Six v. Shaner

• Decision Date: 05 March 1867
• Citation: 26 Md. 415
• Parties: JOHN SIX v. JEREMIAH SHANER, Martha A. Shaner, Thomas Shaw and Peter Baumgardner.
• Court: Maryland Court of Appeals

26 Md. 415

JOHN SIX v. JEREMIAH SHANER, Martha A. Shaner, Thomas Shaw and Peter Baumgardner.

Court of Appeals of Maryland

March 5, 1867

Appeal from the equity side of the Circuit Court for Frederick County.

The bill in this cased, filed November 20th, 1858, by the appellant, charges that Martha Ann Shaner, a married woman and the wife of Jeremiah Shaner, purchased at public sale from a trustee in equity, a tract of land for $3,440.07; that this sale and purchase took place March 28th, 1857, was duly reported and finally ratified September 7th, 1857, and on the 17th of October of that year the land was conveyed to the said Martha by the trustee, by deed duly executed and recorded; that about the 1st of May, 1857, the said Martha not being able to raise the entire amount of the purchase money, applied, in company with her husband, to the complainant, and requested him to pay to the trustee $850 part of said purchase money, she having, as she stated raised and paid the remainder, and your orator did accordingly pay to the said trustee the said sum of $850 on account of said purchase money; that Martha and her husband were both present at the time this payment was made, and it was then and there solemnly promised by Martha, and also by her husband, that your orator should be fully secured by a lien on the said land for the purchase money so paid by him and should have a lien on the land for the same, and it was then and there promised by the said Martha and her husband, and each of them, that they would execute a mortgage to your orator on said land, to secure him said sum of money, so soon as the trustee should execute a deed to Martha therefor, if your orator should desire to be secured in that mode; and it was distinctly and solemnly agreed by Martha and her husband that your orator should be secured on said land for said sum of money, in whatever form such security could be most valid and effectual. That afterwards, on the 13th of November, 1857, Martha agreed to sell the land to your orator for $3,000, and he agreed to purchase it at that price solely in order to secure said sum of $850, no part thereof having been paid or secured to him, as he did not desire to become the purchaser of the property, and was urged to do so by said Martha, who represented she had no means of paying him except by a sale of the land to him, and that on that day he executed to her his four promissory notes for the sum of $500 each, and it was agreed that the said $850 was to be considered as paid by your orator as so much of the purchase money, and the said Martha, on that day, executed and delivered to your orator a deed for the land, a copy of which is filed with the bill, she being then about to go to the State of Illinois; that having returned in a short time, she and her husband pretending that her deed to your orator was void because her husband had not united in its execution, undertook to sell the land to one Peter Baumgardner, a brother-in-law of said Jeremiah, for $4,000, and actually conveyed the land to him by deed dated the 28th of May, 1858, and have him put in possession thereof.

The bill then charges that at the time of this pretended sale Baumgardner knew perfectly well both that the said sum of $850 had been paid by your orator to the trustee on account of the purchase money of said land, and that no part of it had been paid by said Martha or her husband, or either of them, except by the sale of said land to your orator by said Martha as aforesaid, and also that the land had been sold and conveyed to your orator by said Martha as aforesaid, and that the deed from her to him had, long prior to that time, been duly recorded among the land records of Frederick County. It further charges that Baumgardner has not paid to said Martha or her husband the entire purchase money, but gave her his notes therefor, some of which, to a much larger amount than said sum of $850 and the interest thereon, are still due from him; that after your orator found a combination had been formed between the said Jeremiah and wife and Baumgardner, to deprive him, if they possibly could do so, of the benefit of his purchase, he informed each of them he would willingly relinquish his said purchase if said Martha would surrender to him his notes for the $2,000, which are still in her or her husband's possession, and if they, or either of them, would pay him said sum of $850 and the interest thereon; and that he is now willing to surrender all claim to said land on these conditions. He further states that on the 10th of November, 1857, said Martha executed and delivered to your orator her promissory note for the $850, which through inadvertence was not delivered up to her at the time of the sale to him, and which he brings into court to be delivered up to her on the payment to him of said sum of $850.

