Niller v. Johnson

• Decision Date: 18 April 1867
• Citation: 27 Md. 6
• Parties: ELEANORA NILLER, by her next friend, GEORGE HIRSCHMAN v. JAMES H. JOHNSON, AND JOHN J. DANNEKER, Sheriff of Baltimore City.
• Court: Maryland Court of Appeals

27 Md. 6

ELEANORA NILLER, by her next friend, GEORGE HIRSCHMAN v. JAMES H. JOHNSON, AND JOHN J. DANNEKER, Sheriff of Baltimore City.

Court of Appeals of Maryland

April 18, 1867

APPEAL from the Circuit Court of Baltimore City.

The facts in the case are sufficiently set forth in the opinion of the Court.

The cause was argued before BOWIE, C.J., BARTOL, WEISEL and CRAIN, J.

Charles H. Wyatt and Wm. Sheppard Bryan for the appellant, contended:

1st. That the appellant was the bona fide owner of the property levied upon, and was entitled to have the same protected by injunction. Bridges & Wood vs. McKenna, 14 Md. Rep., 258; Lewis et al. vs. Levy, 16 Md. Rep., 85.

2d. Even if the property could be considered as the gift of her husband, (which is not the case,) it was vested in her long prior to the cause of action on which judgment was rendered and no fraud existing, it could not be reached by a subsequent creditor. Code of Pub. Gen. Laws, Art. 45, sec. 1; Atkinson vs. Phillips, 1 Md. Ch. Dec., 507; Unger and Wife vs Price, 9 Md. Rep., 557; Mayor and City Council of Baltimore vs. Williams, 6 Md Rep., 235; Williams et al. vs. Banks et al., 11 Md. Rep., 198.

3d. The judgment is evidence of the cause of action stated in the declaration, but of no other. The appellee's alleged cause of action filed under the commission, sets forth a contract variant from that stated in the declaration. It is not proven by the judgment; and on the trial at law, or on the execution of the inquisition, it would not have been competent for the respondent to offer such a contract in evidence. Clarke vs. Gray, 6 East., 564; Sheehy vs. Mandeville, 7 Cranch, 208; 1 Greenl. on Evd., secs. 66, 67, 68, 528.

4th. The declaration states no time when the liability of Conrad Niller accrued. An attempt is made to supply this defect by evidence aliunde. If the appellee, Johnson, can go into evidence for this purpose, and thus set up an indebtedness long antecedent to the suit, the enquiry is equally open to the appellant, and she may show that the indebtedness thus sought to be established, did not in point of fact exist. If it were otherwise, she would be bound by evidence which she was denied the opportunity of contradicting. Hughes vs. Jones, 2 Md. Ch. Dec., 178; Thrasher vs. Haines, 2 N. H., 443; Vose vs. Morton, 4 Cush., 27, 31; Groshon, garn. of McPherson & Thomas vs. Thomas, 20 Md. Rep., 234.

5th. The evidence shows that the contract filed under the commission, as the cause of action, on which the judgment was obtained was a forgery, and therefore it could not be the foundation of Niller's indebtedness to the appellee, Johnson.

6th. In point of fact there is no evidence, except the judgment, to shew when the indebtedness did accrue. No one shows when the appellee, Johnson, released the mortgage; and until he did this, he had no right of action. Nor is there any evidence to shew that the mortgage was released at all, except so far as that fact is inferred from the judgment.

7th. The judgment, as against the complainant, is only evidence of the fact that the judgment was rendered, and of nothing more; the complainant being neither a party nor privy to the case. 2 Smith's Leading Cases, 821, 825; 1 Greenl. Evd. ss., 528, 535, 588; 1 Starkie Evd., 61; Cecil vs. Cecil et al., 19 Md. Rep., 72; Thrasher vs. Haines, 2 N. H., 443; Vose vs. Morton, 4 Cush., 27, 31; Garrett vs. Johnson, 11 G. & J., 173.

