Reck's Exor. v. Reck

Pearce, J., delivered the opinion of the Court. The bill in this case was filed October 4th, 1907, by Henry Reek against his son, Chas. F. Reck, in the Circuit Court for Carroll County. It alleges that the plaintiff on April 12th, 1897, was seised of a tract of land in Carroll County mentioned in the bill and described in a deed filed therewith, as containing twenty-three acres and three perches, more or less.

It then charges that Charles F. Reck, using his influence on the plaintiff, who was then seventy-five years of age, and intending thereby to obtain the plaintiff’s said property for himself, represented to the plaintiff that said property was in danger of being seised and executed upon by pretended creditors of the plaintiff, and that he would be thus subjected to litigation and costs, and so induced the plaintiff to execute to said Charles F. Reck, on April 12th, 1897, a deed for said tract of land described as above stated, upon the agreement between them that said. Charles F. Reck would,, on demand, reconvey said property to the plaintiff, provided he had not been required to apply the same to the payment of any debt of the plaintiff existing on the date of said deed; that said land was not then or since subject to the payment of any claim against the plaintiff, and that said Charles F. Reck was not required to pay and did not pay any money whatever for the plaintiff, and that the representations so made by said ⁴⁹⁹ Charles E. Reck as the inducement for said conveyance to him were wholly false and without foundation, and solely made for the purpose of obtaining the said property of the plaintiff; that the consideration expressed in said conveyance was utterly false, and no money was ever paid cr promised to be paid for said property, nor was anything of any value ever paid or promised therefor; that he always retained the control and possession of said property until about three months before filing this bill, when the infirmities of old age' compelled him to remove to Baltimore, being then eighty-five years of age; that he had frequently demanded a reconveyance of the property, which was always refused, though at one time said Charles E. Reck delivered to him the original conveyance above mentioned, pretending that it operated as a reconveyance, but still refusing to malee a proper conveyance of the legal title; and that he had at that date advertised said property in his own name to be sold on October 5th, 1907; that said property was the plaintiff’s sole means of support, said Charles E. Reck having, without right or authority, caused all the plaintiff’s personal property to be sold and disposed of. The prayer of the bill was (1) that the said conveyance be declared null and void and be set aside; (2) that Charles E. Reck be required to execute a proper reconveyance of said property to the plaintiff, or in lieu thereof that a trustee be appointed to take charge of and sell the same for the benefit of the plaintiff, and in the meantime to hold the same subject to the final decision of the Court in the premises; and (3) that said Charles E- Reck be enjoined from selling or controlling said property, or exercising any acts of ownership or authority over the same. An injunction was issued accordingly on the same day, with the usual leave to move for a dissolution upon filing an answer.

On November 1st, 1907, Chas. E. Reck demurred to the whole bill, insisting that it appears from the face of the bill that the plaintiff executed the conveyance for the purpose of defrauding his creditors, ;and that he is consequently not ⁵⁰⁰ entitled to relief in equity. Upon á hearing on the demurrer it was overruled by Judge Thomas, who held that upon the allegations of the bill, admitted by the demurrer, “the ease presented was not one of conspiracy on the part of the father and son to defraud the creditors of the-former, but of fraud and imposition on the part of the son, whereby hé acquired, without any consideration, the property of the father; that the act of the plaintiff which the defendant contended was-fraudulent and disentitled him to relief was not his free and voluntary act, but was induced by the fraud, undue influence and imposition practiced upon him by the defendant, and they cannot therefore be said to be in pari delicto, in which case the party imposed upon will be relieved in equity;” in support of which there was cited Roman v. Mali, 42 Md. 513 ; Brown v. Reilly, 72 Md. 489, and Highberger v. Stiffler, 21 Md. 338 . This demurrer was overruled February 8, 1908, and no appeal was taken from that ruling. .

Consequently it cannot be reviewed in this Court. Chappell v. Funk, 57 Md. 465 ; Hyattsville v. Smith, 105 Md. 321 , But if it could be reviewed, we should not hesitate to affirm the ruling for the reasons stated in the opinion filed in the Circuit Court. While this demurrer was pending the plaintiff filed a petition in the cause, alleging that he and his brother, Chas.. F. Reck, were the only persons in any event interested in the property; that neither of them were able, even if authorized, to give personal attention to the property, which was producing no revenue, and that it would be to tbe advantage of both that a’trustee should be appointee! to sell the same, and hold the proceeds subject to the order of the Court upon determination of this suit.

Chas. F. Reck answered, this petition, admitting all its allegations and consenting to such sale, and on February 13th, 1908, D. X. Henning and Charles O. .Cleinsón were by an order or decree of Court appointed trustees to make such sale, the proceeds to be held subject to the further order of the Court, but it does not appear that.the trustees have made any sale. ⁵⁰¹ On March 5th, 1908, Chas. E. Beck answered the plaintiff’s bill, denying all the allegations of fraud, or of the exercise of undue influence in obtaining said conveyance from his father, and denying any agreement or understanding with his father for the reconveyance thereof to him upon any contingency whatever. He averred that his father was indebted to him at the time of the execution of the conveyance to an amount equal to the consideration named in said deed, viz, $1,000, and that this consideration was true and bona fide.

