Bouldin v. Bank of Commerce

Cochran, J., delivered the opinion of this Court: We are satisfied by an examination of this record, that the motions to dismiss these appeals must be overruled. The case of Lovejoy & Irelan, 17 Md. Rep., 525 , referred to as an authority in support of these motions, is distinguishable from the present case in a very important and controlling particular. It is not our purpose to review the doctrine there enunciated, nor do we intend to express any opinion as to its general propriety or consistency with the established course of Chancery proceedings; for a simple exposition of the facts upon which the case turned, will sufficiently answer the argument for applying the rule there adopted to the case before us. The appeal, there, was taken by Lovejoy from a decree vacating an alleged fraudulent deed executed to him by Heath, his co-defendant, and in considering the motion made by the complainant to dismiss the appeal, because of the non-joinder of the defendants, the court, assuming that the grantor was a necessary party on account of the fraud charged, and that the title was in him for the benefit of the creditors, held, that the decree should be treated as joint against both defendants, not only as to the costs, but also as to the relief granted.

The case presented by this record is predicated upon an entirely different state of fact. It is a creditor’s bill, seeking, without any averment of fraud, to subject the property of the debtor to sale for the payment of his debts, and so far as these appellants are concerned, there is not the slighest pretence of any fact or state of facts, upon which they can be divested of the property acquired and claimed by them, except that of alleged pre-existing liens of certain judgment creditors. The whole case between these appellants and the other parties com ⁴⁹ jdainant and defendant, looks to and turns upon the question of priority of the rights asserted, and in theory it neither seeks nor contemplates an adjudication that would revest their title in the grantor for the general benefit of Ms creditors. The relation of the several parties to these proceedings, as well as the relief sought by the bill, involves a concession of the fact, that the title and