Sinclair v. Auxiliary Realty Co.

• Decision Date: 22 March 1904
• Citation: 57 A. 664,99 Md. 223
• Parties: SINCLAIR v. AUXILIARY REALTY CO. OF BALTIMORE CITY et al.
• Court: Maryland Court of Appeals

57 A. 664

99 Md. 223

SINCLAIR v. AUXILIARY REALTY CO. OF BALTIMORE CITY et al.

Court of Appeals of Maryland

March 22, 1904

Appeal from Circuit Court No. 2 of Baltimore City; John J. Dobler Judge.

Suit by A. Leftwich Sinclair, administrator of the estate of Annie E Lampkin, deceased, against the Auxiliary Realty Company of Baltimore City and others. From an order sustaining a demurrer to the bill, plaintiff appeals. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, PAGE, PEARCE SCHMUCKER, and JONES, JJ.

Armstrong Thomas, for appellant.

David Stewart, for appellees.

McSHERRY C.J.

The record in this case is exceedingly involved and complicated though the questions which are ultimately raised are not difficult of solution. It will be necessary, in order to clearly present those questions, to state in as succinct a form as possible the various steps taken during the progress of the proceeding. On the 22d of April, 1901, Annie E. Lampkin filed in the circuit court No. 2 of Baltimore a bill of complaint against Elizabeth Smith and Frank St. Clair Smith. Without now pausing to state the allegations of the bill, we need only say that its object was to procure a decree vacating a deed made by Elizabeth Smith to Frank St. Clair Smith upon the ground that it was a voluntary conveyance, without consideration, and was made in fraud of the rights of the plaintiff, who was a creditor of the grantor. On the same day--that is, April 22, 1901--the defendant Elizabeth Smith filed an answer admitting the allegations of the bill, but denying that there was an intent upon her part to defraud the plaintiff. On May the 28th of the same year the other defendant, Frank St. Clair Smith, filed his answer, wherein he denied the indebtedness of his mother, Elizabeth Smith, to the plaintiff, and wherein he demanded strict and full proof of every averment of the bill not expressly admitted by his answer. On October 17, 1901, the defendant Frank St. Clair Smith filed a petition suggesting the death of the plaintiff, and alleging that she departed this life on the 31st of the preceding month of May, and praying that the cause might be ordered abated on that account. There is no copy of the docket entries to be found in the record. The next step taken in the cause, so far as the record discloses, was a petition filed on February 14, 1902, by one A. Leftwich Sinclair, of Washington, wherein it is alleged that the plaintiff had died, and that letters of administration upon her estate had been granted on the 10th of February, 1902, by the Supreme Court of the District of Columbia sitting as a probate court, and praying that the petitioner, as administrator, might be made a party plaintiff to the cause. Upon that petition on the same day an order nisi was passed making Sinclair a party plaintiff as prayed, unless cause to the contrary should be shown before the 28th day of the same month, provided a copy of the petition and order were served on the defendants or their solicitors on or before the 18th of February. No cause to the contrary having been shown, an order was passed on the 14th of October, 1902, making Sinclair a party plaintiff as prayed in his petition of February 14th. In the meantime, however, it appears that on May 22, 1902, the appellee in this cause, viz., the Auxiliary Realty Company of Baltimore, filed a petition in these proceedings wherein it was alleged: First, that by a deed dated March 19, 1902, a certain George Wiegal conveyed the property involved in this controversy to the realty company; secondly, that Wiegal had acquired title to this same property from Frank St. Clair Smith by deed dated January 3, 1902; and, thirdly, that Wiegal had purchased from Frank Smith the property and paid therefor the sum of $2,600, subject to a $1,100 mortgage, and that he had bought it in absolute good faith, and without any knowledge of the pending proceeding, and that the realty company had likewise purchased the property from Wiegal in good faith for value, and without notice of the pendency of this suit. The petition concluded with a prayer asking that the realty company, being the actual person interested in the result of the suit, might be made a party defendant with leave to defend the same. On the same day an order of court was passed granting the prayer of the petition and making the realty company a party defendant, and giving it leave to defend. Nothing further seems to have been done until the 20th of November, 1902. On the 20th of November, 1902, Sinclair, administrator, filed a petition, wherein he alleged both the death of Elizabeth Smith and Frank St. Clair Smith, and charged that both had died intestate, and that no administration had been taken out on the estate of either; that Elizabeth Smith, the mother of Frank