Mitchell v. Indian Head State Bank

Oeeutt, J., delivered the opinion of the Court. Prior to June 18th, 1918, Walter J. Mitchell, Leo K. Earrall, and Walter H. Thomas entered into an oral agreement under which (1) they were jointly to purchase for $2,000 a tract of timber land in Charles County, (2) each ¹⁹⁴ was to pay one-third of the purchase price, (3) the deed was to be taken in the name of Thomas, who (4) was to convey to Mitchell and Earrall, upon demand, a two-thirds interest in The property. To secure the purchase money, the three executed to the Charles County Bank of the Eastern Shore Company their joint demand promissory note for $2,000, and the proce'eds of that note were delivered to Thomas, who bought the land and who took the title to it in his own name, under a deed from F. Stone Posey, trustee, et al., dated June 18, 1918. On March 9th, 1920, Thomas borrowed from the Indian Head State Bank $4,800 on his promissory note, secured by a confessed judgment entered on the judgment records of Charles County on the same day against him in favor- of the bank.

On January 14th, 1922, Thomas, by his deed'of that date, pursuant to his agreement with them, conveyed to Mitchell and Farrall a two-thirds undivided interest in the property which had been conveyed to' him by Posey et al. on June 18th, 1918. On January 3rd, 1922, an execution was issued on the judgment and on September 9th, 1925, a second writ of fieri facias was issued thereon. So far as the record discloses, no return was ever made on either writ, but on October 6th, 1925, Joseph H. Howard, the sheriff of Charles County, executed the following deed: “This Deed made this 6th day of October, in the year 1925, by me, Joseph H. Howard, 'Sheriff of Charles County, Maryland. “Witnesseth —That by virtue of a writ of execution issued out of the Circuit Court for Charles County, Maryland, dated the 9th day of September in the year 1925, in a ease in said Court of the Indian Head State Bank a body corporate, versus Walter H. Thomas, I, the said Joseph H. Howard, as Sheriff of said Charles County, Maryland, has sold to the said The Indian Head State Bank, a body corporate, the following property to wit: ¹⁹⁵ “All that tract, piece, part or parcel of land and premises lying and situate in the Third Election District of Charles County, Maryland, known as ‘Locust Grove’ and ‘Dunnington Place’; * * * containing 225 acres of land, more or less; being the same land and premises which was conveyed to the said Walter H. Thomas, by Deed from E. Stone Posey, Trustee, dated the 18th day of June, in the year 1918, which said Deed is recorded among the Land Records of Charles County, Maryland, in Liber W. M. A. Ho. 23, folio 197. “How, Therefore, I, Joseph H. Howard, Sheriff as aforesaid do hereby grant, bargain, sell and convey unto the said The Indian Head State Bank, a body corporate, its successors and assigns in fee simple in consideration of the premises and the sum of Eive Hundred Dollars ($500.00) all the right, title and interest of the said Walter H. Thomas, in the hereinbefore Writ of Execution in and to the said hereinbefore described land and premises.” While that deed recites that the grantor had “sold” to the grantee the property described in the deed from Posey, trustee, et cti., to Thomas, in the granting clause he conveys “only the right, title and interest of the said Walter H. Thomas in the hereinbefore Writ of Execution in and to the said hereinbefore described land and premises.” Thomas had of course no interest in the writ of execution, but no objection was made in the trial court as to the form of the deed, or to the right of the sheriff to execute the second writ. Hor has any been made in this court, but the deed was treated there, and, in the absence of any such objection, will be accepted here, 'as sufficient to convey the interest of Thomas, whatever it may have been, in the property.

On August 10th, 1926, Senator Mitchell and Leo K. Ear-rail filed in the Circuit Court for Charles County, in equity, their bill of complaint against the Indian Head State Bank,