Citizens Fire, Marine & Life Insurance Co. v. Wallis

Bartol, J., delivered the opinion of this Court: This appeal was taken from the judgment of the Superior Court, rendered upon an agreed statement of facts. On this statement, two objections are presented to the appellant’s right to recover: 1st. The deed of trust- made by the defendants Gfittings and Allnutt. 2nd. The prior attachment issued on the judgment of E. K. Howard, and laid in the hands of the garnishees. 1st.

As to the deed of trust. Since the decision of-the cases of Malcolm vs. Hodges, 8 Md. Rep., 427 ; Rosenberg vs. Moore, 11 Md. Rep., 376 ; Barnitz vs. Rice, 14 Md. Rep., 24 ; and Bridges vs. Hindes, 16 Md. Rep., 101 , the law may be considered as settled in Maryland, that a deed of trust, like the one before us, is void. To be free from the imputation of fraud under the statute of Elizabeth, such deeds must, on their face, convey all the property of the debtors, as well their individual estate as their partnership effects. This deed of trust professes only to convey the property held by G-ittings and Allnutt, jointly as partners, without including their individual property.

It is therefore inoperative and void, and presents no obstacle to the recovery by the .appellant. 2nd. We have next to consider the effect of the attachment issued upon Howard’s judgment. This being prior to the appellant’s attachment, and it being admitted to be for a larger sum than the garnishees have in hand, must defeat the appellant’s attachment, unless, for some reason, it be inoperative and void ¹⁸³ The judgment of Howard was confessed for $8,000, and simultaneously entered for the use of certain parties, creditors of Grittings and Allnut. In the statement of facts, it was agreed that Howard was not personally, and in his own right, a creditor of Grittings and Allmitt, hut was the agent and attorney duly authorised, of the parties, for whose use his suit was entered, and that he sued and recovered judgment, and issued his attachment, for the use and "benefit of said parties only, his name being used for convenience. ” By this we understand, that Howard was legally constituted as agent, to take the judgment in this form.

These parties had executed releases in conformity