Glenn v. Clark

Bartol, C. J., delivered the opinion of the Court. The first question to he considered in this case, arises-upon the exceptions of the appellants to the admissibility of evidence tending to establish or set up the infancy of" the appellee, at the time of the execution of the mortgages of January 19th 1830 and July 19th, 1831. This exception is based upon the alleged insufficiency of the averments in her original hill and amended hill to-raise that issue, and also upon the effect of her admissions in the agreed statement of facts, and in her amended answer, which, it'is contended, amount to a waiver of her-right to assert or rely upon her alleged infancy, and preclude her from denying the binding effect of the mortgages for that cause. With respect to the original hill, it is clear that theappellee was not called on to anticipate the defence of the appellants, or to urge or rely upon the fact of her infancy.

By her general replication, she put in issue the defences relied on in the answer, and cast upon the respondents, the onus of proving the existence, due execution and binding effect of the mortgages. Her admission in the agreed statement of facts that “ she concurred in the two-mortgages as stated in the answer,” amounts to no more-than an admission of the fact that she had so concurred, and does not import that she was at the time of full age,. ⁵⁹⁹ or that the same are valid and binding upon her. In the same manner, her offer in the amended hill to “ allow in the settlement of this cause to the defendants, whatever sum may he ascertained to he fairly and equitably due by her, as her contribution towards the redemption of such mortgage or mortgages as it may appear she joined in according to law, so as to bar and defeat her said dower,” does not in our judgment amount to an admission that she was of full age, or preclude her from alleging and relying on her infancy, and offering proof in support of that fact, nor can it he construed as a waiver of her rights in that respect. For these reasons the exceptions of the appellants to the bill and amended bill for insufficiency, and their exceptions to evidence of the infancy of complainant are overruled.

At the same time we are of opinion that there is no sufficient evidence in the cause, that the appellee was in fact under the age of twenty-one years, when she united in these mortgages. The agreement of November 30th 1877, relied on, for that purpose, cannot in our judgment he construed as establishing the fact. It is stated in the agreement that she was then, sixty-seven years of age ; but it is not stated at what time she attained that age, it cannot he construed to mean that she had reached that exact age on the day the agreement was filed. If she was 67 on or before the 19th day of July of that year, then it is obvious that she was of full age when she united in the mortgage to Columbus O’Donnell, a fact which would he quite consistent with the agreement ; the day and year of her birth are not stated, and it is therefore not clearly shown at what time she reached the age of twenty-one years.

Moreover, looking at the circumstances under which the agreement was made and the evident object and purpose of appellants’ counsel in making it, as stated by him, which was solely for the purpose of determining the allawance of dower to the appellee, if any should he allowed, ⁶⁰⁰ with, regard to which, under the chancery rule, her precise age would not he material, we cannot hold that the agreement establishes the fact of her infancy as alleged. But as we have said, she is not precluded from setting up this defence, and as the case must he remanded, for this and other reasons to he stated hereafter, she will have an opportunity of offering proof on this point, if it shall he deemed material in the further progress of the cause. The next question to he considered arises upon the cross-bill, and the exceptions of the appellee thereto, and to the admissibility of “ Exhibits X, 7, Z,” filed therewith. One ground on which the cross-bill is sought to he maintained, is that appellants' solicitor was taken hy surprise, when in the argument of the cause the appellee’s solicitors alleged that she was an infant under the age of twenty-one years when she united in the mortgages.

But as we have said, there was nothing in the pleadings, or íd her admissions, to preclude her from setting up and relying upon her infancy, it is obvious that the cross-hill cannot he supported for this cause. The only affirmative relief asked hy the cross-hill is that the two mortgages in question, in case the same were executed when the appellee was not of full age, shall be confirmed and made valid hy the Court under Art. 16, sec. 31, of the Code. The power conferred upon the Courts of Chancery hy this provision was first given hy the Act of 1832, ch. 302, which was passed after the mortgages in question had been executed. That Act is not retrospective in its operation . and therefore could have no application to the present case.

