Wampler v. Wolfinger

• Decision Date: 06 May 1859
• Citation: Wampler v. Wolfinger, 13 Md. 337 (Md. 1859)
• Parties: JEREMIAH WAMPLER v. JOHN WOLFINGER and ABRAHAM STRITE.
• Court: Maryland Court of Appeals

13 Md. 337

JEREMIAH WAMPLER v. JOHN WOLFINGER and ABRAHAM STRITE.

Court of Appeals of Maryland.

May 6, 1859

A bill filed by a lunatic and his committee to vacate a deed of real estate, as being fraudulently obtained from the lunatic charged, among other allegations, that the consideration set forth in the deed was fraudulent and merely pretended, and even if it was paid by the grantee to the lunatic, it was wholly inadequate, and, by fraudulent devices of the former was extorted and taken from the latter, and he was altogether deprived thereof. On this bill a decree pro confesso was passed, vacating the deed, directing the real estate to be sold, and ordering the defendant, the fraudulent grantee to account for the issues and profits of the land. Upon appeal from this decree by the defendant; HELD:

1st. The bill being taken pro confesso, its allegations negative the presumption that the appellant either paid, or secured to be paid, any thing as purchase money, and he has therefore, no right to have the cause remanded for the purpose of allowing him to be reimbursed on account of purchase money.

2nd. The decree is not objectionable, because it charged the appellant with the issues and profits of the land.

3rd. The appellant cannot ask a reversal of the decree, upon the ground that the allegations of the bill were not sufficient to authorise a sale of the lunatic's real estate, such error, if it exists, being no injury to the appellant.

4th. The appellant having appeared to the bill and failed to answer, he was entitled to notice of the order for taking the bill pro confesso, previous to the passage of the final decree, and such order not containing a proviso, that a copy thereof be served on the defendant, or left at his usual place of abode, before a day certain, for such error the decree must be reversed.

5th. But, notwithstanding this reversal, the rights of the purchasers of the land under the decree, are not to be affected, but are to be held as good and valid as if the decree had been affirmed.

APPEAL from the Equity Side of the Circuit Court for Washington County.

The bill in this case was filed on the 25th of October 1856, by Wolfinger, a lunatic, and Strite, the committee of his person and estate, against the appellant, and alleges, in substance, that Wolfinger having been, from nativity, of weak and unsound mind, was seized and possessed of about fifty-nine acres of very valuable land situated in Washington county, and of considerable personal estate, but becoming subject to the undue influences and fraudulent impositions of the defendant, he was, on the 10th of May 1851, induced thereby to execute to the defendant an absolute deed of all his land and real estate, " for the stated and pretended consideration of $3523.50, but which said consideration, stated and set forth in said deed, is, in fact, fraudulent and merely pretended, and even if the said stated consideration was paid by the said Wampler to the said Wolfinger, it was wholly inadequate, and by the fraudulent devices and contrivances of the said Wampler, it was extorted and taken from the said Wolfinger, and he was altogether deprived thereof; " and that, ever since the date of this deed, the defendant has been in the exclusive possession of this land and real estate, receiving and enjoying the issues and profits thereof, against right and conscience.

The bill further alleges, that by the same fraudulent imposition and wiles, Wolfinger was induced to give to Wampler, or to his family, all his personal estate, without consideration; and that afterwards a writ de lunatico inquirendo was issued, under which an inquisition was taken, by which it was found, that Wolfinger, at the time of taking it, (12th of April 1855,) was a lunatic, and had been such from his nativity; and that this inquisition was duly confirmed, and the complainant, Strite, appointed committee of his person and estate; and that having been so deprived of his property, the lunatic has not now, and has not had for some five years past, any means of support or of paying the costs of the said inquisition.

The prayer of the bill is, that the deed for the land may be vacated and the land restored to Wolfinger, or decreed to be sold and the proceeds applied to pay the costs of the inquisition, and procuring necessaries for the lunatic, and the residue invested under the direction of the court; and that the defendant, Wampler, may account for the issues and profits of the land, and also for all moneys and other personal property he may have received or obtained from Wolfinger, and for general relief.