He further states that he has been informed, and therefore charges, that the notes of Baumgardner to said Martha, for the purchase money of said land, not yet paid, have been by some means, by her or her husband, transferred to one Thomas Shaw, a partner in business of said Jeremiah, but that they have not been bona fide assigned to him for a valuable consideration, and that said Shaw well knows the aforesaid condition of said property, and of your orator's connection therewith, and that was the consideration of Baumgardner's notes, and that the said sum of $850 is wholly unsatisfied to your orator, and that he has no means of recovering the same unless it be paid him out of the said land in some form; that Shaw has not paid to said Martha or her husband any consideration for said notes, or if any, a mere nominal one, and that said Jeremiah is not in possession of any, or if any, of a very trifling amount of visible property; and that said Martha is not possessed of any property whatever, except said notes, and that there are no means by which he can obtain said sum of $850, unless the land shall be sold to pay the same, or unless Baumgardner can be decreed to pay the same out of the purchase money yet due from him for the land.

The bill then charges that said Baumgardner, Jeremiah and Martha have combined and confederated together to cheat and defraud your orator out of his money so paid by him as aforesaid, and that Shaw has also combined and confederated with said parties to cheat and defraud your orator as aforesaid, and for the purpose of endeavoring to effectuate said fraud has accepted the custody of Baumgardner's notes, so that he can pretend he is the bona fide holder thereof for a valuable consideration; whereas, in fact and in truth, he has paid no value for the same, and holds them in trust for the use of the said Martha and her husband, and so that Baumgardner may pretend that he is a bona fide purchaser and liable to said Shaw as assignee for the balance of the purchase money not paid over to said Martha or her husband.

The bill then calls for answers on oath to these allegations, and to special interrogatories fully stated, and prays that the said sum of $850 may be declared and decreed to be a lien on said land, or that your orator is entitled to a resulting use to the amount of said sum and interest thereon, and that the said land may be sold for the payment thereof, or that said Baumgardner may be decreed to pay to your orator the same out of the purchase money yet due from him for said land, and deduct the same from the amount so due by him, and that said Martha or her husband, or whichever of them has the same in possession, may be compelled to surrender the notes given by your orator to said Martha for said purchase money, to be cancelled as to your Honor may seem just; and that said Shaw may be enjoined and restrained from assigning said notes of Baumgardner to any other person, and that Baumgardner may be enjoined and restrained from paying said notes to said Shaw, Jeremiah or Martha, or any other person, until the further order of this court, and that said Jeremiah and Martha, and both and each of them, may be restrained from assigning or transferring the notes of your orator, given to said Martha as aforesaid, to any person or persons whatsoever, until the further order of this court; and that your orator may have such further and other relief as in equity he may be entitled to.

The exhibits filed with the bill are, 1st, the deed from the trustee to Martha Ann Shaner; 2nd, the deed from said Martha to the complainants; 3rd, the deed from Shaner and wife to Baumgardner, and, 4th, the note from said Martha to the complainant for $850.

The injunction was granted as prayed.

Shaw in his answer, says he has no knowledge of the sale by Dutterar to Mrs. Shaner, the terms of it, or how she got the money to pay for the farm, except that he has heard she paid for it with the money of her husband; that he has no knowledge of the sale by her to the complainant, and of the deed by her to him, or of any transactions concerning said sale and purchase except from general rumor; and that he is entirely ignorant as to the loan of $850 by the complainant to said Martha or her husband; that he has been informed that she and her husband sold the land to Baumgardner for $4,000, and that they conveyed the same to him by the deed filed as an exhibit with the bill, which he supposed to be a fair, just and bona fide sale, not made with the intent to cheat or defraud the complainant or any one else, but as to the real facts he has no knowledge; that he has been informed and believes that said Baumgardner as part of the said purchase money gave to said Jeremiah his two single bills for $1,333.33, each dated April 1st, 1858, payable to said Jeremiah at twelve and twenty-four months respectively, with interest from date; that on the 1st of July, 1858,...