Abramson v. Horner

²³⁴ Pattison, J., delivered the opinion of the Court. The appellant in this case, being the holder of a judgment recovered against Albert N. Horner, one of the appellees,' for the sum of three thousand two hundred eighty-three dollars and sixty-six cents ($3,283.66), filed in the Circuit Court for Baltimore County, sitting in equity; his bill against the appellees, Albert N. Horner and Harry C. Fox, praying therein that a deed from Jennie B. Hieatzman and husband to Harry C. Fox, one of the appellees, dated the 29th day of November, 1907, and filed with the bill as an exhibit, be set aside and declared void and the lands described therein he sold for the payment of the indebtedness aforesaid. The bill alleges that the lands mentioned in the deed are the property of Albert N. Homer and that Fox has no interest whatever in them, and that the conveyance of them to Fox by Mrs. Hieatzman and husband was merely a scheme on the part of Homer to hinder delay and defraud his creditors, particularly the appellant. That Albert N. Horner has no property standing in his name, so far as the appellant has been able to discover after diligent research, from which the payment of the.indebtedness aforesaid can be realized.

That the claim upon which the judgment was recovered existed for a long time before the above mentioned conveyance of the lands. Horner, in his answer, alleges that he hasyio “personal or specific knowledge” of the recovery of the judgment against him or of the conveyance of his sister, Mrs. Hieatzman, ánd husband to Fox, or of the interest of Fox in said lands, and therefore could neither admit nor deny the allegations of the bill in relation thereto. He denied that said lands belonged to him or that they had ever belonged to him, and further denied that the conveyance of the land to Fox was a scheme on his part to hinder, delay or defraud his creditors or any of them. He also denied that the claim upon which the judgment was recovered had existed for a long time prior to the conveyance aforesaid, and alleged that he had been ²³⁵ able at all times and. was at the time of the filing of the bill able to pay all claims against him.

Fox in his deposition, taken under sections 17 and 18, Article 35 of the Code of 1904, stated that he was a resident of Waynesboro, Pennsylvania, and was at that time sixty-four years of age and a machinist by trade. That his wife was Homer’s cousin, and that he was in Baltimore on the occasion of the execution of the deed from Mrs. Hieatzman and husband to him; that he went there at the request of Horner and is the party to whom Mrs. Hieatzman and husband conveyed the lands; and is the person who thereafter executed a mortgage thereon to Joseph R. Gunther. He testified that he did not pay anything for the lands, but was acting for Mr. Horner and had “no further interest than to oblige Mr. Horner.” He could not recall whether he had, after executing the mortgage, executed a deed with the name of the grantee left blank, but when asked if the title to the lands still remained in him, he said “It does not”; he did not know, however, when he conveyed it, but it had been conveyed and this was done at the request of Mr. Homer. He could not recall whether he had executed a second mortgage on the property.

He stated that he had repeatedly acted for Mr. Homer as grantee and mortgagor in relation to various properties in Baltimore and elsewhere when he had no interest in the" same, “except expenses and anything that was given me for my trouble.” That in the last two years prior to his testifying he had executed for Mr. Homer many deeds and mortgages relating to property in which he had no interest. Joseph B. Sauter, the former owner of the lands, testified that he sold them for seven thousand dollars, of which the sum of forty-eight hundred dollars was paid by the certified check of Albert 1ST. Homer delivered to him by one J. Wesley Evans, through whom the sale had been effected, and the balance thereof, the sum of twenty-two hundred dollars, was in a mortgage, resting upon the lands, held by one Reinhold. When the deed therefor was to be executed he was asked to ²³⁶ convey the property to Mrs. Hieatzman, which he dicl.

He never knew or heard why he should have been asked to do so. This deed from Sauter to Mrs. Hieatzman was executed on the 26th day of July, 1907. John Timanus testified that he acted for both Sauter and Evans, as well as for Mr. and Mrs. Reinhold, the mortgagees-, in the sale and conveyance of said lands by Sauter. He prepared the deed to Mrs. Hieatzman, as directed by Evans.

He did not know why Horner’s check was used in part payment of the purchase money, but as the check was certified that did not bother him. Timanus also testified that he was one of the counsel for Horner in this case, although it does not so appear upon the record. Joseph R. Gunther, an attorney of Baltimore City, testified that he was applied to by Evans in 1907 for a loan upon these lands. Evans, when he first applied, did not say for whom the application was made, hut later, when asked who would execute the mortgage, he stated that he was making application for Albert N. Homer and produced- the deed from Sauter to Mrá.

