Philbin v. Thurn

McSherry, C. J., delivered the opinion of the Court. An attachment on original process was issued out of the Superior Court of Baltimore City at the suit of the appellee, Thurn, against the appellant, Philbin, as an absconding debtor, and later on the short note was amended by an entry of the case to the use of Mr. Vernon Cook. Both the attachment and the short note case were thereafter on motion and affidavit of Philbin, who had previously appeared and pleaded, removed to the Baltimore City Court where the short note case was tried before a jury. The trial resulted in a verdict for the plaintiff.

A motion in arrest of judgment was then filed. It was overruled and judgment was entered on the verdict and from that judgment this appeal was taken. During the progress of the trial eleven exceptions were reserved. The first and eleventh relate to rulings on the prayers, the remaining nine involve questions pertaining to the admissibility of evidence.

The suit is founded on a covenant to pay rent. Under a lease executed by Neal O’Donnell and Hugh O’Donnell, of the first part, and the appellant Philbin', of the second part, the latter covenanted to pay to the former in equal semi-annual installments a yearly rent of six hundred dollars for certain premises situated in Baltimore City. In July, 1903, Thurn acquired the title of the lessors, and the rent which fell due in September of that year and in March; 1904, not having been paid, an attachment was issued against Philbin as an absconding debtor. Under circumstances which will be mentioned in a moment the cause of action was assigned to Mr. Cook, and the short note case was proceeded with in the name of Thurn for the use of Cook.

To avoid the prolixity and repetition that would unavoidably result from a separate discussion of each of the questions raised by the nine bills of ex ³⁴⁴ ception which relate to the admissibility of evidence, a statement of all the material facts contained in the record — both those which are not challenged as well as those which are objected to — will be now made, and then the relevancy of the evidence and the propriety of the rulings on the prayers will be considered. Hugh O’Donnell and his brother Neal O’Donnell, both of whom were residents of the city of New York, owned a property known as the “Mansion House” and situated on Gay street in the city of Baltimore. In February, 1898, they leased the premises to the appellant Philbin for the term of ninety-nine years, reserving a yearly rent of six hundred dollars. Hugh O’Donnell made his will and devised all of his real estate to his brother Neal.

He then died leaving Neal surviving him. Neal also made a will by which he gave and devised his property to certain trustees to sell the real estate at public auction or private sale, and on such terms as to them might seem, just for the uses and purposes named in the will. The executors who were appointed by that will were the same individuals who were constituted trustees thereunder. After he had made his will Neal O’Donnell died.

Both wills were duly admitted to probate in the Surrogate Court for .the county of New York, and letters testamentary were, granted to the executors named therein. Duly authenticated copies 'of the wills were recorded in the office of the Register of Wills of Baltimore City. A deed was executed in July, 1903, by William F. Clare, Andrew J. Toland and Patrick M. Carolan, conveying to the appellee Thurn the Mansion House property. Under this deed Thurn claims the rent reserved in the lease already alluded to.

The deed purports to be made by the grantors as executors of the last will of Neal O’Donnell. Under the will of Neal O’Donnell the executors were not clothed with a power of sale, but the trustees, who were the same persons, were fully authorized to sell the real estate owned by the testator. A confirmatory deed signed by the same grantors in their capacity as trustees was subsequently executed. Whether those ³⁴⁵ deeds or either of them vested a title in Thurn is the main question in the case.

In August, 1903, Philbin filed a bill in the Circuit Coiirt of Baltimore City against the trustees named in the will of Neal O’Donnell and against Thurn alleging that he, Philbin, was a creditor of Hugh and Neal O’Donnell, and that the decedents owed him a large sum of money for his services in managing the Mansion House. He asserted that he was the owner of the leasehold interest, and he prayed for a sale of the property so that his claim ’might be satisfied out of the proceeds. The trustees answered the bill and disputed Phil-bin’s ownership of the leasehold interest and denied the validity of his claim for compensation. Philbin insured the improvements against loss by fire and after the buildings were destroyed in the great disaster of February 7th, 1904, he collected the sum of ten thousand dollars, the amount of the policy which he held.

