Gore v. Condon

Briscoe, J., delivered the opinion of the Court. This is an appeal from a judgment for the defendant upon a demurrer to the plaintiff’s declaration. The cause of action set forth is of an unusual character and we will state it in the language of the declaration itself, which is as follows : “And the said Martha E. Gore, by her husband and next friend, Lewis D. Gore, of Baltimore City, in the State of Maryland, sues Levi Z. Condon, of the city and State aforesaid : For that on or about the eleventh day of May, 1889, the said defendant fraudulently obtained from one Daniel Frazier a fraudulent and void mortgage for the sum of six hundred dollars, upon the property of the plaintiff, situate in the city of Baltimore, on North Gilmor street, near Presstman street, which said fraudulent and void mortgage contained a consent clause for an ex parte decree, the said Condon well knowing at the time of obtaining said fraudulent mortgage that the property upon which it was obtained, and which was described therein, was the property of the said Martha Ph Gore, and not the property of the said Daniel Frazier, the mortgagor therein, and that said mortgage was fraudulent and null and void as to the said plaintiff and her said property therein described. “Yet, notwithstanding the said defendant knew that the said mortgage was fraudulently obtained, and was fraudulent and void as to the said plaintiff, the said Martha E. Gore, and her said property therein described, yet, nevertheless, to further carry out his fraudulent design, the said defendant did, on or about the — day of-, 1894, file his petition and said fraudulent mortgage in the Circuit Court of Baltimore City, alleging said mortgage to be in ³⁷³ default, and under the said consent clause therein obtained an ex parte decree from said Circuit Court for the sale of the plaintiff’s property, Charles W. Nash, Esq., of the Baltimore City bar, being appointed trustee by said decree to make said sale, and on or about the 13th of June the said defendant actually caused said trustee to advertise said property for sale, and he, the said defendant, notified the said plaintiff’s tenants in the property to pay no more rents to the plaintiff; that in order to save her .said property from sale as aforesaid, under said fraudulent mortgage and decree so fraudulently obtained as aforesaid, was compelled to file her bill of complaint in said Circuit Court aforesaid (which she did on or about the 20th day of June, 1894), setting forth the fraudulent character of said mortgage, and praying for an injunction to restrain said sale aforesaid, and that said mortgage be decreed to be fraudulent and null and void as to her and her property therein described ; the said writ of injunction did issue and was served upon the defendant, Condon, and the said trustee, and remained in force until on or about the 3rd day of June, 1895, during all which time the said plaintiff received no rents or profits from her said property on account of the said defendant notifying the tenant in said property to pay her no rents ; and during all which time the taxes, water rents and ground rents were accumulating, when, after hearing said cause, said Circuit Court dismissed the plaintiff’s bill of complaint with costs to the defendant, from which said last decree the said plaintiff, on or about the 5th day of June, 1895, took her appeal to the Court of Appeals of Maryland, the said defendant, Condon, having full knowledge of said appeal. That notwithstanding the said defendant, Condon, had actual knowledge of the fraudulent character of said mortgage, and that the property therein described was the property of the said plaintiff, Martha E. Gore, and that there was an appeal pending in said Court of Appeals from said decree dismissing her bill of complaint, yet pending said appeal, he seized and sold said property under said ex parte decree; ³⁷⁴ whereupon all her tenants moved out without paying her any rent, and leaving said ground rents, taxes, water rents and other expenses unpaid.

That after arguing said appeal in the Court of Appeals, the said Court reversed the decree of said Circuit Court of Baltimore City, and decided the said mortgage from said Frazier to said Condon to be fraudulent and void as to the said plaintiff, the said Martha E. Gore, and her said property, and remanded said cause to said Circuit Court, the said defendant, Levi Z. Condon, to pay all costs above and below; all which more fully appears from the opinion of said Court of Appeals, recorded among the cases of said Court designated to be not reported, liber —, folio —, October Term, 1895 ; a copy of which opinion, taken from the “ Daily Record,” of November 25th, 1895, is hereto attached as part thereof. “And said Circuit Court of Baltimore City, in pursuance of said opinion and decree of said Court of Appeals, passed a decree setting aside said sale made pending said appeal aforesaid, making said injunction perpetual and declaring said mortgage null and fraudulent as to the said plaintiff, Martha E. Gore, and her property. That at the time of advertising the said property, and of the defendant, Condon, notifying her tenants to pay her no more rent, the plaintiff had upon the premises three good prompt paying tenants who had occupied the premises for some time previous to said advertising and notice aforesaid, to-wit, a tenant in the dwelling-house paying twenty dollars per month, a tenant in the two rooms over the stable paying five dollars per month, and a tenant on the ground-floor of the stable paying two dollars and fifty cents per month rent, all of whom, upon the sale of said property, moved out, paying the plaintiff no rent and leaving the property in the hands of the defendant