First National Bank v. Eccleston

Alvey and Robinson, J., dissented, and the former delivered the following opinion : With my convictions in regard to the merits of this case,, I cannot do otherwise than dissent from the opinion of the majority of the Court, affirming the decree of the Court below. This case, like many others of recent occurrence of a kindred character, is sought to be brought within the principle of the case of The Central Bank of Frederick vs. Copeland, 18 Md., 305 ; but I think the requirements of the present case carry the principle of the supposed precedent to a most dangerous extent. In the first place, I think it clear that the appellee is not a competent witness. Apart from the matter of inter-est, she would not be a competent witness at the common law, upon principles of public policy.

The evidence Act of 1864, ch. 109, sec. 1, only removed the previous incom ¹⁶⁴ petency by reason, 1st, of interest in the subject-matter, and, 2nd, of previous conviction for crime. But by the 2nd section of the Act, as re-enacted by the Act of 18Y6, ch. 222, “ ivJien an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit or other proceeding, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer, or upon the call of his co-plaintiff or co-defendant otherwise than now by law allowed, unless a nominal pai’ty merely.” Here, the husband, the party with whom and for whom the wife is said to have contracted, is dead. The whole subject of controversy in this case is in regard to the contract between the husband and wife, whereby the latter was induced by the alleged persuasions, and threatening conduct, of the husband, to pledge and convey her property for the security of his debt; and there is no pretence that she was influenced by any other person ; and if the husband were living, it is clear, he would be a necessary party to these proceedings. It would, therefore, seem .to be plainly a case of exclusion within the terms of the statute.

But, apart from all question of interest, is she not incompetent for a reason not touched by the statute? In the English statute of 16 and 17 Vict., c. 83, sec. 3, it is expressly provided that “No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage.” This wise provision of the statute, says Mr. Taylor, (1 Taylor’s Ev., p. 810,) “rests on the obvious ground, that the admission of such testimony would have a powerful tendency to disturb the peace of families, to promote domestic broils, and to weaken, if not to destroy, that feeling of mutual confidence, which is the most endearing solace of married life. The protection ¹⁶⁵ is not confined to cases where the communication sought to be given in evidence is of a strictly confidential character, but the seal of the law is placed upon all communications of whatever nature which pass between husband and wife. It extends also to cases in which the interests of strangers are solely involved, as well as to those in which the husband or wife is a party on the record.” See O’Connor vs. Marjoribanks, 4 M. & Gr., 435.

And Mr. Greenleaf, in his work on Evidence, vol. 1, sec. 254, is equally explicit in stating the rule of exclusion of all communications between husband and wife. He says that the rule obtains independently of the ground of interest and identity, which precludes the parties from testifying for or against each other. The happiness of the married state, says this author, “requires that there should be the most unlimited confidence between husband and wife; and this confidence the law secures, by providing that it shall be kept for ever inviolable ; that nothing shall be extracted from the bosom of the wife, which was confided there by the husband. Therefore, after the parties are separated, whether it he by divorce or by the death of the husband, the wife is still precluded from disclosing any communication with him.” The rule itself, with the reasons upon which it is founded, will be found well and clearly stated by the Supreme Court in Stein vs. Bowman, 13 Pet., 222, 223 .

In that case, the wife, having no interest in the suit, gave evidence to impeach the credit of her deceased husband; to prove in fact that he had committed perjury; but it was held to be wholly improper to admit such evidence; and the Court said: “It is true the husband was dead, but this does not weaken the principle. Indeed, it would seem rather to increase than lessen the force of the rule. Can the wife, under such circumstances, either voluntarily be permitted, or by force of authority be compelled, to state facts in evidence which render infamous the character of her ¹⁶⁶ husband? We think, most clearly, that she cannot be.

Public policy and established principles forbid it.” By the Act of Congress, U. S., of the 2nd of July, 1864, it is provided that there shall be no exclusion of any witness in civil actions because he is a party to or interested in the issue to be tried — a statute more sweeping and unqualified, as to the former disqualification by reason of interest, than our own. And yet, the Supreme Court, in the case of Lucas vs. Brooks, 18 Wall., 436, 453 , held,without a dissent, that the wife was not a competent witness for the husband. The Court said: “Undoubtedly the Act of Congress has cut rip by the roots all objections to the competency of a witness on account of interest. But the objection to a wife’s testifying on behalf of her husband, is not and never has been that she has any interest in the issue to which he is a party.

It rests solely upon public policy. To that the statute has no application. Accordingly, though statutes similar to the Act of Congress exist in many of the States, they have not been held to remove the objection to a wife's competency to testify for or against her husband.” And though, by the terms of our statute, the wife is allowed to testify for or against her husband, it certainly never was designed to abrogate and annul the wise rule of the common law which renders incompetent both the husband and wife to give evidence as to any communication between them; such as has been testified to in this case by the surviving wife. Upon the same principle that the wife is allowed to give such evidence, she may be compelled to testify to the most secret and confidential communications made to her by her husband.

But, even upon the supposition that the appellee is a competent witness to give the testimony that she has, still, I must dissent from the effect allowed to that testimony. Here, almost the exclusive evidence upon which the solemn decree of a Court of competent jurisdiction, and ¹⁶⁷ the equally solemn deed of the parties, are set aside and nullified, is that given hy the appellee herself, as a witness testifying in her own behalf, after the lapse of several years from the date of the transaction, and after the death of her husband, w,hose conduct is mainly involved. By the decision now made, her testimony is received and given full credence, not only to defame the character and make appear brutal the conduct of her deceased husband and the father of her children, but to overthrow and render nugatory a deed, conceded to have been signed and acknowledged by the appellee, with all due forms to render it valid, and which she allowed to stand upon the record unquestioned for six years and a half before any complaint made. Upon the faith of that deed money or credit was obtained by the husband, and there is not the slightest evidence of any agency on the part of those advancing the money or extending the credit, in procuring the deed to he executed by the appellee; nor is there any evidence whatever of any knowledge on their part, or that they had ground of suspicion even, that the deed was not in all respects proper, and good for what it purported to be on its face.

