Homer v. Grosholz

G-rason, J., delivered the opinion of the Court. These are cross-appeals from an order of the Circuit Court for Baltimore City, over-ruling exceptions of ⁵²⁵ Homer to an auditor’s account, and finally ratifying the account, Homer appealing because he was not allowed the full amount of his claim under the mortgage of the 26th day of August, 1868, and Gfrosholz and Coquentin appealing first, because they were not allowed the whole proceeds of the sale of the merchandise, purchased of them by Husgen ; and second, because -Homer was allowed to participate in the distribution of said proceeds of sale with the other creditors of Husgen. On Homer’s appeal, it was contended by the counsel of the appellees, that the appellant is estopped from setting up his claim, to the extent of five thousand five hundred dollars, because it was included in the deed of trust of February, 1867, and was, by the deed of release of January, 1868, declared to be paid and fully satisfied. It has been settled by various decisions in this State, that the recital of the payment of purchase money in a deed, or of the receipt of the mortgage debt in a release of mortgage, is not conclusive upon the parties, but is always open to explanation.

Wolfe vs. Hauver, 1 Gill, 84 ; Robinett vs. Wilson, 8 Gill, 181 ; Shepherd vs. Bevin, 9 Gill, 36 ; Carr vs. Hobbs, 11 Md., 229 ; Dangerfield vs. May, 31 Md , 344. The deed of January, 1868, released the security but not the debt, and in an action by Homer against Husgen to recover the debt, the former would not have been estopped by the recital in the deed, from showing that the debt was still due. But, it was also contended that the recital in the deed of January, 1868, that this debt had been paid, and the recording of the deed was notice to the world that the debt had been paid, without which the appellees would not have parted with their goods to Husgen on credit, and therefore, that such declaration operates as an estoppel in pais, against Homer, as to his claim of five thousand five hundred dollars. In the case of the Welland Canal Company vs. Hathaway, 8 Wend., 483 , the Court say, iCto constitute such an ⁵²⁶ estoppel, there must be acts or admissions intended and designed to influence the conduct of another; the acts or admissions must come to the knowledge of the party, his conduct must be influenced by them, and a denial of them will operate to the injury of the party, whose conduct is influenced by them.

The Court of Appeals, in the case of Alexander vs. Walter, 8 Gill, 249 , adopt the rule laid down in the Welland Canal Co. vs. Hathaway, as the correct doctrine, and applied it to the case then before them, and it must be regarded as the law of this State. The same-doctrine has been held in other States of the Union, and is to be found in the cases cited in the appellant’s brief. There must not only be acts or admissions, which come to the party’s knowledge, but his conduct must be influenced by them. Conceding then that the registration of the deed of January, 1868, imparted to the appellees, a knowledge of the recitals therein contained, that the debt had been paid, yet one of the necessary ingredients of' an estoppel is still wanting, as there is no proof whatever that the appellees, or either of them, were influenced thereby to part with their merchandise to Husgen upon credit.

On the contrary the proof shows that Husgen had been purchasing goods on credit from time to time, from Coquentin in Paris, at the very time that the deed of trust was in existence and upon record, and notice of which, he is therefore presumed to have had; and this fact furnishes a strong presumption that the goods sold to Husgen, after the release had been executed and recorded would have been sold to the same amount, and upon the same terms, even if the deed of release had never been executed and recorded. Under these circumstances, and in the. absence of proof, that the appellees were influenced by the release to sell their goods on credit; we think it very clear that Homer is not estopped from setting up his claim to the five thousand five hundred dollars, which was rejected by the Court below. ⁵²⁷ Upon the appeal of G-rosholz and Coquentin, it was contended first, that they were entitled to a separate account from Homer as executor of Husgen, of the proceeds of the sale of their goods sold to Husgen after the deed of release had been recorded, on the ground that Hus-gen was insolvent, and that