Thomas v. Farmers' Bank

Stewart, J.$ delivered the following concurring opinion: The merits of this case lie within narrow limits. It is an appeal from an order of the Court below in a proceeding in insolvency, and must be decided according to the principles of equity, (Code, Art. 48, sec. 10,) which clearly forbid the allowance of any lien on the land in question, or the proceeds thereof, under the circumstances, exceeding the one fourth part thereof surrendered and sold by the appellant to her brother, James R. Thomas, by virtue of the agreement of the 29th April, 1854. The counsel for the appellant referred us to the doqtrine and practice of the common law, relating to estates held in co-parcenary, converted into severalty by partition, with the right incident to owelty of partition, and also to analogies attempted to be deduced from our statute (Art. 47, sec. 51 of the Code) upon the subject of the partition of estates, making the bonds of the persons electing to take the estate, or any part thereof, a lien on the lands, for the purchase of which they-were given. Such considerations, whilst they furnish no rule controlling the question here involved, to be determined by the principles of equity, certainly give no countenance to the demand of the appellant. ⁷¹ Assuming that the bond given by her brother for the payment of the $6,244, with the retention of her legal title, was not the full performance of the stipulation of the agreement between them, to secure to.her the payment of the said sum, and as such, accepted by her, (which involves a proposition by no means free from difficulty,) the agreement of the 29th April, 1854, in regard to the division of the lands in question, and providing for the payment in money, by each of the parceners, for the several part alloted to each of. them, on account of the interest belonging to the appellant, if it did entitle her to a specific performance, inter partes, would not justify a Court of Equity in granting such relief, to the prejudice of the more meritorious claims of the creditors of her brother.

The rights of creditors cannot be impaired by any equitable claim not amounting to a specific lien, which she may have held against her brother, or the lands surrendered to him, unless, in some reasonable form, they had notice of it and could guard against its operation. Nelson vs. Hagerstown Bank, 27 Md., 51 . Ho such notice appears to have been given, but the appellant, on the contrary, relying upon the bond of her brother for the payment of the sum due to her, and the retention of her legal title, slept upon her rights, until the claims of her brother’s creditors, strangers to the equities existing inter sese under the agreement, had supervened, and hence this collision of claim between her and the creditors of her brother. Courts of justice will not encourage laches and give to parties, negligent in securing their rights, the benefit of equities inter partes, to the injury of others deluded by their omissions.

Would it be just, after the lapse of time, and the neglect of the appellant, to permit the enforcement of her claim, as a specific lien, on the proceeds of the property here involved, over the manifest equities of the creditors of her brother, and to postpone them in her favor ? Under the circumstances, the appellant has not shown any equitable claim to a specific performance of the agreement, to the prejudice of the demands of the appellees. ⁷² Her lien as the vendor of her interest in the lands allotted to her brother, whatever it' may amount to, according to the principles of equity, depends upon the extent of that interest, and grows out of the surrender'or sale thereof, under the-contract between the parties of the 29th of April, 1854, because the lien for‘the purchase money can only result from the sale of her interest in the lands allotted to her brother.' By this agreement, she, in substance ‘ and effect, contracted to surrender to-her brother-James her undivided fourth part of the'lands allotted to'him, to be held in severalty under the partition of the'whole estate, agreed to by the respective parties, being the parceners thereto entitled, and to look to him, and his allotted share in the lands, for the sum stipulated to be paid to her by him.- Under this division, her right as one of the parceners in the'entirety, must be treated in equity, undertaking to ascertain the character of her-lien, and to' leave the same to her-as reduced to an undivided fourth part in the three several allotments, which, by the operation of the contract between the parties, was to be held as the several estate of each, and as such liable to her incidental equity as the vendor. Certainly this is the only just construction to be given- to the agreement, by-a Court of Equity, whilst protecting and upholding her lién as the vendor'for' the purchase' money, to the- extent-of her interest. There can be-no question that' her lien, as vendor for the purchase money of’her undivided interest, is an equitable incident from-the sale thereof, commensurate with the right surrendered on the one side, and acquired by the other.

This is the result of the relation of vendor and vendee, aiid the right of-the vendee is qualified accordingly, and he and those claiming under him, have no perfect title to the property purchased, or the proceeds thereof, until the purchase money is paid; The appellant could have sold to her brother, or other party, her undivided interest in the whole estate, before any partition had been agreed upon, and her lien as vendor under ⁷³ such circumstances, would only have reached to that extent. The other parceners might also have sold their undivided interest, without partition and their several and respective liens, as vendors, would have been but co-extensive with said interest. After the partition, when the other three parceners became each entitled to the allotment in severalty by the operation of the contract of partition, her right as vendor attached upon each several estate in pursuance of the terms of the surrender and sale. Whilst the appellant was entitled to her lien on the part assigned to her brother James, she also held a like lien for the one-fourth part of the other two allotments.

