Nihiser v. Nihiser

• Decision Date: 13 January 1916
• Docket Number: 61.
• Citation: 96 A. 611,127 Md. 451
• Parties: NIHISER v. NIHISER.
• Court: Maryland Court of Appeals

96 A. 611

127 Md. 451

NIHISER v. NIHISER.

No. 61.

Court of Appeals of Maryland

January 13, 1916

Appeal from Circuit Court, Washington County, in Equity; M. L Keedy, Judge.

In a proceeding for the foreclosure of a mortgage, Gustavia Nihiser filed a petition against Winton M. Nihiser, claiming the surplus. From a decretal order sustaining exceptions to the distribution in an auditor's account of the surplus she appeals. Reversed, and cause remanded.

rgued before BOYD, C.J., and BRISCOE, PATTISON, URNER, STOCKBRIDGE and CONSTABLE, JJ.

Louis J. Burger and John Hinkley, both of Baltimore (Albert J Long, of Hagerstown, on the brief), for appellant. Harry Brindle, of Hagerstown (Frank G. Wagaman, of Hagerstown, on the brief), for appellee.

BOYD C.J.

This is an appeal from a decretal order of the lower court, which sustained exceptions filed by the appellee to the distribution in an auditor's account of $721.40 to the appellant, who was a judgment creditor of the appellee, and which decreed that the appellant was indebted to the appellee in a sum equal at least to the judgment, interest, and costs. They were husband and wife until 1912, when they were divorced. They moved from West Virginia to Keedysville, Washington county, Md., in 1887, where the appellee practiced medicine. On March 24, 1887, a property situated in Keedysville was conveyed to the appellee for the consideration, as mentioned in the deed, of $3,000. At that time Mr. John T. Morris was trustee of an estate, the income of which was payable to Mrs. Nihiser for life, and the remainder was left to her children. The income seems to have amounted to about $1,500 per annum. An agreement of counsel shows that on the date of the deed a mortgage was given for $3,000, to secure the payment of five promissory notes of $600 each, payable in one, two, three, four, and five years. The appellant claims, and is apparently sustained, that the notes were paid with the income received from the trustee. At any rate the evidence shows that all of the income, with the exception of several sums, was paid to Dr. Nihiser from 1887 to 1901. On October 8, 1887, Mrs. Nihiser wrote to Mr. Morris as follows:

"We received by B. & O. express $171, amount of collections due me Oct. 1, 1887. Will you please send checks to Dr. hereafter, instead of the money, as we have opened an account with the First National Bank of Hagerstown."

Although the evidence shows that Mrs. Nihiser's income was used in paying for the Keedysville property, it likewise appears that it was done with her entire consent and acquiescence, and there is nothing to show that at the times of the payments to Dr. Nihiser there was a promise on his part to repay the amounts so received. In 1894 they moved to Baltimore, but returned to Keedysville in the spring of 1895. Mrs. Nihiser and apparently her two children, who were then seven and nine years of age, respectively, greatly preferred living in Baltimore, but the doctor was not satisfied there and they returned to Keedysville. It is claimed by the appellant that in order to satisfy her and the children in leaving Baltimore, her husband promised to build a house for her on some lots in Mountain Lake Park, Md., which she had agreed to purchase, by an agreement dated September 3, 1894. The consideration for the lots mentioned in the agreement was $600, $100 of which was paid in cash, and the remainder was to be paid in two payments of $250 each, on January 1, 1895, on January 1, 1896. The deed for the Mountain Lake Park lots was not made until November, 1903, when the lots were conveyed to Mrs. Nihiser, but in 1895 a house was erected on them. On April 2, 1895, Dr. and Mrs. Nihiser executed a mortgage on the Keedysville property, which stood in his name, to John T. Morris for $2,500, which recited that Mr. Morris had by an order dated February 25, 1887, been appointed trustee for the property and estate devised and bequeathed by Theodore Weems "for the sole and separate use of said Gustavia Nihiser (formerly Gustavia Weems) and Rachel Weems"; that by another order, passed on the 27th of March, 1895, "the said trustee was authorized to loan and advance to said Gustavia Nihiser from the trust estate held by him for her in said cause, the sum of twenty-five hundred dollars, the said loan to be for five years, with privilege of renewal, in the discretion of said trustee, and to be secured by a mortgage to said trustee on the hereinafter described property from the said Gustavia Nihiser and her husband, Winton M. Nihiser"; and that in execution of said last-mentioned order "the said John T. Morris, trustee as aforesaid, hath loaned and advanced to the said Gustavia Nihiser the sum of twenty-five hundred dollars, being part of the trust estate aforesaid held by him for her as aforesaid, the said loan to be returned at the end of five years from the date hereof, and to be secured by a mortgage of the hereinafter described property in accordance with the terms of said order."

