Bruce v. Leveringe

Cochran, J., delivered the opinion of this Court : The facts, upon which the questions in this case depend, are these: An execution, issued on a judgment obtained by Levering, one of the appellees, against Daniel C. Bruce, was levied on certain chattels and household stuff previously conveyed or mortgaged by him to the appellants, who thereupon filed their bill, and obtained an injunction restraining Levering from selling this property under his execution. Levering answered this bill, denying that the appellants had shown a proper case for an injunction, and insisting that he was entitled to a sale of the property, without, however/alleging that his debtor had no other assets, or that the property levied on was more than sufficient to satisfy the appellant’s just claims; and then prayed the Court to decree a sale, and dissolve the injunction. This response to the bill was followed by a motion to dissolve, and an agreement, that certain exhibits, filed by the appellants, to show the consideration for which the conveyance from Bruce to them was executed, should be read in evidence upon the hearing thereof,but not at the final hearing, except proved in the regular way. ’ ’ This motion appears ²⁹² to have been neither heard nor disposed of until it was overruled by the final decree continuing the injunction. The depositions of Daniel 0.

Bruce, William M. Woods, and John H. Lloyd, were also taken under another agreement, that they should he read upon the final hearing “as if regularly taken under a commission, and with the same effect, and subject to like exceptions.” Other depositions •were taken and filed by the appellants, but, for reasons apparent upon the face of the record, we shall exclude them from consideration in disposing of the appeal. Upon these proceedings and evidence, the decree, continuing the injunction, and appointing a trustee to sell the property in question, was passed; and, in reviewing that decree, we must bear in mind that the proceedings, although instituted by the appellants, to prevent the appellee from selling under his execution, was, nevertheless, so far modified by his prayer for a decree to sell, and the evidence subsequently offered, as to take the character of proceedings commenced by himself for that purpose. The complainants below, notwithstanding the decree affords the specific relief sought by the bill, took this appeal upon the alleged ground, that the proceedings and proof were not sufficient to authorise the Gourt to decree a sale; and we shall therefore review the evidence, as well as the answer of the appellee, for the purpose of ascertaining whether such a case was presented as will sustain the decree. We may concede, without however so deciding, that the conveyance from Bruce to the appellants was intended to operate as a mortgage.

This accords with the theory of the appellee, and will afford him the relief sought by his prayer for a decree to sell, if ■his case, in other material particulars, is sufficiently made out by proper averments and proof. It was agreed that certain exhibits should be read in evidence upon the motion to dissolve, and that motion, as we have already stated, was still pending at the time of the final hearing. Whether these exhibits were evidence which the Court could consider when the case was finally heard, need not now be decided, ²⁹³ as the evidence, taken under the second agreement, is sufficient for our present purpose. By the last agreement, the depositions of Bruce, Woods and Lloyd, were to he read in evidence at the final hearing, with the same effect as if regularly taken under a commission; and we find by inspection, that Bruce was first examined by the appellee, in regard to one of the exhibits filed under the first agreement, as evidence to he read on the motion to dissolve.

In the course of this examination, he proved that the paper marked K, a part of the exhibit referred to, purporting to he a copy of’ his account as guardian of Kate Bruce, duly certified by the Register of Wills for Allegany county, was a correct statement of the amount due from him to his ward; and, upon examination by the appellants, that the same amount was due to Helen from him upon a like account, making an aggregate debt due from him to them of $1,066.82; that he had paid no part of the sum thus shown to he due, and that he executed this mortgage to secure its payment to them. It will be seen, from this review of Bruce’s testimony, that a paper filed under the first agreement, but not admissible as evidence at the final hearing, was called for by the appellee. It is true that this witness was examined upon what is stated to be cross-interrogatories, but as they were in reference to a paper not then offered by the appellants, and, by the first agreement, not admissible in evidence at the final hearing, we must treat him as a witness produced by the appellee, and as one to whose competency he was not afterwards at liberty to object. Woods and Lloyd were both competent witnesses, and, although their testimony was excepted to with that of