Paisley v. Holzshu

Roberts, J., delivered the opinion of the Court. • This is an action of ejectment brought by the appellant against the appellee for an interest in a lot of ground in Cumberland. The appellant claims under a sheriff’s sale; and the appellee under a sale by trustees acting under the authority contained in a deed executed by James Gunning, who was seized of the fee-simple estate therein as hereinafter stated. The case was tried before the lower Court on an agreed statement of facts, without the aid of a jury. The facts are substantially as follows : (i).

On January 18th, 1883, Joseph M. Gunning confessed judgment in favor of Stevenson & Slingluff for the sum of $212.03, *n_ terest and costs ; that said judgment is a valid claim against the estate of Joseph M. Gunning, and is wholly unpaid. (2). That on the 21st of February, 1890, James Gunning executed a deed of trust conveying personal and real property to his three sons, John B., James H. and the said Joseph M. Gunning, who accepted said .trust, and at once entered upon the discharge of the duties as such trustees, and are (except said Joseph M., who has since died), still acting as trustees under said deed. (3).

That on February 21st, 1893, Stevenson & Slingluff caused a writ of fieri facias to be issued- on their said judgment, by virtue of which the sheriff of Allegany County levied upon the interest of said. Joseph M. in the real estate conveyed by said deed of trust and described in the declaration filed in this cause; the said Joseph M., however, moved the Court to ‘quash said levy, which the Court refused to do. (4). On 'the 15th of May, 1893, the said Joseph M. filed his bill of complaint in the lower Court as a Court of Equity, asking an injunction to restrain said judgment creditors and the sheriff from proceeding further under said execution, and at the hearing of said bill the same was dismissed.

(5). That James Gunning, the grantor in said deed of trust, died on February 28th, 1893. (6). On the 18th of August, 1893, said judgment creditors caused an attachment by way ³²⁷ of execution to issue out of said Court, and to be laid in the hands of said trustees, for the purpose of attaching all the rights and credits of the said Joseph M. in their hands.

(7). On September 13th, 1893, said judgment creditors caused a second writ of fieri facias to be issued on their judgment and levied upon the interest of said Joseph M. in the real estate conveyed by said deed, and which is situate in said county, and on January 27th, 1894, the sheriff sold the same at public sale, under and by virtue of said two several writs of fieri facias, to William D. Paisley, the appellant, and conveyed the same to him by deed duly executed and recorded. (8). On November 22nd, 1893, said trustees sold all said James Gunning’s real estate, including the property sued for in this case, under the power in said deed of trust, to several persons, among them the appellee, who became purchaser of the parcel now sued for ; that he took possession thereof, and is §till in possession, and said sales were reported to and duly ratified by the Court, said Stevenson & Sling-luff and the appellant not being parties to said cause wherein said proceedings were had.

(9). That on January 27th, 1894, said appellant demanded of the appellee possession of the interest of said Joseph M. Gunning in that part of said real estate sold him by said trustees, possession of which the appellee had previously taken, and the appellee refused to deliver up possession thereof, whereupon the appellant applied to the lower Court in Equity for the writ of habere facias, to which application the appellee filed his answer, and the Court, on June 4th, 1894, refused said writ. (10). That on June 29th, 1894, the appellant began this action against the appellee for the recovery of said interest in said real estate, and on September 20th, 1894, the appellee filed his bill of complaint in the Court below in Equity to enjoin the appellant from proceeding with said action, which bill is still pending.

The deed from James Gunning to his three sons, to which reference has been made, was before this Court in Byrne v. Gunning, 75 Md. 30 , and in that case will be found a full ³²⁸ statement of its contents, at least, in so far as will be necessary for the purpose of this case, so that we will not encumber this opinion with a statement of its contents. It is a very lengthy, involved and obscure paper, and as correctly observed by one of the learned counsel in his brief, “ It partakes more of the nature of a will than a deed,” in which the grantor says “ He is desirous of settling up and disposing of .his property during his lifetime.” Yet he adopted a plan by which he has rendered it almost impossible to accomplish his asserted purpose. There is but one question which we consider important to be decided on this appeal, and that is, did Joseph M. Gunning take such an interest or estate in virtue of the provisions of the deed from James Gunning to said Joseph and his two brothers, as could be seized and sold on execution ? The case in 75 Md., supra, was a bill in equity filed by James Gunning, the grantor, seeking to set aside said deed, on the ground that the deed did not conform to the directions given by the grantor for the drafting of it, and that it was executed by him in its present form, wholly by mistake.

This Court in the opinion delivered by Mr. Justice Bryan, had occasion to carefully examine the various provisions of the deed, especially with respect to the estate the grantee