Edward Duffy for the appellees.

1st. The appellant cannot set up a defence of forgery, even if it were true,-- that defence should have been made in the proceedings at law, and equity cannot now interfere. The evidence upon that subject, therefore, is inadmissible. Gott and Wilson vs. Carr, 6 G. & J., 309; Richardson et al. vs. Mayor and City Council of Baltimore, 8 Gill, 433. And the judgment is conclusive, and cannot be impeached, even by third parties, when coming incidentally in question. Powles et al. vs. Dilley et al. 9 Gill, 222; Ranoul vs. Griffie, 3 Md. Rep., 54.

2d. The contract on which the judgment was obtained, not being dated, it is competent to shew its date, and evidence for that purpose may be rebutted; but no enquiry can be made into those matters which were concluded by the judgment. There was no variance, but if there were, the judgment would cure it.

3d. The Statute of Elizabeth applies to contracts as well as debts, if the contract were made before the deed to appellant,--therefore it makes no difference whether the appellee's right of action had accrued or not. 1 Amer. Lead. Cases, 42, note to Sexton vs. Wheaton.

4th. The proof shows, that the contract was not a forgery, that it was made more than two years before the bills of sale, and that they were mere shams to evade the appellee's claim. For these reasons the decree should be affirmed.

CRAIN J., delivered the opinion of this Court.

The appellant in this case filed her bill in the Circuit Court of Baltimore city, praying for an injunction to protect her separate property, which had been levied upon to satisfy a judgment against Conrad Niller, her husband, in favor of the appellee, James H. Johnson. The appellant alleged in her bill that the goods and property levied upon were her separate property, and did not belong to her husband, Conrad Niller, and was not answerable for the payment of his debts. The appellees answered her bill, denied the jurisdiction of the Court, but admitted that the property in controversy had been levied upon for the payment of a judgment of the appellee, Johnson, recovered against Conrad Niller in the Court of Common Pleas of the City of Baltimore; that said judgment was a bona fide judgment against Conrad Niller, the husband, and that the property levied upon was the property of Conrad Niller, and denied that the appellant had any interest whatever in the same, and asked for the injunction to be dissolved and the bill dismissed. Issue was joined and a commission issued, under which a variety of testimony, both written and oral, was taken. The Judge of the Circuit Court, on the final hearing of the case, dissolved the injunction and dismissed the bill.

The view which the Judge of the Circuit Court took of the case, dispensed with the necessity of his deciding the question of jurisdiction, but as the want of jurisdiction was relied on in the answer of the appellees, we deem it our duty to declare the question of jurisdiction to be res judicata, since the decision in this Court in the case of Bridges and Woods vs. McKenna, 14 Md. Rep., 258, recognized and affirmed in Lewis et al. vs. Levy, 16 Md. Rep., 85.

After these decisions, if we shall decide, upon examination of this case, that Eleanora Niller, the wife of Conrad, was the bona fide owner of the property levied upon, she was entitled to be relieved in equity, and have her property protected by a bill of injunction.

Having thus summarily disposed of the question of jurisdiction, we will consider the claim of the appellant to the goods and property in controversy, as her separate property. From an examination of the evidence, we find she claims the property in virtue of two bills of sale. The first is a bill of sale from Conrad Niller, her husband, to William M. Willis conveying the property therein mentioned, for the sum of three hundred dollars, and dated the 1st of November, 1862; this bill of sale was duly executed; the bona fides of it was supported by the affidavit required by law; the second is a conveyance of the same property by Willis to Eleanora Niller, the wife of Conrad; this bill of sale is dated the 4th of November, 1862, for the consideration of five dollars. These bills of sale were duly acknowledged and recorded. By virtue of these bills of sale, the property vested in the appellant as her separate property, protected from the subsequent debts of the husband. Art. 45, sec. 1, of Code of Pub. ...