Ward v. Hollins

• Decision Date: 15 July 1859
• Citation: Ward v. Hollins, 14 Md. 158 (Md. 1859)
• Parties: ELIZA WARD and ELIZABETH A. R. WARD v. GEORGE HOLLINS and Others.
• Court: Maryland Court of Appeals

14 Md. 158

ELIZA WARD and ELIZABETH A. R. WARD v. GEORGE HOLLINS and Others.

Court of Appeals of Maryland.

July 15, 1859

Appeal from the Circuit Court for Baltimore City.

The decree from which this appeal was taken, and the proceedings in reference to the appeal, are fully stated in the opinion of this court. The other facts necessary to be stated are briefly these:

The appellant, Eliza Ward, with others, on the 15th of February 1851, mortgaged certain real estate, in the city of Baltimore, to F. A. Sumner to secure the payment of $5000 the said Eliza being the owner of one undivided third thereof. This third, subject to the above mortgage, she conveyed to her daughter, Elizabeth A. R. Ward, for the consideration of five dollars, by deed dated the 1st of August 1851, reserving however a life-estate to herself. The mortgage debt not being paid, a decree for a sale of the property, to pay the same, was passed on the 25th of February 1852, and in July 1853, William G. Thomas having become the owner of the mortgage and decree, an agreement was entered into between him and the other parties interested in the property, including the appellants, by which, in order to perfect the title to the property and to satisfy Thomas the amount due him under the decree, and to obtain title deeds in severalty for their respective portions, free from the lien of the mortgage and decree, the parties agreed that Thomas should become the purchaser thereof, and as soon as he obtained a deed therefor from the trustee, to execute to the said Eliza Ward a deed in fee for a portion of said property particularly described, which should be taken and accepted by the said Eliza Ward and Elizabeth A. R. Ward, her daughter in full satisfaction of all their interest and claim in and to the entire property, or the proceeds thereof. Thomas became the purchaser, and the sale having been ratified, and a deed executed to him by the trustee, he, on the 28th of September 1854, executed to Elizabeth A. R. Ward, for the consideration of five dollars, a deed conveying to her that portion of the property mentioned in the above agreement. This latter deed is the one which, by the decree appealed from in this case, was declared null and void as against the appellees, the creditors of Eliza Ward, upon a creditor's bill filed by them on the 8th of October 1855. The allegations of this bill, and the answers and the proof in the case, are sufficiently indicated in the opinion of this court and the arguments of counsel.

The cause was argued before LeGRAND, C. J., TUCK and BARTOL, JJ.

Edw. Holloway and Jas. Malcolm, for the appellants, argued:

1st. That the deed of 1851 was made in good faith, and cannot be impeached by subsequent creditors, and that the agreement of 1853 did not alter the rights of the parties thereto, there being a mistake in reference to whom the deed of 1854 was to be made; that the execution, by Thomas, of the deed of 1854, to Elizabeth, was right and proper, and there is no fraud or mala fides shown on her part; that it is incumbent on the appellees to show debts existing anterior to the deed of 1851, or to show fraud in fact, and having failed to show either, the decree is erroneous, and the deed of 1854 should not have been set aside and declared a nullity. Banks v Williams, 11 Md. 198.

2nd. That the deed of 1851, having been duly acknowledged and recorded, was legal notice to the appellees that the title was in Elizabeth, except as to the life-estate of Eliza, and the title was in the former down to 1854, when the new deed from Thomas was made; that there is no evidence to show that any representations were made, such as are alleged in the bill and attempted to be proved; and that the appellees had notice, and, having notice, have no equities that will entitle them to set these deeds aside. 11 Md. 198.

3rd. That the entry of a prayer for an appeal made by the defendants, on the 26th of April, 1856, by act and operation of law, vested jurisdiction in this court, and that this right of appeal could not be waived or taken away by any agreement subsequently made by the solicitors for the parties, it not appearing in the cause that the solicitor for the defendant had ever received a new warrant to waive the appeal already taken. But if the solicitors, by virtue of their office, have such power, that then the agreement of the 28th of April, 1856, is void for want of consideration, and if not void for want of consideration, then it is waived by the agreement filed on the 1st of July, 1856. The appellants also contend, that this last mentioned agreement is void and inoperative in law, because the solicitors, as such, had no authority to change or alter the terms of the decree by agreeing that the sale shall be made after ten days' notice. Act of 1826, ch. 200. 2 Inst. 368, 1 Salk. 89. Herd v. Burstowe, Cro. Eliz. 177. Tipping v. Johnson, 2 Bos. & Pull. 357. Atwood v. Burr, 2 Ld. Ray. 1252. Swinfen v. Swinfen, 87 Eng. C. L. 364. Farmers' Bank v. Mackall, 3 Gill 447. Doub v. Barnes, 4 Gill 20. Holker v. Parker, 7 Cranch 436. Gonnigal v. Smith, 6 John. 108. Jackson v. Bartlett, 8 John. 361. Kellogg v. Gilbert, 10 John. 220. Howe v. Lawrence, 2 Zabriskie 99. Lambert v. Sandford, 2 Blackford, 137. Richardson v. Talbot, 2 Bibb 382. Holbert v. Montgomery, 5 Dana 11. Garvin v. Lowry, 7 Sm. & Mar. 24.

