Farrow v. Hayes

Miller, J., delivered the opinion of the Court. There are hut two questions presented by this appeal. The first is: Was there error in the refusal of the Court to admit the evidence set out in the record, which was offered for the purpose of sustaining, as against the appellees, the attaching creditors, the validity of the deed of the 24th of January, 1878, from O’Neal to the appellants. By that deed O’Neal conveyed certain property to the appellants in trust to sell the same, and out of the proceeds to pay releasing creditors, and the surplus, if any, to the grantor.

The. appellees were non-releasing creditors, and it was very properly admitted that as to them the deed as it stands is invalid. But the appellants offered evidence tending to prove that the deed was so executed by O’Neal, by inadvertence and mistake, that he intended and believed he was executing an assignment of all his property to' his creditors, non-releasing as well as releasing, before any surplus should enure to his benefit, and that the omission of a clause from the deed to that effect was occasioned by the mistake and inadvertence of the scrivener, and that the trustees as well'as O’Neal were ⁵⁰⁵ of the opinion and belief that the deed had been so executed according to the intention of the grantor until after the service of this attachment. We see no ground upon which this testimony can be admitted in an action at law. If it was offered for the purpose of showing that the intention of the grantor was different from that which the law imputes to the deed as it is written, it was clearly inadmissible, for it has been settled by this Court in a series of decisions that the intent must be gathered from the face of the instrument, and if the law declares such a deed void as against creditors, it matters not how the question of fraud in fact may stand.

Where a conveyance by its terms operates to hinder, delay, or defraud creditors the intent to do so is imputed to the parties and no evidence of intention can change that presumption. A different intent cannot be shown and made out by the reception of parol testimony nor deduced from surrounding circumstances. Trammel vs. Trieber, 3 Md., 11; Sangston vs. Gaither, Ibid., 40; Malcolm vs. Hodges, 8 Md., 418 ; Inloes vs. American Exchange Bank, 11 Md., 173 ; Barnitz vs. Rice, 14 Md., 24 ; Whedbee & Dickinson vs. Stewart & Price, 40 Md., 414 . It is equally clear that a mistake in a deed cannot be shown or availed of in an action at law, and it is wholly unnecessary to cite authorities in support of the position that it is not competent for a Court of law to reform this deed hy inserting into it the clauses which would make it valid, and which the appellants allege have been omitted from it by inadvertence and mistake.

The next question is: Was the Court right in refusing to grant the attachment on the facts and proof contained in the second exception ? It appears that the attachment which was under the Act of 1864, ch. 306, was issued on the 5th of March, 1878, and on that day, and before the writ was issued, one of the plaintiffs made the affidavit required by the Act before Mr. J. T. Matthews, the clerk ⁵⁰⁶ of the Court. The affidavit was written out by the plaintiffs’ counsel in due form, to be sworn to before the clerk, and as so written, concluded with the words “ clerk of the Circuit Court for Worcester County,” so that the clerk had nothing to do but administer the oath and place before these words his signature, or the words “ sworn before J. T. Matthews.” It was proved by the appellants themselves,