But in addition to this objection, it is clear that the provisions of the Act, and of the Code, even if they had been in force at the date of the mortgages, would confer no power upon the Court to confirm a mortgage executed hy a feme covert infant, after she had attained full age and against her consent. The whole intent and pur ⁶⁰¹ pose of the statute is to confer upon the Courts the power to confirm and make valid a conveyance hy an infant feme covert, which might he shown, during her infancy, to he equitable, expedient or proper looking to her benefit, and does not apply to any case, after such infant feme covert has attained full age. The appellants not being entitled to this, the only affirmative relief prayed in their cross-hill, there remains no other ground stated therein upon which the cross-bill can he maintained. The rule is well settled that “ a hill of this kind which seeks no discovery, and makes no defence which was not equally available hy way of answer to the original hill, will he dismissed.” Story Eq.

Pl., sec. 389. We refer also to 2 Daniel Ch. Pl. & Pr., 1648 and 1659, where the same rule is stated. “The plaintiff in a cross-bill cannot contradict the assertions in his answer in the original suit.” 2 Daniel, 1652. It follows that the cross-hill of the appellants must he dismissed.

It appears, however, from the matters therein disclosed, with reference to the mode in which John Clark acquired the title to the property in question, and the nature of his seisin thereof, that the appellants may he entitled to a valid defence in this suit, provided the facts are alleged in proper form by way of an amendment to the answer in the original case, and are. established hy competent and sufficient proof. It is very clear that under the rules before stated, these new matters of defence cannot properly be presented hy a cross-bill. And the question arises whether the appellants, after the admission made in their original answer, and by the agreement of November 30th, 1877, with respect to the seisin of John Clark, ought to be allowed now to amend their answer, setting out the facts showing the nature and character of the seisin actually held hy John Clark. It appears from the allegations in the cross-hill, which we may look at for this purpose, that these facts ⁶⁰² were not known to the appellants when their original answer was filed, and the agreement of November 30th, 1877, was made, and that they have since been discovered.

It is argued on the part of the appellee that these new facts ought to have been known to the appellants when they answered the original bill, and entered into the agreement above stated, and that it is too late now for them to allege and rely on the same. But when it is considered that the appellants were not parties to the transactions of' John Clark in the original acquisition by him of the property, which took place more than twenty-four years before the original bill was filed, and that until the defence of infancy was set up, they had no motive for looking into the title of John Clark and of the appellee, prior to the date of the first mortgage, we think that laches in this respect cannot be properly imputed to the appellants, and as the newly discovered facts appear to be material, and if established, constitute a meritorious defence, the appellants ought to be allowed to file an amended answer, setting forth the manner in which John Clark acquired title and the nature of his seisin. The right of a party to amend “at any time before final decree, so as to bring the merits of the case in controversy fairly to trial,” is conferred in the most comprehensive terms by the Code, Art. 16, sec. 16. This right is not ex debito, but as decided in Calvert vs. Carter, 18 Md., 74 , depends upon the sound discretion of the Court.

Yet in a case like the present, where laches cannot be imputed to a party, and the facts constituting the grounds of defence, have been discovered for the first time during the progress of the cause, it is-equitable that the amendment provided for in the Code ought to be allowed. The power to remand the case for that purpose is conferred on this Court by Art. 5, sec. 28. Under this section it becomes our duty to express our opinion on all points made before us, or which may be presented by the record, ⁶⁰³ so far as the same appeap -to us to be material for the decision of the case. This opinion must be, in some respects, hypothetical, as we cannot with certainty anticipate the position the case may assume when the pleadings shall be amended, and additional proof furnished.

These propositions may however be laid down for the government of the Court helow, in the further progress and final disposition of the case. It appears from the record that the title of the appellants was derived indirectly from the General Insurance Company, which purchased the property from Gatchell, trustee, appointed to sell the same, by a decree recovered by said company against John Clark under a mortgage, dated January 16th, 1834, in which mortgage the appellee did not unite. The title thus acquired by the General Insurance Company, was subject to the liens of the prior mortgages made by Clark, in two of which the appellee united according to law, relinquishing her dower. These prior mortgages were subsequently paid by and assigned to the General Insurance Company, and the title thus acquired by purchase and assignment is held hy the appellants. 1st.

Assuming that John Clark had during the coverture, a beneficial legal seisin in fee, and that the appellee was of full age when she united in the mortgages of January 9th, 1830 and July 19th, 1831; she cannot claim dower against the mortgagees, and their assigns, except subject to such mortgages, and is bound to contribute for the payment of the mortgage debts and interest, and she is dowable of the surplus only. Mantz vs. Buckman, 1 Md. Ch. Dec., 202; Stewart vs. Beard, 4 Ib., 319; Lynn vs. Gephart, 27 Md., 547 ; Bank