International Harvester Co. v. Blackway

⁵⁸ Pattison, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Cecil County, sitting in Equity, ratifying and confirming Auditor’s Report Ho. 2, in which the sum of five hundred and thirty dollars and thirty-one cents is allowed to R. W. Blackway upon his claim filed in these proceedings. On the 14th day of July, 1897, Eugene Plummer, by deed dated as of that day, conveyed and assigned unto William T. Warburton certain personal property therein mentioned, in trust for the benefit of his creditors. Some of the property in said deed mentioned, was included in an alleged bill of sale previously executed, on the 15th day of August, 1895, by Eugene Plummer to Robert W. Blackway, to secure an indebtedness of $1,045.15, said to he owing by Plummer to Blackway, and which is of record in the office of the clerk of the Circuit Court for Cecil County, and, so far as the records therein disclose, it is unpaid and unreleased.

The trustee disposed of the property mentioned in the deed of assignment and on the 6th day of October, 1897, reported the sale thereof to the Court, stating the amount of sales to he $711.38. The report was, on the 18th day of January, 1898, finally ratified and confirmed. In ratifying this report, the Court further ordered “that the papers he referred to the auditor of the Court, with directions to give notice to creditors of Eugene Plummer to bring in their claims, and to take proof to sKcfw how much is now due on the hill of sale given by said Plummer to Robert W. Black-way, mentioned in said assignee’s report.” As alleged in the trustee’s report of sale, the trustee, on the 6th day of August, 1897, entered into an agreement with Blackway in respect to the disposition of the property named in his hill of sale. By this agreement, “the proceeds arising from said sale are to be applied by the said Warburton to the payment of the sum due on said hill of sale to said Black-way.” ⁵⁹ No testimony was taken under the order of January 18th. 1898, and on the 25th day of September, 1905, upon the petition of Blaelcway the Court passed the second order again referring the papers to the auditor.

On the 22nd day of November, 1905, iu compliance with the last named order, the testimony of Blaelcway alone was taken by the auditor in support of his claim, in the presence of the assignee and the solicitors for the petitioner and assignor, and upon the return of this testimony, on the 22nd day of January, 1908, the Court passed the third order remanding the case to the auditor for the purpose of stating an audit distributing the proceeds of sale, with power to take testimony in support of any or all claims filed against said estate, or any objections that might be made to any claim, and directing that notice be given to creditors to file their claims. Under this order much testimony was taken and returned to the Court on December 21st, 1908. The auditor, on the 18th day of May, 1909, stated two accounts, known as Audit No. 1 and Audit No. 2. In the first, the proceeds of sale, after the payment of costs and expenses ($530.31), were distributed to four of his creditors, including the appellant, the International Harvester Company, in full payment of their claims with interest, amounting in the aggregate to $505.13, and the balance thereof $21.58, to Eugene Plummer, assignor; the claim of Black-way was excluded therefrom.

By the second audit, the whole surplus $530.31, was distributed to Robert W. Blackway. Blaelcway excepted to the ratification of Auditor’s Report No. 1, and asked the Court to ratify Report No. 2. On June 23rd, 1909, the Court passed a further order directing that the papers in the cause be again remanded to the auditor “for the sole purpose of taking the testimony of William J. Duhamel (Justice of the Peace) in reference to the execution and acknowledgment of the bill of sale from Eugene Plummer to Robert Blaelcway and the making of the affidavit thereto.” ⁶⁰ In obedience to this order, the testimony of William I. Duhamel was thereafter taken and returned to the Court, whereupon it decided in favor of the validity of the claim of Blackway and sustained the exceptions taken by him to Auditor’s Report No. 1; and in conformity with that opinion, the Court, on the same day, passed an order finally ratifying and confirming Auditor’s Report No. 2, in which the claim of Blackway was allowed. It is from the passage of this order that the appeal is taken.

The questions to be determined by this appeal are: 1st, did Eugene Plummer execute unto Robert W. Blackway the bill of sale referred to in this case, to secure the payment of moneys owing by him to Blackway ? And 2nd, if - so, what amount was owing on said bill of sale at the time that the property mentioned in it passed into the hands of the assignee ? The original bill of sale, as the evidence discloses, was lost, but a certified copy of it was placed in evidence and is inserted in the record. To this is attached the name and seal of Eugene Plummer, attested by William J. Duhamel, and appended thereto