The proceedings in lunacy, and the deed, were filed as exhibits with the bill. The defendant being summoned, appeared by counsel, at November term 1856, and the case was continued to the February, and then to the March term 1857, when an attachment was issued against him for default of answer, returnable at the July term, which was duly returned, " attached; " and on the 15th of July 1857, the court, (PERRY, J.,) on application of the complainants, passed an order, in which, after reciting the appearance and failure to answer, and the attachment and its return, it is then ordered, " that said defendant, Wampler, put in a good and sufficient answer to the said bill of complaint, or plead or demur to the same, on or before the fourth day of the next term of this court, (the same being the 30th day of July instant,) or otherwise, upon failure thereof, this court will, upon application of the said complainants, proceed to take the said bill of complaint pro confesso, or direct a commission to issue for taking depositions, and will finally decree in the premises, as to this court shall seem consistent with the established principles of equity, in the same manner as if the said defendant had appeared and answered, and depositions had been taken in the usual way."

At the next term, and after the lapse of the time limited by the aforegoing order, the defendant having failed to answer, plead or demur, the court, on the 24th of August 1857, passed a decree taking the bill pro confesso, setting aside and vacating the deed, directing the real estate to be sold, and the proceeds brought into court, and appointing a trustee for that purpose, and ordering the defendant to account for the issues and profits of the land, and referring the case to the auditor to state the account, upon proof to be taken before him by both parties.

The land was sold, by the trustee, on the 5th of January 1858, the sale duly reported, and finally ratified in March following, and on the 19th of April 1858, the defendant appealed from the decree of the 24th of April 1857.

The cause was argued before LE GRAND, C. J., ECCLESTON and BARTOL, J.

A. K. Syester for the appellant, argued:

1st. That the decree is erroneous, in not providing that the proceeds of sale or any part thereof should be applied to reimburse the appellant for any money bona fide paid by him on the purchase, and in making no provision by which such reimbursement can be had. In the case of Long vs. Long, 9 Md. Rep., 348, a case very similar if not identical with the present, this court has held, that the party was entitled to be reimbursed for any money he may have paid the lunatic on account of the land. That authority, it is submitted, must govern this case.

2nd. That the decree is erroneous in directing a sale of the land under the averments of the bill, and the facts as disclosed by the record. Under the acts of 1828, ch. 26, 1829, ch. 222, and 1833, ch. 150, a court of equity can only direct a sale of the real estate of a lunatic, on the application of his trustee or committee, upon its appearing to the satisfaction of the court, that such sale is necessary for the maintenance of the lunatic or the payment of debts. This bill does not distinctly aver, that a sale is necessary for the maintenance of the lunatic, or that it will be for his interest or the interest of the estate to sell. It does not refer to any other debt than the costs of the inquisition, nor does it aver, that the annual issues and profits are insufficient for these purposes. But if the averments of the bill are sufficient, they are wholly unsupported by proof. No testimony was taken, and there is no proof that the lunatic is without support unless a sale is made, or that the issues and profits are insufficient for his maintenance after the payment of the costs of the inquisition.

3rd. That the decree is also erroneous, because the order for taking the bill pro confesso, and requiring an answer by a certain day, was never served on the defendant, and contains no provision, that notice of it should be given him, and he had, in fact, no notice thereof. 12 Md. Rep., 293, Porter vs. Timanus.

R. H. Alvey, for the appellee:

All the presumptions are in favor of the correctness of the proceedings, and to induce this court to reverse the decree, the error must be manifest on the record. 4 Md. Rep., 493, Exparte Shipley & wife. 6 Md. Rep., 347, Lowe vs. Lowe. Ibid., 359, Alexander vs. Macauley. It must appear, not only that there is manifest error, but this court must be satisfied, from an inspection of the record, that the appellant has rights involved which have not been properly regarded or disposed of by the decree, before he can successfully ask a reversal on this appeal. He has no right to complain of error that does not affect himself. 8 G. & J., 136 Calwell vs. Boyer. 6 Md. Rep., 397, Pratt vs. Johnson.

Upon the return of the attachment, the party being in contempt of court in not answering the bill, the proceeding to take the bill pro confesso was regular and legal, (Act of 1799, ch. 79.) The statements and recitals in the order limiting a day for the...