4th. That in reviewing the decree its correctness must be determined by the state of the case at the time it was passed, and this court cannot look to any thing subsequently thereto appearing in the record. Johnson v. Thomas, 6 Md. 452.

5th. That the decree is erroneous in declaring the deed of 1854 to be utterly null and void, because such declaration is against the allegations and prayer of the bill, the prayer of the bill being, " that the said deed of 1854 may be decreed to be for the use of Eliza Ward, and that Elizabeth A. R. Ward may be decreed to stand seized of the ground mentioned in said deed to the use of the said Eliza Ward." The decree is also erroneous in decreeing the sale of the estate described in the deed, for if the deed be in fraud of creditors, and therefore null and void, there was no title before the court below, the title remaining in Thomas, who is not a party to the suit; and that if Thomas be a necessary party this court will remand the cause for further proceedings. Act of 1832, ch. 302. Ringgold v. Ringgold, 1 H. & G. 11. Buchanan v. Deshon, Ib. 293. Hayward v. Carroll, 4 H. & J. 518. Evans v. Iglehart, 6 G. & J. 171. Boteler v. Brookes, 7 G. & J. 143. Calwell v. Boyer, 8 G. & J. 136. Clagett v. Hall, 9 G. & J. 80. Warnick v. Michael, 11 G. & J. 153. Tolson v. Tolson, 8 Gill 391. Thomas v. Doub, 1 Md. 325. Jamison v. Chestnut, 8 Md. 34.

P. McLaughlin and Chas. H. Pitts, for the appellees.

1st. This appeal should be dismissed, because the taking of it was in violation of the agreement of the 28th of April, 1856 made by the solicitors of the respective parties, for a valuable consideration, filed in the case and now a part of the record. It is said by the appellants, that they are not bound by such an agreement, and that it is such as the solicitor, by virtue of his general power, could not have made. We submit that the reverse of this proposition is law. When the appearance of a solicitor is entered on the record, it is presumed to be done by the party for whom he appears, and whatever is done by the solicitor, in the progress of the cause, is considered as done by the party and is binding on him. Henck v. Todhunter, 7 H. & J. 275. Bethel Church v. Carmack, 2 Md.Ch. 143. Thornburg v. Macauley, Ib. 425. It has been doubted, whether an attorney may make a compromise, though he may submit a matter to arbitration, yet, if the compromise be bona fide and works no considerable hardship, the courts will be slow to disturb it, and will refuse to do so when it has been acquiesced in with a full knowledge of the facts. White v. Davidson, 8 Md. 169. An attorney for a foreign creditor, may unite in recommending an insolvent trustee, and the client will be bound by such act, though his claim is thereby submitted to the operation of our insolvent laws and discharged. Jones v. Horsey, 4 Md. 306. A reference by an attorney, though expressly forbidden by the client, is binding. Filmer v. Delber, 3 Taunt. 485. Where the plaintiff's attorney had entered judgment, for want of the defendant's joining issue, but afterwards consented to accept the joinder, the court, on motion, compelled him to accept, though the plea tendered was limitations. 1 Salk. An agreement by the defendant's attorney to reinstate a cause in which a non pros. had been entered, is within his power and binding on his client. Einholdt v. Alberti, 1 Binney 469. An agreement by the attorneys, that a case shall stand continued, that the plaintiff would abandon the first and last articles in his account, and that the defendant would waive objections to notice served on him, is binding and will be enforced, unless there be fraud, mistake or surprise. Alton v. Gilmanton, 2 N.H. 520. An agreement to execute the property of the maker of a promissory note, by which the endorser would be discharged, is binding on the client. Bank v. Geary, 5 Pet. 99. An attorney has power to enter into an agreement to confess judgment. Farmers' Bank v. Sprigg, 11 Md. 389. If an attorney, by virtue of his general powers, may do all these things, has he not power to withdraw an appeal and agree that an appeal shall not again be taken from a decree? But further, it has been decided, that from a decree, made by consent of counsel, no appeal lies, and such decrees are common in Maryland. Williams v. Williams, 7 Gill 302. If parties have agreed not to take a writ of error, or to apply for an injunction, they will be...