Johnson v. Hines

Yellott, J., delivered the opinion of the Court. In the voluminous record transmitted to this Court are four appeals from an order of the Circuit Court for Kent County, sitting in equity; and some difficulty has been encountered in segregating from a mass of irrelevant matter the prominent and material facts upon which a proper solution of the questions in controversy is dependent. Some years antecedent to the pending litigation, by a decree of the Circuit Court for Kent County, in a cause in which II. Maria Blackiston and others were complainants, and Clara L. Blackiston and others defendants, D. James Blackiston was appointed trustee, and was directed to sell certain real estate situate in said county, consisting of about one hundred and fifty acres of laud known and designated by the name of “Davis’ Industry,” in order that the proceeds from the sale, when made, might be distributed among the parties to the cause who were the devisees of a certain Jemima Kaudain.

On the 10th day of June, 1869, the trustee, so appointed, sold the said real estate to his father, D. C. Blackiston ; but this transaction has never received the sanction of the Court by an order of ratification, nor has the purchase money ever been paid. The trustee, however, on the 2'lst day of January, 1810, executed and delivered a deed to the purchaser, in manifest contravention of the explicit terms of the decree, which inhibited the execution and delivery of a deed anterior to the payment of the purchase money. The proof in the cause tends to establish the fact of the insolvency of the purchaser as well as that of the trustee, and the irresponsibility of their sureties. That a deed had been executed was, apparently, unknown to the devisees directly interested in said real estate until a number of years subsequent to its delivery to the purchaser; several of them testifying that they had no knowledge of the ¹²⁶ fact until ISLT.

Soon after the discovery of this fact, on the 29th day of December, 1877, H. Maria Blackiston, and the other parties in interest, filed a bill, on the equity side of the Circuit Court for Kent County, against D. James Blackiston, the trustee, D. C. Blackiston, the purchaser, A. P. Gorman, and others, to enforce their alleged vendor’s lien on the real estate sold by the trustee, and conveyed in the manner aforesaid. This suit was never prosecuted to decree, it appearing that, anterior to its institution, the said D. C. Blackiston, having become greatly embarrassed by his pecuniary obligations and by the pressing claims of his creditors, who had obtained a number of judgments against him, executed a mortgage, in which his wife joined, on all his real estate situate in Kent County, consisting of several farms, including “Davis’ Industry,” to Arthur P. Gorman, Wm. H. Bians, Charlotte Spencer, and Thomas Pumphrey, empowering said mortgagees, or their attorneys, M. Bannon, and Richard Hynson, to sell,, upon default, after giving the prescribed notice. The same property was afterwards conveyed, by D. C. Blackiston and wife, to Richard Hynson, James A. Pearce and Michael Bannon, in trust, with power to sell and apply the proceeds from the sale to the payment of the judgments, mortgages and other claims against the said D. C. Blackiston in conformity with the legal principles applicable to the question of priorities.

A sale was made under this, deed; the creditors of D. C. Blackiston assenting to the execution of the trust, and by an agreement filed in the cause all questions in relation to the claims of the devisees of Jemima Naudain are reserved for determination in the distribution of the fund thus created. The auditor stated a number of accounts, in each, making a distribution of the proceeds from the sale in correspondence with the separate and distinct theories of the parties respectively. Exceptions were taken to each one of these accounts, which was sustained, the accounts re ¹²⁷ jected and the matters involved in controversy referred back to the auditor with directions to state an account in conformity with the instructions, accompanying the Court’s order, and indicating the questions decided and brought by appeal, into this Court for revision. To enter upon a detailed examination of the items in each one of these accounts would probably lead to an almost endless, and certainly to an exceedingly amplified and prolix investigation, and, as this cause must be remanded, it would seem that a concise exposition of the legal principles, forming the basis of the instructions given by the learned Judge in the Circuit Court, is all that is necessary for the. guidance of the auditor in his future action.

