Price v. Merchants' Bank

Bartol, C. J., delivered the opinion of the court. The appellant filed two exceptions to the ratification of the auditor’s account B and supplemental account B, by which a proportion of the trust fund was allowed to the appellee. The second exception is based upon a statement which has been disproved by the testimony of Messrs. Waters, Frick and Emory, all of whom unite in proving that the ^filing of the appellee’s claim was known to the appellant before he paid the money to the creditors, among whom the fund had been distributed by account A. Whether known to him personally, which it is hardly possible to doubt, is not material; it is shown conclusively that it was well known to his solicitor in the cause, whose knowledge must be imputed to the appellant, and precludes him from all equitable claim to protection by reason of his having paid over the money to the other creditors.

This exception to the allowance of the appellee’s claim has been virtually abandoned on this appeal. No point is made upon it in ³⁷⁵ the brief of the appellant; and in the face of the positive evidence in the record, this exception could not be for a moment considered. By the terms of the deed of trust the fund was expressly appropriated to the payment of the debt due to the appellee, which is named among the preferred creditors. The trustee had notice therefore on the face of the deed of the appellee’s claim, and after it had been filed in the cause, with full notice thereof, and without waiting for the court’s order, he went on to pay the money to other creditors.

The evidence clearly shows that such payment was not made in good faith; but was the result of an arrangement or compromise made by the trustee for his own benefit with the other creditors, without the knowledge of the appellee and in utter disregard of its rights. It is very clear, upon principles of the plainest equity, that the appellant can claim no exemption on account of payments made under such circumstances; and that he must be treated, so far as the rights of the appellee are concerned, as if the fund was still in his hand; unless he can claim relief by reason of the ratification of account A. This raises the question presented by the appellant’s first exception, the only one that seems to be relied on in the argument. The report of the auditor and account A, was finally ratified on the 15th of February, 1864. No further proceedings were had until the term had elapsed, whereby the order had become enrolled, and the rights of parties ascertained *and determined.

Marbury v. Stonestreet, 1 Md. 158 ; Tomlinson v. McKaig, 5 Gill, 256 . The general rule is that “ after a decree has been enrolled, the court will not entertain any application to vary it, except upon consent of all parties or in respect of matters which are of. course.” Lovejoy v. Irelan, 19 Md. 56 ; Williams v. Banks, 19 Md. 528 . How far this rule is applicable to decrees or orders distributing a fund in court, has not been precisely determined in this State. In Marbury v. Stonestreet, 1 Md. 158 , it seems to have been decided that such an order after enrolment cannot be vacated upon petition, but that an original bill or bill of review would be necessary.

All the authorities concur in asserting the principle that where the fund remains in