He admitted that his father continued to reside on the property and to control and use the proceeds as his own until September, 1907, but alleged that this was by his permission and that he paid all taxes on the property since the execution of the deed. He denied that he ever surrendered said deed to the plaintiff or reconveyed or pretended to reconvey the property to him, and alleged that the plaintiff took possession of the deed without his consent, and after he had recorded it in good faith, and also denied that he had sold the plaintiff’s personal property or had received and retained the proceeds of any sale thereof, and alleged that the proceeds were paid to plaintiff’s wife, his step-mother, since deceased. Issue being joined, the plaintiff proceeded to take testimony to support the allegations of his bill, he being the first witness sworn. We were informed at the argument that the sole purpose of producing him as a witness was to show his utter mental incompetency, and his testimony abundantly demonstrates that at the time it was taken, he was hopelessly incompetent.

He could give no intelligible account of the transaction which led to the conveyance or of any question asked him. He said he signed the deed, but did not know why he did so; that he’ owed Ohas. E. Beck nothing at that time that he knew of, and never received anything for the deed that he knew of, and he did not know anything that was said at the time. He could not remember that he had ever been in Eranklin Square Hospital though he was there some time in September, 1907, nor that he had even been at Bay View Asylum, though he had been there several months just ⁵⁰² before testifying, and was brought from that place the day before he testified, for that purpose.

He thought he was then living at Union Bridge, in Carroll County, and that he was working there without wages for a man whose name he did not know. The only value of his testimony, or more accurately, his examination, was to show that he was incapable mentally of testifying. The requisite proof therefore to sustain the bill must be found, it at all, elsewhere. • J ames C. Eeck, another son of the old man who lived in Baltimore testified that his father was eighty-six years of age at that time; that in July, 1907, he fell In the hay mow on that farm and dislocated his hip, and that he then went to the Franklin Square Hospital in Baltimore where he remained eleven weeks — that witness then took him to witness’ house in Baltimore, where he remained three months and then was sent to Bay View Asylum — where he had been ever since except the day he testified at Highlandtown, in Baltimore County, and that he had never been at Union Bridge since July, 1907;. that when he first came to the hospital at Franklin Square and until a short time before he left witness’ house, his mind seemed all right, but afterwards gave way, as shown in his examination; that his father had $26.50 when he went to the hospital, which he handed witness, and which with $55.00 supplied by witness and $80 paid him by Chas. F. Eeck from sale of horse and cow was all used for his father’s benefit at the hospital; that he was sent to Bay View after he had been three months at witness’ house, because witness’ wife could not manage him, and witness could not leave his employment and stay at home to attend to him.

He also testified to a conversation he had with- Chas. F. Eeck in May five years previously, at witness’ house in Baltimore, when he came there to see a doctor; he said: “My brother, Chas. F. Eeck, told us my father was on a note as security for Henry Hull; that he thought my father would have it to pay and that he persuaded my father to transfer the farm to •him, and that he would get him off the note, and afterwards ⁵⁰³ would transfer the place back to him. He told me he had done this to save him paying the note; then he told me that after he had got him off that he had returned the place back to my father; that it had not cost him anything; that he hadn’t anything in the place and everything was all right between him and pap; and that my father did not owe him anything at the time the deed was made.” On cross-examination he testified that in the fall of 1907, Chas.

F. Keck told him at Snouffer’s livery stable that if he (witness) would give him what he had in the place, he would turn it over to him, and said he had $1200. in the place, but witness told him he had not 1200 cents in it. He also testified that when his father was in the hospital he told him to take charge of his deeds which were in a bureau drawer at Union Bridge, and he went there and got them, and that the deed then shown him from his father to Chas. F. Keck filed as Exhibit 1 with the bill, was one of the deeds he took from that bureau drawer. Catherine S. Keck, wife of James O. Keck, was present at the conversation testified to by him at their house in Baltimore and confirmed his testimony as to the statement made by Chas.

F. Reck. Jeremiah Reck, an uncle of Chas. F. Keck, testified that about four years before that time he had a conversation with Chas. F. Keck about the matter, and then asked him if he had ever deeded the farm back to his father, and he said he had, but that his “father had failed to have the deed recorded and he can’t do it no more and I intend to leave it that way while he lives, and then I intend to settle it up straight, unless his wife comes in for more than she ought to have, then I will stop her.

He told me the property was his father’s.” Wilson L. Crouse testified that he had been tax collector for nine years in that district and knew the farm in question. He said that Henry Keck paid him the taxes on that farm for all except the last two years, and he identified receipts given by him for these payments. He also said Chas. F. Reck paid the taxes for the last two years, and that the prop ⁵⁰⁴ erty was assessed to Chas.

E. Keck on witness’ tax hook for 1907. Hezekiah Baker testified that he had known both parties for fifty years; that about twenty-five years before, Henry Keek owed Chas. E. Keck a note of $75 for guardian money due him. Henry asked his son if he needed the money.

He replied: .“I don’t just need it, but I.can make — . Then Henry counted down and gave the $75.00 to Charles and Charles said: I can’t just put my hand on the note but I will give it to you some other time. After that Charles brought suit against Henry, who would not pay the note because he had paid it before. Charles had counted