The auditor was instructed to disallow the judgment of Harriet Tilghman, use of G. B. Westcott, use of Thomas Pumphrey, which was obtained November 21st, 1866; the judgment of the Mutual Eire Insurance Company, use of Thomas, use of N. Pumphrey, which was obtained October 19th, 1868; and the judgment of the Visitors and Governors of Washington College, which was obtained on the 11th day of May, 1868. These judgments were obtained in suits against D. C. Blackiston, more than twelve years anterior to the execution of the deed of trust under which liis property was sold and the fund for distribution created. It was assumed that they were consequently barred by the Statute, and were not admissible as evidence of any indebtedness, Rev. Code, Art. 69, sec. 3. It has been contended in argument that, on some of these judgments, executions had been issued antecedently to the expiration of the period of twelve years, and that a bar had thus been interposed to the operation of the Statute.

This question was determined in the case of Mullikin vs. Duvall, 7 G. & J., 355 ; the Court there deciding that a judgment could not be revived by scire facias subsequently to the lapse of the statutory period of twelve ¹²⁸ years, and that an outstanding execution levied on lands which remained unsold, did not form an exception to the Act of Limitation, which .commenced to operate from the date of the recovery of a judgment. A judgment might he kept alive and in full legal operation for an indefinite period, by issuing an execution upon it within three years (or now under the provisions of the Act of 1874, it would seem within twelve years,) and by renewing such execution from term to term, but if it has not been regularly continued, and a scire facias should become necessary, the computation of the time of limitation would commence from tbh date of the judgment, or from the term of the Court when the process of execution could have been legally issued. “ The English mode is, to issue one execution, procure it to be returned and filed, and afterwards continue it to the time when a real execution is wanted, by fictitious entries on the record which are not made until they are required to be used. The Maryland mode is to renew the execution every Court by an order to the clerk to issue an execution to lie. The clerk does not really issue any execution upon this order; but makes the same entry on his docket as if he did; adding only on the margin by way of remark the words ‘to lie.’ ” Evans’ JPr., 66.

The judgment of the Mutual Eire Insurance Company, of Kent County, was not barred by limitation, ás was supposed by the Circuit Court, there having been a stay of execution for one year. It should, therefore, have been admitted in the order of its priority to 'be determined by its date. The mortgage from D. C. Blackiston and wife to A. P. G-orman and others, is shown, by the evidence in the cause, to have been taken as an additional and, as was supposed, a better security for claims on which judgments had already been obtained. Eeferring to the mortgage, Mr. Bannon, in his testimony, says: “ It pledged, besides Mr. ¹²⁹ Blackiston’s interest, his wife’s potential right of dower; it rendered the property more saleable, by including the whole title, and stating definitely the indulgence Mr. Blackiston was to receive on the prior judgments and decrees, and rendered the debt, due on the assignments, more readily collectable, and made the security more valuable for both borrower and lender.” The Circuit Court treated this mortgage as collateral security for the judgments named in said mortgage, and which are barred by limitation.

The principle on which this ruling is founded cannot be controverted. A creditor may be so fortunate as to obtain more than one security for the payment of money due him, and if one fails him, because of the operation of the Statute of Limitation, by no process of ratiocination, based upon judicial authority, can it be made to appear that the other is necessarily extinguished. It is true that there can be but one satisfaction of the debt, but the evidence of its existence may be multiform. There was, therefore, no error in the Court’s ruling on this point, nor in the determination which seemed to follow in logical sequence, that the wife of D. C. Blackiston, who had joined with her husband in the execution of the mortgage, should not receive any allowance for her potential right of dower in any of the lands embraced in said mortgage, until the amounts due on said judgments and secured by said mortgage had been paid in full.

