Mayfield v. Kilgour

• Decision Date: 30 June 1869
• Citation: 31 Md. 240
• Parties: BENJAMIN R. MAYFIELD and Others v. ALEXANDER KILGOUR, and Others.
• Court: Maryland Court of Appeals

31 Md. 240

BENJAMIN R. MAYFIELD and Others v. ALEXANDER KILGOUR, and Others.

Court of Appeals of Maryland

June 30, 1869

Appeal from the Circuit Court for Montgomery County.

The facts of the case are fully stated in the opinion of the court. The short copies of the judgments, which were declared by the court to be sufficiently authenticated, were each certified in these words: "True copy, Test: E. B Prettyman, Clerk."

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

Richard M. Williams and Richard J. Bowie for the appellants.

William H. Tuck, for the appellees:

Brent J., delivered the opinion of the court.

The appeal in this case is taken from a decree of the Circuit Court for Montgomery County, dismissing a bill filed in August, 1864, by Mayfield and Brown, on behalf of themselves and such other creditors of Alexander Kilgour as might come in and contribute to the costs of the suit, to vacate three deeds executed by the said Kilgour on the 4th of March, 1864, upon the ground that they are fraudulent and void as against creditors. Copies of these deeds are filed with the bill as exhibits. The one marked A, conveys to William Kilgour, one of the appellees, certain lands in trust to be sold by him, to pay, after first deducting the costs and charges incurred in the execution of the trust, certain named creditors of the grantor in the order mentioned, then all his other creditors, and, lastly, the surplus to the grantor. The deed does not exact releases from any of the creditors.

The deed marked B, conveys, also, to William Kilgour in trust for Margaret Kilgour, the wife of the grantor, certain lands and furniture in consideration of, and to carry into effect an agreement entered into by the husband on the 20th of October, 1850, which is recited at length in the deed. The consideration of this agreement is, that the husband had sold in 1844, with the assent of the wife, her land in Virginia, to enable him to pay his debts and purchase other property in Maryland, with the express promise and agreement, at the time, to convey to a trustee for her sole and separate use, property in Maryland to the value of five thousand dollars.

The other deed, marked C, is a bill of sale of stock and farming utensils for the consideration of eleven hundred and forty-four dollars and fifty cents, purchased by William Kilgour as trustee for Mrs. Kilgour.

The answers of the defendants, it may be stated, generally deny the fraud, and put the complainants upon proof of the allegations in their bill. Commissions were issued to take testimony, and exceptions have been filed by both the complainants and defendants to certain portions of the proof taken under them. The exception of the complainants to the statements of Alexander Kilgour, as testified to by the witnesses Jones and Garrett in their answers to the third cross-interrogatory, is well taken. The testimony is not called for by the interrogatory, and is therefore inadmissible. Their second, third, and fourth exceptions must be overruled. The obligation of Alexander Kilgour, dated the 20th of October, 1850, and proved to have been signed by him, to convey the land mentioned in deed B to his wife Margaret Kilgour, and the evidence of Janney, taken under the commission to Virginia, are material and important in establishing an indebtedness of Kilgour to his wife, and as entering into and explaining the consideration for which the deed for her benefit was made. The evidence of Peter in regard to the note of William Kilgour, trustee, which seems to have been given for the consideration expressed in the bill of sale, has a direct bearing upon the questions involving the validity of that instrument, and could not be rejected, as will be seen hereafter, without a violation of well-established rules of law. The only objection on the part of the defendants to the evidence of the complainants, which it is important to notice in the view we take of this case, is that which goes to the proof of the judgments of the appellants. The first ground of objection is, that there is no sufficient certificate of the clerk attached to them. This objection seems to us to be too refined. We think the word "test" at the bottom of the copies filed with the signature of the clerk and the seal of his office attached, form a sufficient authentication to meet the requirements of the Code, and it is not necessary that a fuller and more extended certificate should be set out by him. Nor do we think that a full transcript of the judgments is necessary. We know of no case similar to the one before us, in which it has been required, while, on the contrary, the practice in this State has been to file only short copies, and rely upon them as sufficient proof, prima facie, of indebtedness. We must, therefore, regard the appellants as having a standing in court with the right as creditors to attack the deeds in question.

The record in this case furnishes no proof of actual fraud, but simply presents the case of a person in pecuniary difficulties, disposing of all his property by...