In place of holding the lien, in its entirety, on the whole estate, the lieu was parcelled out by the agreement and made to consist of three several liens, each one applicable to each of the several allotments. This adjustment did not, at all, diminish the amount of the lien on the whole, but vested an equal portion thereof in every part into which the estate had been severed. Aggregating the several liens, if the appellant has the full benefit of her entire lien, upon what principle of equity can she be allowed more ? Would not a Court of Chancery, in giving her relief as vendor, be measuring out to her more than her lien as vendor, by the allowance of any further demand ?

By the contract., 'each one of the others was bound to secure to her the specified amount. Would it be right, in the face of the agreement so providing, to make them and their lands answerable as co-sureties for the performance of the stipulation of each, in utter defiance of the express terms of the contract? Such would be the effect, if the lands of the others, were to be encumbered with the obligations of each. According to the principles of equity, her lieu as vendor cannot be construed, from the terms of the division and allotment of the lands and the nature of the division, entitling each parcener to hold his portion in severalty, or by any interpretation of the contract, between ⁷⁴ the parties stipulating^ for the payment of the given sum by each, or upon any principle of co-parcenary, each parcener holding per my et per tout, to amount, to more than the undivided fourth part in the lands, assigned and- surrendered to her brother James.

Any different theory as to the character and extent of her lien as vendor, would necessarily result in a conflict with the just and. equal lien of the other parceners, in case they had surrendered their undivided interest without-an equivalent, and would not be in accordance with the agreement of the parties. The allowance to her, the lien for the purchase money arising from the sale of her undivided fourth interest, concedes the same right to her co-parceners, recognizes the validity of the contract of division, gives to the appellant the benefit of her just lien in the proceeds of the property of her brother and rejects the meritorious claims of the other parties concerned. I fully concur in the opinion of the Court, that the order below must be affirmed. Alvey, J., delivered the opinion of the Court.

The real estate descended from Mrs. Eliza Thomas, the widow and sole devisee of the late Governor James Thomas, to her four children, was, by agreement and through the agency of mutual friends, on the 29th of April, 1854, partitioned and allotted to and among three of them only, the appellant being the fourth, and who, in consideration of a certain sum in gross, to be paid to her by each of the other heirs, agreed to surrender to them all her interest in the several parts of the real estate allotted to them respectively. At the time of making the division and allotment, all the heirs, including the appellant, entered into mutual covenants of ratification, whereby they declared themselves to be satisfied and content with the division and allotment made, and thereby covenanted and agreed, each with the other, to “ stand to, abide by, and carry into full effect the said award, division and allotment, and to make and give, each to the other, and ⁶⁴ all to each, any and all assurances, conveyances, deeds, or other instruments, which, may at any time hereafter, become necessary to the fulfilment of said award, division and allotment, according to the true intent and meaning thereof; Elizabeth Thomas (the appellant) to have secured to her by each of the other parties hereto, in consideration of the surrender, by her hereby made, of all her interest in said estate to them, in manner as specified in the aforesaid division, the sum of six thousand two hundred and forty-four dollars.” At the same time, James R. Thomas, one of the heirs taking the real estate, executed to his sister, the appellant, his penal bond, without surety, conditioned for the payment of the sum of $6,244, with interest, “in consideration of the aforesaid surrender of her fourth part of the property aforesaid.” This money, thus secured by the bond, has not been paid, and the appellant has never made a deed of conveyance to her brother for the fourth interest in the part of the real estate alloted to him, though the other heirs have .conveyed to' him, in pursuance of the partition. And since these transactions, James R. Tilomas has become insolvent, being indebted to various persons besides the appellant — to some by judgment, and to one by mortgage of the real estate assigned him by partition— and all of such real estate, so assigned and allotted to him, having been sold by insolvent trustees, the proceeds of sale are in Court for distribution among creditors, among whom is the appellant, who exhibits her claim, evidenced by the covenant and bond before referred to, and insists that it constitutes a lien, not only on the one-fourth interest surrendered, to her brother, but on the whole of that part of the real estate allotted to him by the award of partition; and that such lien has priority and