Shidy v. Cutter

Miller, J., delivered the opinion of the Court. This appeal is from an order ratifying a sale of certain real estate in Prince George’s County made hy trustees in a deed from Charles T. Davis to them, dated the 21st of June, 1876, and recorded on the 3rd of July, following. It appears that Davis, afterwards, on the 9th of September, 1876, sold and conveyed the same land to the appellant, who purchased without actual, but of course with constructive, notice of the prior deed to these trustees, and exceptions to the ratification of the sale were filed hy him. The only questions raised hy these exceptions that need be noticed are,— First.

That the deed under which the sale took place was a mortgage requiring an affidavit as prescribed by sec. 29, Art. 24 of the Code. Upon this subject a number of decisions have been made by this Court which it is not necessary here to review. The present deed is substantially, if not identically, the same as the one which, in the case of Stanhope, et al. vs. Dodge, et al., 52 Md., 483, was held not to be within this provision of the Code, and that decision is conclusive of this question. Second.

That the consideration of the conveyance was different from that recited therein, and that the deed was, in fact, executed as an indemnity or security collateral to another and different transaction between Davis and Parker. The deed recites that Davis is indebted to Parker in' the sum of $5500, “ deferred payment of purchase money for the hereinafter described property,” and that for this sum he had passed to Parker his promissory note, dated the 27th of April, 1876, and payable in three years. The proof in the case fails to sustain this exception, even if it could avail the appellant were it true. ⁶⁷⁸ The testimony of Parker and Cutter, one of the trustees and who was cognizant of all the transactions between these parties, shows very clearly that the consideration of the deed was an actual and bona fide indebtedness as therein stated. Davis was not examined, and the testimony of the appellant is wholly insufficient to overcome that of the other witnesses.

Third. That the price at which the sale was made is grossly inadequate. The property sold for $6500, and the purchaser was Milton W. Shidy, a son of the