St. Clair Smith, having died first, the latter, her only child, became her sole heir at law, and that by the death of Frank St. Clair Smith his daughter and only child, Lilian St. Clair Brady, became his sole heir. And the petition prayed that Lilian St. Clair Brady might be brought in by subpoena as a party defendant to show cause, if any she might have, why the relief prayed in the original bill of complaint should not be granted. On the same day an order was signed making the said Lilian St. Clair Brady a party defendant, and directing that a subpoena issue as prayed. On January 8, 1903, the realty company filed a petition asking to have the order of October 14, 1902, and the order of November 20th revoked. The order of October 14th, it will be remembered, was the one by which Sinclair, as administrator, was made a party plaintiff to the suit in place of Lampkin, deceased; and the order of November 20th was the one by which Lilian St. Clair Brady was made a defendant in the cause. On April 1, 1903, the court passed upon the petition of January 8, 1903, and revoked the orders of October 14th and of November 20th, and dismissed the petitions on which those orders were passed, but dismissed them without prejudice to the right of Sinclair, administrator, to file an original bill or supplemental bill in the nature of a bill of revivor within 30 days from the date of the order. On the 12th of February, 1903, the realty company filed another motion, asking that an entry should be made that the "case is terminated" and cannot be revived on the ground that it never was a lis pendens because Elizabeth Smith was never in court, and because the bill of complaint was defective, and for sundry other reasons. This motion seems to have come to a hearing on the 20th of May, 1903, upon which day the court passed an order overruling the motion of February 12, 1903, and modifying its antecedent order of April 1, 1903, to the extent of allowing Sinclair, administrator, to institute such further proceedings in this cause or by an original bill as he may desire for the revivor of this suit, provided such proceedings were instituted within 15 days. The next step taken in the case appears to be a petition filed June 1, 1903, by Sinclair, administrator, wherein much, if not all, of the facts heretofore stated in this opinion are reiterated at length. In addition to what has just been stated, the petition alleged that the delay in procuring letters of administration on the estate of Annie E. Lampkin was due to litigation pending in the probate court of the District of Columbia, and that that litigation was not brought to a conclusion until February 7, 1902. Letters of administration upon her estate, as we have already stated, were issued on the 10th of February, 1902, and her administrator filed his petition to be made a party plaintiff on the 14th of February, 1902, as previously noted. The prayer of the petitioner of June 1, 1903, asked the court to make Sinclair a party plaintiff, a thing which had been already done on the 14th of October, 1902, and had then been undone on the 1st of April, 1903, and which had been again modified on the 20th of May following. On the 2d of June, 1903, an order was passed making Sinclair a party plaintiff, and directing the Auxiliary Realty Company to proceed in the cause by demurrer, plea, or answer to the bill of complaint and to the petition of June 1st within 20 days from June 2d. On June 15th the realty company demurred to the original bill of complaint and to the petition of June 1st and for cause of demurrer assigned 13 reasons. These 13 reasons or causes may be reduced to 5: First, that the allegations of the bill of complaint are insufficient as to parties; second, that its allegations are insufficient as to the alleged debt; third, that the bill of complaint shows on its face a claim barred by limitations and laches; fourth, that by the death of Elizabeth smith any estate remaining in her if the deed were void vested in her son and only heir, Frank St. Clair Smith, and that thereby any right that may have existed in the plaintiff as a creditor of Elizabeth to have the deed from Elizabeth Smith to Frank St. Clair Smith set aside did not survive; and, fifth, that both the bill of complaint and the petition of June 1st show on their face that the petitioner has been guilty of laches. This demurrer came on for hearing, and on the 22d day of September, 1930, it was adjudged and ordered by circuit court No. 2 that the demurrer be sustained with the privilege to the petitioner, Sinclair, to amend his proceedings as he may be advised, within 15 days. On the 22d of October, 1903, an appeal was taken from the order of September 22d. Thus the questions brought up for review are the ones we have just stated as arising on the demurrer. And these questions thus raised by the demurrer will now be considered in the order in which they have been stated.

1. The allegations of the bill of complaint, it is...