A cross-bill was filed by the trustees setting up a claim to the proceeds of the insurance policy, and an injunction was granted restraining Philbin from withdrawing the insurance money from bank and restraining the bank in which it was deposited from paying it out. Finally the counsel of the various parties met to adjust the litigation by compromise. Mr. Vernon Cook represented Philbin, Mr. Harman was counsel for Thurn and Mr. Whelan for the trustees. It was agreed that Philbin should abandon his claim for compensation, that the trustees should relinquish their claim to the insurance money and their attack on the validity of the lease, and that Philbin should pay Thurn the two installments of rent then due and also the costs of the equity case.

Phil-bin offered his check for the six hundred dollars due Thurn for rent, but Mr. Harman refused to accept it. The check was then destroyed and Mr. Cook stood responsible to Mr. Harman for the six hundred dollars due by Philbin and took Philbin’s check for that sum. Philbin fully understood that Mr. Harman would not trust him, and he knew that Mr. Cook had made himself responsible for the rent upon the faith of Philbin’s check to Cook. An agreement was then signed to dismiss the bill and the cross-bill, and as it was late in the ³⁴⁶ afternoon Mr. Cook did not have an oppdrtunity to get Phil-bin ’s check certified or cashed.

An order was procured from the Court dissolving the injunction that same evening. The next morning when Mr. Cook presented Philbin’s check to the Canton Bank he found that Philbin had stopped payment of the check, and had withdrawn all the money he had on deposit and had left the city. - Mr. Harman then sued out for Thurn an attachment against Philbin as an absconding debtor and later on Mr. Cook paid to Mr. Harman the six hundred dollars for which he had stood responsible, and the attachment and short note case were" thereupon entered to Mr.Cook’s use. The short, note case is now before us. Out of the aforegoing facts the several questions presented by the eleven bills of exception have arisen.

They all however involve but two inquiries in addition to a third which th¿ motion in arrest of judgment brings up. Without particularizing it may suffice to say that the two inquiries which embody all the objections contained in the eleven exceptions are these, first was there error in admitting in evidence the deed .and the confirmatory deed to Thurn; secondly, was the trial Court wrong in permitting the records of the equity case and the oral testimony of Mr. Cook to be considered by the jury? The first inquiry turns entirely on the interpretation of sec. 221 of Art. 16 of the Code of 1904. That section reads as follows; “Every trustee to whom any estate, real, personal or mixed shall be limited or conveyed for the benefit of creditors, or to be sold for the benefit of .creditors or to be sold for any other purpose except upon a contingency, shall file with the Clerk of the Court in which the deed or instruments creating the trusts may be recorded, a bond in such penalty as the clerk may prescribe, being as nearly as can be ascertained double the amount of the whole trust estate, and with sureties to be approved by the clerk, conditioned for the faithful performance of the trust reposed in such trustee, which bond shall be retained and recorded in the office of said clerk, and no title shall pass to any trustee as aforesaid until such bond shall be filed and approved as aforesaid, and no sale made by any ³⁴⁷ such trustee without such bond shall be valid or pass any title to such property or estate.

If the trust estate consists of real property or of real and personal property, situated partly in the county or city in which the grantor resides and partly in one or more other counties, it shall be sufficient that a bond has been accepted and filed in the county of the grantor’s residence; if the trust estate consists entirely of real estate in a county or counties other than of the residence of the grantor, it shall be sufficient that a bond has been accepted and filed in the county in which the deed has been first recorded.” If the above quoted section applies to trustees appointed by wills and is not wholly confined to trustees appointed by deeds, then, inasmuch as the trustees named in the will of Neal O’Donnell did not give bond in Maryland, no title passed to them and they could convey none to Thurn. Hence the question is, Does the section apply to trustees appointed by wills? We are of the opinion that it does not, and the reasons in support of that conclusion are quite