Green v. Early

Alvey, J., delivered the opinion of the Court. •By the return to the attachment, Early is made a garnishee with Townshend, whereas, he should have intervened simply as claimant, if he desired to contest the plaintiff’s right of condemnation. He is not the party in whose hands the credits are found, but is the party claiming them to be due from Townshend to himself, and ²²⁸ therefore he insists that they are not liable to be attached and condemned for the payment of the plaintiff’s judgment against Baden. Townshend, the debtor, is the only proper garnishee, according to the facts of the case, and if the plaintiff be entitled to judgment of condemnation, it must be against Townshend alone. The case was tried before the Court below, without the aid of a jury, and judgment was rendered for the defendants, Early and Townshend, in consequence of a divided Court upon the questions of law as presented by the prayers of the respective parties.

And without reciting all the facts, it is sufficient to say, that, if we assume the facts to be true, as stated and conceded, as well by the third prayer of the defendants, as in the first prayer of the plaintiff, the latter would be entitled to judgment of condemnation as against Townshend. Baden, the judgment debtor, had sold his real estate to Townshend, and conveyed it by a joint deed of himself and wife, and at the same time, for balance of purchase money, took from the vendee, Townshend, a mortgage of the same land to the wife, together with certain single bills, payable at different dates, also to the wife'. Three days after this transaction, the mortgage and single bills were all assigned to Early, the assignment on the mortgage being signed by both husband and wife. The mortgage, with the assignment on it, was soon thereafter placed on record by Early.

The mortgage states on its face that it was given for balance of purchase money, and refers to the deed as conveying the land embraced by the mortgage. The deed states on its face the derivation of title, and shows plainly that the land sold and conveyed to Townshend was the proper land and estate of Baden, the husband, and not that of his wife, to whom the mortgage and single bills were executed, by the authority and direction of the husband. This being the case, the making of the mortgage and single bills to the wife, was ²²⁹ plainly an acquisition of property by her from her husband, and consequently is not valid} if it be Ciin prejudice of the rights of his subsisting creditors.” Gode, Art. 45, sec. 1. It is not denied that the plaintiff was a subsisting creditor of the husband at the time of these transactions.

It is clear we think that Early must be taken as having had notice of all the facts disclosed by the mortgage, and also by the deed recited in it. For the principle is, that where a party has notice of a deed, or other instrument, as, in this case, of the mortgage, which, from the nature of it, must affect the property, or is otherwise informed at the time that it does affect it, he is considered to have notice of the contents of that deed, and of all other deeds to which it refers; and whatever is sufficient to put a purchaser Upon inquiry is good notice; that is, where a man has sufficient information to lead him to a fact, he is deemed to be conusant of it. Price & Bevans vs. McDonald, 1 Md., 403 . The information imparted by the mortgage and deed was, that the land was sold as the estate of the husband, and not the wife, and that the mortgage and single bills had been given as security for part of the purchase money due the husband on the sale, though made, by his direction, to the wife.

And now the question is, can the assignee, under the circumstances, taking the mortgage and single bills from and through the. wife, stand in any better predicament, with respect to the husband’s creditors, than the wife herself, if she had not assigned the securities? We think he cannot. Taking the assignment from the wife, with knowledge of her relation, and the manner in which the subject-matter of the assignment was acquired by her, the assignee could acquire no better title than the wife held. The same conditions and infirmities that attached to the title while held by the wife, followed and adhered to it ²³⁰ in the hands of the assignee ; and as the Code, while allowing a transfer of property from husband to wife, declares that all such transfers shall be invalid, if to the prejudice of the rights of subsisting creditors of the husband, it would seem clearly to follow, that the property in this case assigned by the wife, may be seized and applied by the plaintiif, a subsisting creditor of the husband, if he be prejudiced, as if no transfer of the property had ever been made by the husband to the wife.

This results from a plain