Cunningham v. Dwyer

Bowie, C. J., delivered the opinion of this Court: The appellee, claiming as a creditor of the appellant, Thomas A. Cunningham, filed his bill on the equity side of the Circuit Court for Baltimore city, against him and others, praying certain conveyances therein referred to may be declared null and void, and for other relief, not materia] to be considered in this appeal. ²²⁸ •The deeds assailed are dated the 14th .of September 1855, .and purport to he made in consideration of the sum of fiye .dollars, paid by the grantee, yyh.Q yas thp mother of the grantor, It is alleged, that before and at the time of the execution of these instruments, the grantor was insolyent, and largely indebted to the complainant and others, by whom he was .sued, and these were executed fraudulently and \yithout consideration, for the purpose .of hindering, delaying and .defrauding the creditors pf the appellant, Thomas A. Cunningham. The grantee, Abigail Cunningham, died in the year 1851, Letters testnmpntary yyere granted to her son, Thomas, who jyas appointed her executor by her will, dated the 9th o'f July 1,855, by yrhich the premises conyeyed to her, by the .deeds in question, passed, under a residuary .clause, to h,er .daughters, Spsan ⅜.'Cunningham and Abbie .E. Wright, po-defendants and appellants. The answers of the appellant defendants put ip issue all the allegations affecting the validity of the deeds, Thve controlling question in the .consideration of this appeal, is the prima, facie legal character of the deeds, which are assailed for fraud. IJpon this, the materiality of the .questions relating to the admissibility and effect of the testimony, essentially .depends; if the deeds were made for an adequate valuable consideration, it is immaterial whether the grantor was indebted or not, at th.e time of th,eir execution, The learned Judge yyho decided this case below, places this ppipt prominently in the foreground of his opinion thus : “These deeds, haying been executed by the defendant to his ■mother, for the consideration of fiye dollars only, must he treated as made for the consideration of loye and affection, and, fqr that reason, as purely voluntary, and therefore the .evidence adduced by the defendants for the purpose of proving these ¡deeds were rnade for an adequate pecuniary consideration, if it came from competent witnesses, could not he regarded, because ⅛ ⅛ offered to vary the consideration ²²⁹ set forth in the deeds.” “Since the decision by the late Chancellor, in the case ,of Baxter vs. Sewell, 2 Md. Ch, Dec., 447, whose decree in that case was affirmed, and the opinion as delivered by him adopted by the Court of Appeals, in 3 Md, Hep., 334, the law must be considered as settled in thisjState upon this question.” Before it could be determined whether an additional consideration could be proved, it was necessary to decide the character of the consideration expressed, At that stage of the inquiry, it was not a question of adequacy or inadequacy, as a badge of fraud, or whether the parties - to the deed were mother and son; although they stood in that relation to each other, they might also have been debtor and creditor, or bargainor and bargainee.

The admissibility of evidence must be determined before its weight is considered. The general principle of the common law, sanctioned by the Statute of Frauds, is, th#t it is not competent to contradict, alter or vary a written instrument by parol proof, but before this can be applied, it must be ascertained what is the character of the written instrument it is proposed by the evidence to affect. The learned Judge, in adopting bis conclusion, did not advert to the distinction between the amount of the consideration, as a fact, which being grossly inadequate, if established, would be evidence of fraud, and the kind of consideration, which would determine whether the instrument belonged to the class of deeds known as “bargains and sales,” or “covenants to stand seized-to uses.” Considered merely as a fact, the amount would be evidence of fraud, but considered as a pecuniary consideration, it established the character of the deed as belonging to a class which would be preferred to volunteers, and the amount not being conclusive on the grantee or those claiming under her, it was, as we shall proceed to shew, from a review of the several cases on which Baxter vs. Sewell was based, competent to prove a larger consideration of the same kind. After referring to a series of Maryland cases, to establish his position in Baxter vs. Sewell, concluding with Cole, ²³⁰ Trustee, vs. Albers & Runge, the Chancellor adds; Ci In the last case, the doctrine of the inadmissibility of parol proof of a different consideration from that stated-in the instrument, was fully maintained, though it was allowed to the party, in that case, to offer evidence of the same kind of consideration, varying only in amount from that expressed.” Baxter vs. Sewell, 2 Md. Ch.

Dec., 455. It is thus apparent no new.rule was designed to be laid down, either by the Chancellor or the Court of Appeals, which affirmed his decree, upon the authorities cited by him. The case thus referred to and adopted by the Chancellor, itsshould be remembered, was the last in order of time of the decisions referred to, and made after great deliberation, with all the preceding cases in view. It may, therefore, be regarded as a leading case on the subject.

Speaking of the bill of sale, AeohbR, J., who delivered the opinion in Cole’s case, said: “The instrument would, in contemplation of law, be a deed of bargain and sale, standing on the consideration proved, in the same way as it would be if standing on the consideration expressed in the deed.” In the case of Betts vs. The Union Banle, the evidence could not be received, because by