The judgment of Hurlock, use of Spry, designated among the claims as No. 8, and being part of a judgment against W. T. Spry, as a co-defendant and surety for D. C. Blackiston, has not been allowed, as no copy of this judgment was among the papers submitted to the Court. The Circuit Court decides that “ if the judgment was obtained against Spry as a surety of Blackiston, and Spry has paid the same, or any part thereof, then the claim should be allowed to the extent of said payment, accord ¹³⁰ ing to the priority of the judgment, unless the lien has been lost by lapse of time or 'otherwise.” There is no error in this determination, and it furnishes a correct rule for the guidance of the auditor in stating an account. The auditor, in one of the accounts stated, has distributed the proceeds from the sale of the tract of land called “Davis’ Industry” among the devisees of Jemima Naudain, in satisfaction of what has been termed in these proceedings their vendors’ lien. . The Circuit Court rejected this account because of other inaccuracies, but sustained the claim of these devisees to the special fund arising from this source, and directed the auditor to allow it in restating his account.

The trustee having acted in contravention of the terms of the decree, an effectual remedy need not have been sought for, by a bill in equity, for the enforcement of a vendor’s lien. Upon a proper presentation of the facts by petition, the Court could have treated the unauthorized conveyance to D. C. Blackiston as a nullity; could have removed the trustee; appointed another fiduciary agent in his stead, and directed him to make sale in conformity with the terms'of the decree. It has been urged in argument that, although the sale was not ratified, the ratification of the auditor’s account was tantamount to a waiver of the objection. This position is not tenable; for it is a recognized principle that there can be no waiver of a nullity.

There is a marked and important distinction between nullities and irregularities. An irregularity may be waived; a nullity never can be waived. In Holmes vs. Russell, 9 Dowl., 437, Coleridge, J., says : “It is difficult sometimes to distinguish between an irregularity and a nullity, but I think the safest rule to determine what is an irregularity and what is a nullity is to see whether a party can waive the objection. If he can waive it, it amounts to an irregularity; if he cannot, it is a nullity.” ¹³¹ This principle, in its application to irregular and null proceedings, is recognized and acted upon in the Courts of Chancery.

Daniel’s Ch. Pr., 304. It must be apparent that, in legal contemplation, the act of a trustee in undertaking to execute a deed of conveyance before the Court had consummated the sale by its ratification, is as absolute a nullity as, in an action at law, would be the issuance of an execution in anticipation of the rendition of a judgment. The improvident ratification of an auditor’s account could not, therefore, be construed to be a waiver of that which was in its inception and finality, essentially and absolutely null and void.

As by an agreement filed in this cause, the devisees of Jemima Naudain have consented to look to the fund created by the sale of the tract of land called “ Davis’ Industry” for the satisfaction of their claim, it becomes necessary to analyze the title of D. C. Blackiston to this particular portion of the-real estate conveyed by deed of mortgage to A. P. Gorman and others. He derived his title, if any he had, from the unauthorized conveyance of the trustee. Even in the case of a conventional trust, if the trustee goes beyond the scope of the power conferred by the deed or other instrument creating the trust, a Court of equity will declare his acts to be ultra vires and legally inoperative. But in the case now under consideration the Court was the vendor, making a contract of sale through its agent, the trustee, and no sale could be consummated unless it had been judicially sanctioned and ratified.

The unauthorized deed of the trustee could convey no title to the purchaser, who, therefore, acquired no seizin in the land by its delivery. That nothing can emanate from nonentity or, as more tersely enunciated, de nihilo nil, is an axiom in the physical sciences which might be appropriately transferred to a judicial investigation of this nature. If D. C. Blackiston had no title he could convey none by way of mortgage or otherwise. It may be safely ¹³² asserted, as being beyond the scope of controversy, that, if the Court, treating the sale as a nullity, had appointed another trustee, whose sale was ratified and a deed given, the purchaser under it would have acquired a paramount title.

And if, after the delivery of the deed, a grantee of Blackiston had entered and held possession, on what ground would he have stood in an action of ejectment for the recovery of the premises instituted by the purchaser at the sale which had received the sanction of the Court by its