Hieatzman, as well as other title papers. Evans stated, however, that the mortgage would be executed by Mrs. Hieatzman, that Mrs. Hieatzman was a sister of Mrs. Horner and “was holding the title as a matter of convenience for Mr. Horner.” Gunther said he was afterwards told that Mr. and Mrs. Hieatzman had declined to sign the mortgage and that it would be executed by Fox. Mr. Gunther then prepared the deed to be executed by Mr-, and Mrs. Hieatzman to Fox, as well as a mortgage from Fox to him as trustee. On the occasion of the delivery of the deed and mortgage and payment over of the consideration thereof, Horner, Evans and Fox were all present.

The new mortgage- was for twenty-six hundred dollars. After applying so much thereof as was necessary to the payment of the old mortgage with accrued interest and certain expenses that had been incurred by the filling of the mortgage for foreclosure, there was left of the consideration the sum of one dollar and ninety-six cents. This was paid by check drawn ²³⁷ to the order of Eox and handed him, which was at once endorsed by him and delivered to Horner. He further testified that in the title papers handed him by Evans, there was a deed executed by Jennie B. Hieatzman and husband of the same date as the deed from Sauter to Mrs. Hieatzman.

In this deed the name of the grantee was left blank. Evans explained why this was done by saying “It was executed in that shape so that Mr. Horner could insert the names of such persons as he saw fit.” Eox executed the mortgage and signed the notes upon being told to do' so by Mr. Horner. Robert Biggs, counsel for the appellant, in whose hands the claim had been placed for collection, made careful investigation, of the land records to discover any property standing in the name of Homer, but found none, nor was he able to locate any personal property belonging to Horner. He found upon the records debts owing by Horner amounting to at least five thousand dollars'in addition to the judgment of Moms Abramson.

John Wesley Evans, who, as testified to by him, was an examiner of mines, made an examination of the lands in dispute to ascertain whether or not they contained1 asbestos and found the property, as he thought, worthy of development and secured from the owner, Sauter, an option to purchase it. Not having the money himself with which to exercise this option and to purchase the land he called upon Mr. Horner to borrow it, but was told by him that he had no money, but could get it from his sister, Mrs. Hieatzman. The amount required was five thousand dollars in addition to the mortgage resting upon the land. Horner gave Evans his individual check for five thousand dollars, which was delivered by him to Sauter in part payment of the purchase money for the farm, and at his reqiiest the deed was executed to Mrs. Hieatzman.

That he had no personal knowledge as to whose money it was, more than what was told him by Homer. That in the purchase of this land it was agreed, as he said, between Horner and himself that in the event of a sale thereof he was to have one-half of the amount ²³⁸ received therefrom over and above the amount paid to Sauter therefor, and as he understood it, Mrs. Hieatzman was to have the other half, although he had no conversation with Mrs. Hieatzman previous to the conveyance to her. That he had never met Eox until he'came to Baltimore to execute the mortgage; that his name was- first mentioned to him by Homer. He admitted that he had applied to Mr. Gunther for the loan in the name of Mr. Horner, and further stated that the interest accruing on the mortgage while held by Mr. Gunther was paid by him to Mr. Gunther with nioney furnished him by Mr. Homer.

Horner testified that the money with which the land was purchased was the money of his sister, Mrs. Hieatzman. That he furnished this money in order to make some money out of it for his sister, as well as to protect Evans. That later the parties holding the mortgage upon the lands were about to foreclose it and it became necessary to place a new mortgage upon the property in order to raise the amount with which to pay off the old one. That he did not like to ask his sister to ask her husband to join in a mortgage for her benefit when her husband had no mortgage on his own property.

It was for this reason that the land was conveyed to Fox in order that he might execute the mortgage. Accordingly, he sent for Fox, a widower, and had him come down from Pennsylvania and make the mortgage. The old mortgage was paid off and Eox immediately re-conveyed the property to Mrs. Hieatzman. This last named deed, dated November 29th, 1907, and acknowledged December 5th, 1907, was not at that time placed upon record, nor was it recorded at the time Horner was testifying.

He stated that the reason for not placing it upon record was that it was good between the parties and “not being an absolute necessity, I did not think it worth while to do so, and when- the suit was commenced I couldn’t.” It was, however, subsequently on the 15th day of May, 1909, recorded and was placed in evidence while the appellee was still upon the stand as a witness. Fpon cross-examination, he stated why it was not placed ²³⁹ upon record was because “We wanted money to put up tbe place and we might want to put another lien on it for that purpose”. By “we”, he stated, he meant Evans and himself. He admitted giving his individual check, but stated that it was money of his sister, Mrs. Hieatzman, money that he had borrowed on her collateral.

