Campbell v. Lowe

Tuck, J., delivered the opinion of this court. We need not express an opinion upon the propriety of the court’s refusal to remand the commission, at the instance of the appellant; because, although we may be satisfied that the court could have done no otherwise than dismiss the bill of complainant, in the condition of the cause, as presented for final decree, (Harris vs. Harris, 6 G. & J., 111 ,) yet, if it appears that the case cannot be determined on its merits, or that the purposes of justice will be advanced by permitting further proceedings, it must be remanded under the act of 1832, ch. 306, sec. 6. Chaney vs. Tipton, 11 G. & J., 253 . Buchanan vs. Torrance, Ibid., 342.

The complainant, as we think, has established his claim, as tenant in common with the defendant, to an undivided moiety of the property in question, by a title paramount to the defence set up in her answer, conceding that defence to have been fully sustained by the evidence. The judgment under which he purchased William Lowe’s interest in the property was obtained before the deed from Reich and wife to his sister and himself, and fastened itself as a lien upon his interest, eo instanti his title accrued as tenant in common under that conveyance. To relieve herself from this view of the case, as presented by the documentary evidence, the appellee insists that the property was wholly hers at that time, because she purchased and paid for it, and that die deed was executed to her and her brother, under the impression, on their part, that it would operate as a security, by way of mortgage, for a loan which he had made to her. It is not pretended that the deed is not in the form in which the grantees designed it to be, but they insist, that they then supposed it would have the effect now ⁵⁰⁸ imputed to it; that is to say, an effect that the law, as we think, does not allow, Now, whatever a court of equity might be authorised to do with this instrument, if the defendant were seeking to have it reformed as against William Lowe, we must deal with it as a case involving the rights of strangers to the transaction, and, in that aspect of the case, we are relieved from the necessity of passing upon the testimony offered to explain what the deed was intended to be.

The defendant cannot, in a controversy with strangers, insist that the deed does not express what it was designed to express. She must abide by its construction and legal effect. Henderson vs. Mayhew, 2 Gill, 409. Alderson vs. Ames, 6 Md. Rep., 52.

Anderson vs. Tydings, 8 Md. Rep., 427 , 1 Peters, 1 . The appellant, at a judicial sale, purchased the interest of William Lowe in this property, in reliance, as we must suppose, upon Reich’s deed to him and his sister. He was substituted, by law, to the rights of the judgment creditor, under whose execution he made the purchase, (Spindler vs. Atkinson, 3 Md. Rep., 423 ,) and cannot be affected by the disclaimer of title made by William Lowe, or by the deed from him to his sister, executed after the judgment became a lien on the property. 8 Md. Rep., 427 . If the deed could be reformed, as between the defendant and William Lowe, or made to operate differently from the legal import of its terms, to the prejudice of this appellant, by the introduction of matters in pais, cotemporaneous with or subsequent to the excution of the instrument, our registry acts would afford little protection to purchasers.

The defendant denies the title of the complainant to any interest in the property. Generally, in such cases, the practice is to retain the bill until the right can be tried at law. Boone vs. Boone, 3 Md. Ch. Dec., 497.

Wilkin vs. Wilkin, 1 Johns. Ch. Rep., 111 ; as in cases of dower. Wells vs. Beall, 2 G. & J., 468.

But, as the point is to be determined, in this case, upon principles of equity — -the complainant having shown a legal title, and the defendant relying upon a defence cognizable only in a court of equity — if the court in which the partition is sought, does not entertain the question of title, the defendant would be deprived of the benefit of her defence alto ⁵⁰⁹ gether, for none such as that here relied on, could be made at law, even if the case were between the parties to the deed, and did not affect a stranger. Cartwright vs. Pultney, 2 Atk., 380. The remaining question is, whether the case can be remanded under the act of 1832, ch. 302, sec. 6. The argument on the part of the appellee is, that inasmuch as there is no evidence that a sale would be advantageous to the parties, and as the bill cannot be amended, so as to demand partition, or a sale, there is nothing by which the court can ascertain that the substantial merits of the case will not be determined by affirming the decree.

If, as we have said, the complainant has established his claim to an undivided interest as tenant in common with the defendant, he is entitled to enjoyment of that interest, either by partition, (2 Ambl. 236, Parker vs. Gerard; 1 Story’s Fq., sec. 653,) or by a sale and division of the proceeds under our acts of Assembly. Corse vs. Polk, 1 Bland, 233 . 2 White & Tudor, 329. He has presented his case in the latter aspect, alleging that the property cannot be divided, and that it would be for the advantage of the parties to have the same sold for a division, and this