The mortgage contains the usual covenants on the part of Dr. and Mrs. Nihiser, and provides that in case of default and a sale made under the power, the surplus, if any, after payment of expenses incident to the sale and all claims of the trustee under the mortgage, shall be paid to "the said mortgagor, Winton M. Nihiser." No part of the mortgage was paid, and Louis J. Burger, who had been appointed substituted trustee after the death of Mr. Morris, sold the property under the power of sale for $3,475.50. After distributing to the costs, including commissions, and the principal of the mortgage, the auditor distributed to Mrs. Nihiser, in part payment of the judgment held by her, the sum of $721.40. That was a judgment obtained by her against Dr. Nihiser for $1,564.19, with interest and costs, on June 4, 1912, which was after they were divorced, on a note given by him to her some time prior thereto. It was for insurance money she had received and which her husband had borrowed from her. She filed a petition in the mortgage case, asking to have the surplus above mortgage distributed to her judgment, and the court passed an order directing the auditor to so distribute said surplus, subject to all legal exceptions. The appellee filed exceptions to the audit, alleging that the debt secured by the promissory note and mortgage to the trustee was the sole and separate debt of Mrs. Nihiser, and that he signed and executed them solely as surety, that the property described in the mortgage and sold in those proceedings was at the time of the sale his sole property, and that by reason of the facts stated Mrs. Nihiser was indebted to him in the sum of $2,500, together with the costs and expenses incident to the sale. He then claimed that he was entitled to set off that sum against the judgment. Neither trustee collected any interest on the mortgage, and there seems to have been no claim for interest, either after the separation of the parties in 1909 or after the divorce.

The law in this state is too clear to admit of any question:

"That the wife may become a creditor of the husband, in respect of money or property belonging to her as her separate estate, which the husband has received under an express promise at the time of repaying to her. But if such money or other separate property of the wife has been received by the husband, with the knowledge and acquiescence of the wife, without such express promise at the time, no implied assumpsit, either legal or equitable, will arise to support a claim against the husband or his estate. The wife having the jus disponendi of her separate property, if she thinks proper to let her husband have it, or appropriate it, without any express promise or agreement at the time to account for or repay her the amount so received or appropriated, she cannot afterwards set up a claim against the husband upon the footing of a creditor. In such case she is taken to have acquiesced in the appropriation of the fund for the common benefit of herself and husband, or for the benefit of the family." Grover & Baker Sewing Machine Co. v. Radcliff, 63 Md. 496.

See also Far. & Mer. Bank v. Jenkins, 65 Md. 245, 3 A. 302; Taylor v. Brown, 65 Md. 366, 4 A. 888; Jenkins v. Middleton, 68 Md. 540, 13 A. 155; Stockslager v. Mech. Loan Inst., 87 Md. 232, 39 A. 742; Downs v. Miller, 95 Md. 602, 53 A. 445, and cases cited in them.

In Reed v. Reed, 109 Md. 690, 72 A. 414, 130 Am. St. Rep. 552, it was held that, when a wife purchases property with her money and causes it to be conveyed to herself and husband as tenants by the entireties, the effect of a subsequent decree of divorce is to convert it into a tenancy in common, and it does not entitle her to claim the entire ownership. In that opinion Tyson v. Tyson, 54 Md. 35, was referred to. There the wife, who had obtained a divorce a mensa et thoro, sought to have the court restore to her her separate estate, which her husband had received, but after referring to some of the earlier cases in this state, which were followed in those cited above, the court said:

"If the effect of knowledge and acquiescence on the part of the wife was sufficient to destroy her right as creditor in this case, unless there was an agreement or

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