He denied the existence of the deed executed by Mrs. Hieatzman and husband with the grantee’s name omitted thei*efrom, as testified to by Mi*. Gunther. He further testified that he has always been able and is now able to pay all proper claims against him if he could collect what is due him. When asked what claims were due him, he named quite a number of long-standing claims which he had attempted to collect, but had been unsuccessful in so doing, and when pressed to do so, could not name any other assets belonging to him.

He could not recall any mortgage executed by Eox after the execution of the Gunther mortgage, and did not think Eox would execute such mortgage unless so directed by him. When asked, he said the check given in payment of the farm was drawn, he thought, upon “The Fidelity”, and that the collateral upon which the money was borrowed was the bonds of the Oondon-Lane Boon Lumber Company, which his sister had gotten from her father’s estate, of which he was executor. That although his father died in 1883, the estate has never been settled; that he has never filed an inventory and that nothing will appear of record showing the ownership of this stock in his sister. His attention was then called to an attachment proceeding instituted in the Court of West Virginia in which the stock of one Condon was attached by Lipscomb, wherein Horner intervened by petition so late as 1898, claiming the stock as attached in the name of Condon to ho his property.

The case, however, was decided adversely to his claim, and on appeal to the Supreme Court of West Virginia the lower Court was affirmed. Horner could not recall any of these facts, although the petition, parts of the answer and the opinion of the higher Court were read to him. When asked if the hypotheacated bonds were not the bonds obtained by ²⁴⁰ him in exchange for twelve hundred and fifty shares of preferred stock, he replied: “They were in the deal”. In his testimony given in June, 1909, Horner stated that the mortgage given- by Eox to Gunther had recently been paid off.

The record discloses that this mortgage when paid off was assigned to the counsel of the appellee in this case, Timanus, as attorney, and thereupon filed by him for foreclosure and the property advertised to be sold thereunder on the first day of March, 1909. Whereupon an injunction was issued upon the application of the appellant enjoining the sale of the property under said proceedings. When upon the stand Horner was asked: “Who furnished the money to pay off the Gunther mortgage ? A. Ask Mr. Timanus that question, that is his business.

Q. I prefer to ask you. A. I decline to answer Mr. Timanus’ question. Q. Did you not give the money to Mr. Timanus ? A. I did not.

Q. Do you mean to say that you do not know where Mr. Timanus got the money? A. I mean to say that I did not give him that money. Q. I ask a direct answer to my question; do you mean to say you do not know where Mr. Timanus got the money? A. I mean to say that I did not give him the money, what I got from Mr. Timanus is hearsay.

Q. I ask you again to say whether or not you do not know where- Mr. Timanus got the money? A. I decline to answer. Q. Did you co-operate with Mr. Timanus in getting the money? A. I did.

Q. Where did you get it? A. Erom my sister’s money.” That it was money in his, Horner’s hands coming from the settlement of some business transaction in which she was interested in Virginia. On re-examination, however, he stated that it was the estate’s money. In response to a notice served upon him to produce the books showing the transactions between -him and his sister during the years 1896, 7, 8 and 9, he replied by saying that he never, kept a cash book, ledger or any kind of books at all.

When asked of what the estate of his father consisted at the time of this death, he stated that it was utterly impossible for him to ²⁴¹ recollect, that all papers and memoranda were burned in the fire of 1904. Mrs. Hieatzman, sworn on behalf of her brother, the appellee, testified that she resided in the City of Baltimore, was a sister of the appellee, did not know whether she knew Eox or not. When asked to state whose money it was that went into the purchase of the Sauter property, replied by saying Mr. Horner told-her that he had bought the farm for her, that he had bought it with her money. This was a few days or a week after the purchase had been made.

When asked from what source the money came she said: “Money from an undivided estate, as I understand it; it was no money that I had given Mr. Horner.” The estate to which she referred was the estate of her father. That her brother, the appellee, managed the money belonging to her and made, investments- for her from time to time without consulting her, telling her of it afterwards. That she conveyed the property to Mr. Eox in order that a mortgage might be placed thereon, as she would not ask Mr. Hieatzman, her husband, to join in the execution of a mortgage, he not having any mortgage on his own property. She could not say that she-did or did not understand the transaction at the time, but she would have been satisfied whether she did or not.

George L. Mahler, a witness produced by the appellee, testified that he was employed at the Eidelity and Trust Company and had charge of all the loans, collaterals, etc., securities, and when informed that Mr. Horner had testified that he had borrowed