McKaig v. Piatt

Maulsby, J., delivered' the opinion of the Court. The appeal in this cause is from the decree for a sale of the property, passed on the 19th day of August, 1868, and from the order overruling the exceptions of the appellants, and ratifying the auditor’s report distributing the proceeds of sale, to the exclusion of the claim of the appellants, passed on the 26th day of May, 18o9. One of the points raised, and insisted on, is that by the bill filed by the appellants and Messrs. Hopkins, in February, 1863, against George Hoblitzell, James H. Hoblitzell, John T. Edwards and George M. Blocher, sheriff, numbered 974 on the equity docket, the complainants in this cause are barred from maintaining it, and the pendency of the former is pleaded as a bar.

The object of the former bill is well defined by the appellants, in their answer to the bill in this cause, to be “for the purpose of enforcing the payment of the balance of the indebtedness mentioned in said deed of trust.” Ancillary to that object was the prayer for an injunction, which was issued, and which restrained the defendants therein from selling or disposing of any property that might be seized by virtue of the writs of fieri facias mentioned in the bill, and “ also from taking or having any or further proceedings on the judgments, or writs of fieri facias.” In this cause the complainants are some of the heirs-at-law of said George Hoblitzell, and the ²⁵⁸ defendants are the other heirs-at-law, one of the complainants, claiming that he is also a judgment creditor of said George Hoblitzell, who was dead at the time of filing the bill, August, 1867; and the object is to sell the real estate of the deceased ancestor, for distribution of the proceeds of sale amongst his heirs-at-law, after payment of said judgment. That judgment is not either of those enjoined. For the purposes of this cause, the rule .on this subject is sufficiently stated in Seebold vs. Lockner and wife, 30 Md., 133, where the authorities are referred to. The Court says “it is a good plea to a bill in equity that there is another suit depending in the same Court for the same cause.

It is however requi-' site that the whole effect of the second suit should be attainable in the first.” “ It thus appearing that the whole effect of the present suit cannot be attained by the appellees in the other case, we think the plea was properly overruled,” although part of the relief sought in both cases was the same. In this cause no relief is sought in respect of the judgments or fieri facias enjoined in the former. We concur therefore in the opinion of the Circuit Court on this point, that the pendency of the cause, No. 974, was not well pleaded in bar of proceedings in this, and are of opinion - that the decree of 19th of August was properly passed. The next question is on the order of May 29th, 1869, finally distributing the fund, and excluding the appellants from participation in it.

The learned Associate Judge who passed this order, and the auditor who stated the account, appear to have understood the opinion of the Court filed on the 18th of August, 1868, and accompanying the decree of the 19th, as concluding the claim of the appellants, on the grounds of laches, limitations, or lapse of time. We do not so understand the opinion. It said in express language “ if there is really any portion of the debt still due that can be enforced against the estate of the deceased, it will be. competent to the parties to file the claim in this cause, and participate in the distribution of the proceeds of the sale of the ²⁵⁹ real estate sought to be sold: the proceedings in this case being as well for the benefit of creditors, as the heirs of the deceased.” The bill in Wo. 974 was, on its showing, for a legitimate object. It was an assertion of the claim of the appellants made in the only forum which could give any effective relief towards realizing the claim.

George Hoblitzell answered and substantially admitted that there was a balance due. These appellees are bound by that admission. This bill was pending when George Hoblitzell died. Wo proceedings had been taken by either party to it to finally dispose of it.

Wo suggestion of his death was made in that canse. He might, in his lifetime have brought it to an end by laying a rule, further proceedings or otherwise. After his death, his representatives might have suggested the death, and so compelled the complainants to make new parties, or to abate the suit. But it was not abated when the bill in this cause was filed, and was still pending, and part of the proceedings in it was the answer of George Hoblitzell admitting a balance due.

It must be considered as a continuing demand by the appellants, sufficient to save their claim from the bar of the Statute. We do not think that, under the circumstances of this case disclosed by the record, the appellees can avail themselves of the defence of laches, limitations, or lapse of time, and the presumptions therefrom arising. And we concur in the opinion of the Circuit Court, of August 18th, 1868, that the appellants are entitled to participate in the distribution of the proceeds of sale of the real estate, in this cause, to the extent of any portion of the debt that may still be really duo. Before determining- what portion of the debt, if any, is still due, it becomes necessary to pass upon the exceptions to the admissibility of the evidence of the appellants.

We do not think that they are competent witnesses in respect of the balance due. That question involves the transactions