Grove v. Rentch

Bowie, J., delivered the opinion of this Court. The points in this cause turning somewhat upon tho frame of the bill, as well as its matter, it is necessary to ascertain the material allegations. The hill shows that the appellant, the complainant below, on the 26th of September, 1859, was appointed trustee of Samuel Lynch, an insolvent petitioner, was duly qualified, and the petitioner executed and delivered the usual deed of all his property to the trustee. It is further averred, that the petitioner being engaged in boating on the Chesapeake and Ohio Canal, was, in 1858, the owner of two boats, eleven mules, gear, harness, &c., and being greatly embarrassed, borrowed of Andrew Bentch, the appellee, the sum of $512.61, for which he executed to Bentch a bill of sale for the said eleven mules and a canal boat, the “Mehaffy,” which veas executed ie> secure the payment of the money and designed and intended by the parties thereto, at the time of its execution, as and to have the operation of a mortgage, although it teas absolute on its face.

That It was contemplated at the time that Lynch should repay the money, and if it became necessary for Bentch, in order to make the money, to sell, he should account to Lynch for all or so much as remained after payment of the principal sum and interest. That the property included in the hill of sale was of the value of two thous- and dollars, and Bentch, understanding that the bill of salo was intended as a mortgage, permitted the property to remain in Lynch's possession, and allowed him to usa ³⁷⁶ and control it as his own until after his application for the behefit of the insolvent laws. It is further alleged, that at the time of executing the bill of sale, Lynch was largely indebted to sundry persons in Allegany and Washington counties, and after the execution, but before it was recorded, several of the creditors of Lynch obtained judgments and levied executions on the property conveyed, without knowledge of the bill of sale, while the property was in possession of Lynch, and which levies are still subsisting and unsatisfied. The bill further charges, that after Lynch applied for the benefit of the insolvent laws, Rentch took into his possession the property mortgaged, ( except some of the mules which had died,) and claimed the same as his absolute property, and afterwards sold a part thereof for the sum of nine hundred dollars, and refuses to account with the insolvent trustee, claiming the absolute property in the chattels aforesaid, which pretence and claim is to the manifest wrong and prejudice of the creditors of Lynch, and contrary to the true intent and purpose of the bill of sale.

Wherefore the complainant prayed the bill of sale maybe declared to be what in fact it was intended to he, a mortgage for the security of the money due and owing to the mortgagee, Rentch, and that he may account, &c., and for other and further relief. The respondent’s answer denies all the material allegations of the bill, particularly that the bill of sale was intended to secure money loaned, but avers it was an absolute deed in consideration of money paid as therein set forth. A general replication was filed, commission issued, testimony taken and returned, and the bill upon final hearing dismissed, from which decree this appeal is taken. The appellee’s objections are first-to the form of the bill, insisting it is wanting in such material averments as are necessary to give jurisdiction to a Court of Equity.

That ³⁷⁷ neither fraud, surprise, accident, or mistake, is alleged ; “it is simply a bill to change the character of a legal and solemn instrument by parol testimony.” ' This is virtually a demurrer to the hill, and if well founded and taken in time would be unanswerable, for although relief can he had in equity against a deed or contract in writing, founded in fraud or mistake, still it is essential that the fraud or mistake should be alleged in the hill as the ground and object of parol proof. “It is essential, upon every principle of correct pleading, that that which gives jurisdiction to the Court should ho distinctly and substantially alleged.” 6 H. & J., 28 . Watkyns vs. Stockett, Ibid., 445. Timms & Wife vs. Shannon, 19 Md. Rep., 312 . It is not necessary, however, that the fraud or mistake should he alleged “in totidem verbis,” the charge may ho substantially made by stating the facts