Zimmer v. Miller
| Decision Date | 20 November 1885 |
| Citation | 1 A. 858,64 Md. 296 |
| Parties | ZIMMER AND OTHERS v. MILLER. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Alleghany county.
Josiah H. Gordon, Robert H. Gordon, and A McClure Rouzer, for appellants.
Thos. E. Gouder and Wm. J. Read, for appellee.
The appellee, a creditor of Wilhelmina and John Zimmer instituted a suit in the circuit court for Allegany county, sitting in equity, for the purpose of obtaining a decree to annul and set aside a deed of conveyance of certain real estate made by them to Edward H. Hartung, an infant son of the said Wilhelmina by a former husband. The bill of complaint alleges that when said deed was executed, the grantors were largely indebted to the plaintiff; that they had no other property from which a fund might be derived for the liquidation of their indebtedness; and that the conveyance of said real estate was fraudulently made for a simulated and pretended consideration, and with an intent to hinder, delay, and defraud the plaintiff and other creditors in their efforts to accomplish the collection of their claims. The plaintiff's evidence discloses the following facts which appear upon the record without contradiction, as, antecedently to the passage of the decree, the defendants adduced no proof, but simply relied upon the negation presented by their answer, which is not supported by the verification of an affidavit: Wilhelmina and John Zimmer, together with one Christian Hartung, now deceased, executed a joint and several single bill for the payment of the sum of money claimed by the appellee. This indebtedness existed when the deed was executed, and has never been liquidated. When the real estate was thus conveyed, neither of the grantors owned any other property. After the conveyance they were still in possession, and do not now own any other property.
Anterior to the institution of these proceedings in equity, the other obligor died insolvent, and after the inception of this suit an action at law was commenced against the surviving obligors, and has resulted in the rendition of a judgment against the said Wilhelmina and her husband. It is further revealed by the evidence in the record that antecedently to the execution of the deed the plaintiff made application for the payment of the money due him, and was then told by Wilhelmina Zimmer that she intended to make a conveyance to her son Edward of the property now in controversy. This purpose was carried into effect by the deed executed on the twentieth day of December, 1881, but which was not recorded until the eleventh day of August, 1882.
Upon the presentation of these facts the learned judge in the circuit court passed a decree setting aside the deed as fraudulent, and directing a sale of the real estate described in the proceedings, for the purpose of providing a fund for the payment of the claims of the appellee and other creditors. Soon after the passage of this decree a petition was filed for a rehearing. On this application proceedings were had and testimony taken, and, after an argument by the solicitors of the respective parties, the court refused to reopen the case, and dismissed the petition. There has been an appeal taken from the decree, and also from the order dismissing the petition for a rehearing. It must be clearly apparent that there can be no recognition of the right of appeal from the order, and that an effort to bring the questions thus determined by the court below into this court for adjudication cannot be successful. There is, perhaps, no principle more firmly established by numerous decisions in this state than that there can be no appeal from the determination, by a court of equity, of questions addressed to its sound discretion. There is a perceptible analogy between an application...
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