Talbott v. Leatherbury

Schmucker; J., delivered the opinion of the Court: This is an appeal from a decree which set aside a deed as fraudulent because it hindered and delayed the creditors of the grantor. On the 28th of April, 1898, the appellant, William H. Talbott, jointly with his wife conveyed a parcel of land lying in Anne Arundel County, subject to a mortgage to C. Morris Cheston, in trust to hold it for the use of Talbott’s six 'children named in the deed until the youngest of them became twenty-one years of age. The trustee was by the terms of the deed directed to collect the rents of the property and after defraying taxes and expenses to pay over the net income to the children, and he was given power to mortgage or sell the property whenever he should deem it necessary to do so for thé protection of the estate or the parties interested in it. The deed was duly executed and acknowledged and was promptly recorded.

It did -not contain an acceptance of the trust on the part of the grantee but the record contains evidence that he had knowledge of and assented to its execution. The trustee Cheston, died during the year 1898 without having filed any bond or having entered upon an active discharge of the duties of his trust. On April, 28, 1899, during the vacancy in the trusteeship, caused by Cheston’s death, the appellees filed the creditor’s bill in the present case, averring that Talbott had made the deed of trust to Cheston without the knowledge or assent of the latter and without consideration for the purpose of stripping himself of all his property in order to hinder, delay and defraud his creditors. The bill prayed that the deed might be set aside and the property conveyed by it sold for the benefit of Talbott’s creditors.

H. S. Ridout, the mortgagee of the land, was made a co-defendant to the suit, but neither the cestuis que trust nor the heir at common law of the deceased trustee were made parties. ¹⁶⁸ The appellants answered the bill admitting the indebtedness of Wm. H. Talbott to the appellees and the making of the deed of trust by him and his wife to Cheston, but denyingthe other allegations of the bill. No demurrer was filed to the bill nor did the answer set up the defense of the want of proper parties to the case, but the opinion of the Circuit Court, which is in the record, shows that objection to the non-joinder of the cestuis que trust and the heir of the trustee in the suit was made by counsel in the argument and was passed upon by the Circuit Court. Ridout, the mortgagee, also answered the bill admitting the existence of his mortgage, but neither admitting nor denying the other allegations.

The Circuit Court being of the opinion that the deed of trust was one of those contemplated by sec. 205 of Art. 16 of the Code, held that no title passed to the grantee, because of his failure to comply with the requirements of that section by filing a bond, and that therefore neither his heir nor the cestuis que trust were necessary parties to the case. That Court being also of the opinion that the deed was made with intent to hinder and delay the creditors of the grantor passed the decree setting it aside and directing the property to be sold for the payment of his debts. We think that the bill of complaint was defective for want of proper parties. The deed of trust from the appellants to Cheston was regular in form and was duly executed and recorded and was thereforqprima facie a valid deed.

The testimony in the case does not support the allegation of the bill that the deed was made without the knowledge or consent of the grantee, but so far as its bears upon that question the evidence tends rather to establish the fact of such knowledge and consent on his part when the deed was made although it indicates that after his interview with the appellee Leather-bury, he showed a disinclination to continue to act as trustee. The deed may have been fraudulent in fact and may