Niller ex rel. Hirschman v. Johnson

Craik, J., delivered the opinion of this Court. The appellant in this case filed her bill in the Circuit Court of Baltimore city, praying for an injunction to protect her separate property, which had been levied upon to satisfy a judgment against Conrad Hiller, her husband, in favor of the appellee, James H. Johnson. The appellant alleged in her bill that the goods and property levied upon were her separate property, and did not belong to her husband, Conrad Hiller, and was not answerable for the payment of his debts. The appellees answered her bill, denied the jurisdiction of the Court, but admitted that the property in controversy had been levied upon for the payment of a judgment of the appellee, Johnson, recovered against Conrad Hiller in the ¹⁰ Court of Common Pleas of the City of Baltimore ; that said judgment was a bona fide judgment against Conrad Niller, the husband, and that the property levied upon was the property of Conrad Niller, and denied that the appellant had any interest whatever in the same, and asked for the injunction to he dissolved and the bill dismissed.

Issue was joined and a commission issued, under ■ which a variety of testimony, both written and oral, was taken. The Judge of the Circuit Court, on the final hearing of the case, dissolved the injunction and dismissed the bill. The view which the Judge of the Circuit Court took of the case, dispensed with the necessity of his deciding the question of jurisdiction, hut as the want of jurisdiction was relied on in the answer of the appellees, we deem it our duty to declare the question of jurisdiction to he res judicata, since the decision in this Court in the case of Bridges and Woods vs. McKenna, 14 Md. Rep., 258 , recognized and affirmed in Lewis et al. vs. Levy, 16 Md. Rep., 85 . After these decisions, if we shall decide, upon examination of this case, that Eleanora Niller, the wife of Conrad, was the bona fide owner of the property levied upon, she was entitled to he relieved in equity, and have her property protected by a bill of injunction.

Having thus summarily disposed of the question of jurisdiction, we will consider the claim of the appellant to the goods and property in controversy, as her separate property. Erom. an examination of the evidence, we find she claims the property in virtue of two hills of sale. The first is a bill of sale from Conrad Niller, her husband, to William M. Willis, conveying the property therein mentioned, for the sum of three hundred dollars, and dated the 1st of November, 1862 ; this bill of sale was duly executed; the bona fides of it was supported by the affidavit required by law ; the second is a conveyance of ¹¹ the same property hy Willis to Eleanora Hiller, the wife of Conrad ; this hill of sale is dated the 4th of Hovemher, 1862, for the consideration of five dollars. These hills of sale were duly acknowledged and recorded.

By virtue of these hills of sale, the property vested in the appellant as her separate property, protected from the subsequent debts of the husband. Art. 45, sec. 1, of Code of Pub. Gen. Laws.

These conveyances are valid between the parties to them, and we find no sufficient evidence to impeach the bona fides of the hill of salo from Hiller to Willis or from Willis to Eleanora, the wife of Conrad. But admitting that they were voluntary conveyances, and that it was a gift from the husband to the wife, unless there is evidence of fraud in fact, the property cannot he reached by a subsequent creditor. This question was decided hy this Court in the case of Williams et al. vs. Banks et al., 11 Md. Rep., 198 . See also, Atkinson vs. Phillips, 1 Md. Ch.

Dec., 507 ; Unger and Wife vs. Price, 9 Md. Rep., 557 ; Mayor and City Council of Baltimore vs. Williams, 6 Md. Rep., 285 . Conceding this to he the law, the appellee cannot impeach and set aside this conveyance unless he can show that his claim was prior to the conveyance, and he a subsisting creditor at the time. Eor this purpose he has relied on the record of a judgment in the Court of Common Pleas of Baltimore in his favor against Conrad Hiller, the husband of the appellant, at May Term, 1864. The appellee, Johnson, claims for that judgment a conclusive effect on the question in issue.

The principle is