entireties, and this deed was also recorded among the land records of Baltimore County.

The appellee did not learn of the aforesaid transactions which she alleges to be fraudulent and void, until approximately three months before the filing of this bill of complaint and alleges that she has not been guilty of laches in failing sooner to prosecute this matter. She further alleges that the deeds hereinbefore referred to, except the deed to herself and the appellant, Maskell, are fraudulent and void and of no effect and do not deprive her of her legal undivided one-half interest in said property which she claims she and the appellant hold as tenants in common. She further alleges that the property hereinbefore described is not susceptible of partition and asked that it be sold and the proceeds divided among the parties entitled according to their respective interest.

She asks that the pretended deeds hereinbefore mentioned be declared void and of no effect and that they be vacated, annulled, and set aside by decree; that the appellant, Alexander J. Maskell, be required to account to her for her proportionate share of the rents and profits accruing from said property since the separation of the parties in the year 1940; that a trustee be appointed for the sale of said property and the proceeds distributed among those entitled thereto; and for further relief.

A demurrer was filed to this bill of complaint by the appellants. Although Belmar Permanent Building and Loan Association and Fred J. Van Slyke were made parties defendant to the bill, they did not join in the demurrer. This demurrer states as special grounds that (1) the appellee is seeking aid of the Court of Equity in the enforcement of rights based on an illicit cohabitation which contravenes the settled public policy of the State of Maryland as to require a court of equity to refuse aid to either party; (2) the bill of complaint is based on the theory that the appellant and the appellee are tenants in common of fee simple real estate, that the appellee is now married to William Hill who is a necessary party to the case, but is not included as a party in the bill of complaint; (3) that the bill of complaint shows on its face a delay on the part of the appellee of three years and nine months in filing after the execution and recording of the deeds she seeks to set aside, and that although she claims that she did not learn of these transactions until approximately three months before the filing of the bill of complaint, she had constructive notice by the record of the deeds; and (4) that the claim for an accounting of rent is barred by limitation or laches at least as to such part as accrued before October, 1943.

The Chancellor by order on March 17, 1947, overruled the demurrer to this bill of complaint. From that order the appellants appeal.

The first and main special ground on which the appellants rest their demurrer is that equity should refuse to aid the appellee in the enforcement of rights based on illicit cohabitation which contravenes the settled public policy of this state. They argue that because Alexander J. Maskell and the appellee were living in an illicit relationship at the time the property in dispute was deeded to them that equity should refuse to aid either party in establishing their rights to the property. They rely on the cases of Gotwalt v. Neal, 25 Md. 434, and Baxter v. Wilburn, 172 Md. 160, 190 A. 773. The latter case was reviewed in the Maryland Law Review, Vol. II at page 291 and Vol. V at page 331.

In the case of Gotwalt v. Neal, supra, a bill was filed to set aside two deeds alleged to have been executed by Gotwalt without consideration and under duress of the appellee, and to have an account taken of certain personal property taken possession of by the appellee under the deeds. Gotwalt had been employed by Neal as a clerk and salesman and was accused of having embezzled large sums of money from his employer. The court found that the papers were executed 'for the purpose of compounding a threatened prosecution for embezzlement.' The court there decided that Gotwalt was not entitled to any relief, the law being well settled that contracts made in violation of law cannot be enforced. The court said in that case at page 446 of 25 Md.:

'When, however, such contracts have been executed by the payment of the money thereon, or the conveyance and delivery of property, and application is made to a Court of Equity, by one of the parties to the contract, to grant him relief by ordering the money to be repaid or the property to be returned, the rule which seems to be best established, both by the weight of authority and reason, is to refuse to grant relief and to leave the parties where they have placed themselves.' (Italics supplied here.)

In the case of Baxter v. Wilburn, 172 Md. 160, 190 A. 773 supra, Baxter, about the year 1928, with a wife living, began an illicit relationship with the appellee, Wilburn, then a widow, and continued in it for about seven years, the appellant and the appellee living together during most of that time. Baxter's wife died in 1933. In 1931 while the illicit relationship between these parties was continuing, the appellee expressed a wish for a home in the country. The appellant bought a home and had it conveyed according to an arrangement for the purpose of saving the property from his wife's conjugal rights, and also to save it for himself in case the appellee should die before he did. The deed was taken in the name of the appellee alone. At the same time a mortgage was executed by the appellee to the appellant being withheld from...