Under such circumstances, if the testimony of the appellee stood without conflict or impeachment, otherwise than by the deed itself, I should regard it as insufficient to warrant the vacation of the deed ; but standing as it does in serious conflict with other disinterested testimony in the cause, and being strongly impeached by the circumstances of the case, to say nothing of the motive to exaggerate and give color to her evidence, I cannot but regard it as utterly worthless as a basis upon which to found a decree vacating the deed, as having been obtained by threats and coercion. If solemn deeds can be vacated on testimony such as we have in this case, then there is but little confidence to be placed in any deed executed by a married woman ; and such deeds will only serve as snares and delusions to those dealing upon the faith of them. Miller, J., delivered the opinion of the Court. The record in this case shows that on the 2nd of June, 1868, Charles A. Eccleston and Martha A. Eccleston his wife, executed a deed of trust of certain real estate in Montgomery County, to secure a debt of $15,000 due hy the husband to the First National Bank of Washington.

The land so conveyed or mortgaged belonged to the wife, who had acquired the same hy conveyances from her father and other parties. In 1871, a hill was filed in the Circuit Court for Montgomery County, hy the bank and the trustee in the deed, against Eccleston and wife who were then non-residents of this State, living in the city of Brooklyn, State of New York, for a, sale of the property to pay this debt. The usual order of publication was duly published, and the Court on the 11th of October, 1872, passed a decree taking the bill pro confesso against the defendants and ordering the land to be sold unless they should, on or ¹⁵⁴ before the 12th of November, 1873, pay the money or bring it into Court to be paid to the complainants. On the 26th of December, 1874, Mrs. Eccleston filed her petition praying that the enrolment of the decree might be vacated and she be allowed to answer the bill.

The grounds important to be noticed (though others are alleged) upon which the petition asks this relief are, 1st, that the deed is void as against her, because she was forced to sign and acknowledge it by the threats, menaces and ill-treatment of her husband, which in her then weak and enfeebled condition of health, she was unable to resist. 2nd, that she had no knowledge of the institution or pendency of this suit, or of the proceedings therein; that its existence was studiously concealed from her by the fraudulent devices of her husband, and she remained in total ignorance thereof until about the middle of April, 1874. The receiver of the bank who on petition had been admitted a party complainant in the cause, and the trustee in the deed being required to answer this petition, did so, denying all its material allegations, and insisting that even if they were true, they do not under the circumstances of this case, authorize the Court to discharge the enrolment and set aside the decree. On this petition and answer, testimony was taken on both sides, and the Court, on the 7th of December, 1876, passed an order vacating the decree and allowing the petitioner to answer the bill upon tbe condition, among others, that at any future hearing of the cause, she shall rely' only on the defence that her execution and acknowledgment of the deed were procured by fraud, duress, or other improper influences, and- that she was prevented from receiving notice of the order of publication by tbe same means. She then filed her answer to the"bill reiterating tbe averments of her petition, with respect to the circumstances under which she executed and acknowledged the deed of trust.

After replication to this answer and further testi ¹⁵⁵ mony, the Court, on final hearing, passed a decree dismissing the bill, and from this as well as from the order vacating the original decree, the complainants have appealed. Where a decree has been passed by default without a hearing upon the merits, a Court of equity has power in the exercise of a sound discretion, to vacate the enrolment in order to let in a meritoi’ious defence, and this may be done upon petition without a bill of review or an original bill for fraud. This doctrine was fully considered and settled by the case of Herbert vs. Rowles, 30 Md., 271 , and was not controverted by the appellants’ counsel in argument, but they have argued and contended, 1st. That though the decree which was opened in this case appears on its face to he a decree by default, yet it is shown by the proof to have been entered by consent.

But in our judgment the proof does not sustain this position to the extent of making it a decree by consent as against Mrs. Eccleston. All that the testimoney on this point shows is that Mr. Henderson of the law firm of Peter & Henderson, about the date of the decree received a letter from Eccleston, the husband, calling his attention to this case, and saying he intended to make no defence, but wanted a stay of execution for twelve months; that immediately upon receipt of this letter he went to the office of Messrs. Anderson & Bouic, the solicitors of the complainants, informed them of the contents of the letter, and they agreed to grant the requested stay, and effected it by changing the date in the decree at which the money was to be brought in from the 12th of November, 1872, to the 12th of November, 1873, and the deci’ee so changed as to date, was then filed, hut Mr. Henderson positively swears he was never authorized by Mrs. Eccleston, either in person or by letter to appear for her in the case. Clearly this intervention of counsel at the instance of the husband cannot bind the wife, nor make this a decree by consent as against her. ¹⁵⁶ 2nd.

But it is further argued that the petition was too late, and should have heen filed within two months after the petitioner had knowledge of the decree. The law provides that when a party makes oath that a decree was obtained by fraud or mistake, he may appeal after nine months, but requires in such cases that “the appeal shall be entered within two months from the time of the discovery of the fraud or mistake, and not afterwards;” (Rule 9, respecting Appeals, 29 Md., 4 ,) and it is insisted this limitation must hy analogy be applied to the filing of this petition. It is true that in some cases Courts of equity have adopted by analogy statutory limitations of time, with