Tyner v. Johnson Ex Rel. Glennan

⁶²⁸ Briscoe, J., delivered the opinion of the Court. We cannot agree with the learned judge who decided this case, in the Court helow, in holding, upon the record now before us, that the deed here in question, should he vacated and annulled, upon the ground of fraud. The grantor and grantee in the deed, are the defendants, and the plaintiff is a judgment creditor of the grantor, one of the defendants. On the 5th day of June, 1908, the defendant Tyner and wife conveyed by deed to the defendant, Windom, lots Nos. 16, 17 and 18, in Block No. 1, in North Kensington, Montgomery county, Md., together with the buildings and improvements thereon.

The consideration of the deed is stated to he the sum of one hundred dollars. This deed was properly executed and was recorded on the 18th day of September, 1908, among the T^and Records of Montgomery County. On the 3rd day of June, 1910, the appellee filed in the Circuit Court for Montgomery County a bill of complaint against the appellants alleging in substance that the deed was fraudulent, as against the plaintiff creditor and that the consideration was false and pretended. The bill charges that the defendant Tyner, is a judgment debtor of the plaintiff to the extent of seven hundred and thirty-five dollars and fifty-six cents and costs on a judgment obtained by her agaiust him, on the 2nd day of May, 1910, in the Circuit Court of Montgomery County, and that the judgment was on the day of May, 1910, duly assigned to one John W. Glennan, of Washington, D. O. The hill, then, avers, that the transfer and conveyance of the property in question, was fraudulent, made without a valuable consideration and was made for the purpose of defrauding the plaintiff, and preventing the collection of the judgment debt due her; that the defendant Windom. holds title to the property thereby conveyed for the use and benefit of Tyner, under a secret trust; that the deed of the property is in fact a deed in trust and that the defendant. ⁶²⁹ Tyner, is the beneficiary thereunder having conspired with Windom for the purpose of defrauding her, and evading the payment of the judgment debt and his creditors, and that all of the facts connected with the transfer and conveyance of the property are peculiarly within the knowledge of the defendants.

The bill further avers and charges that the defendant Tyner and wife, occupy'and live on the property in question, at the present time as their homo and which has been their home for a number of years, and that the property, is subject to a deed of trust, dated the 5th day of November, 1902, to secure a debt of seven hundred and fifty dollars due by Tyner and wife to one Elmer A. Eorbes. The prayer of the bill is that the defendants be required by answer, to disclose and discover whether the deed and transfer was a bona fide sale, for a valuable consideration, what said consideration was, what the respective interests of the defendants are in the property and the ownership between them; secondly, that the deed be decreed to be a deed of trust for the use and benefit of the defendant Tyner, and that an injunction be issued restraining the defendants from selling or disposing of the property in any way pending the determination of the case; thirdly that a receiver be appointed to take charge of all of the property pending the litigation; fourthly, that the property be decreed to be sold and the proceeds be applied to the payment of the plaintiff’s debt, and, fifthly, a prayer for general relief. The defendants fully answered the bill, and denied the averments of fraud and the want of consideration in the deed, as alleged by the bill and denied any intent on the part of either the grantor or grantee, to defraud the plaintiff. The answers fully disclose the facts of the entire transaction between the grantor and grantee, and all of the circumstances attending the sale and purchase of the property.

By the answer of the defendant Tyner, it is stated, that he purchased the property from Elmer A. Eorbes in October, 1902, for the sum of $1,800, subject to a purchase ⁶³⁰ money mortgage of one thousand dollars due thereon to the predecessor in title of Eorhes. That he paid the sum of fifty dollars in cash, assumed the payment of the mortgage of $1,000, and executed a second mortgage to Forhes for $750. He sold the property to the defendant Windom for the sum of six hundred dollars, subject to the two mortgages and received the sum of two hundred dollars in cash and the payment of an antecedent debt of four hundred dollars due by him to the purchaser Windom. He denies all intent and purpose to defraud the plaintiff and avers that the sale was made in good faith, and for a valuable consideration.

He denies that the property is held by or on any trust, secret or otherwise, for his use, and that he subsequently took possession of it, after the sale, as tenant under an agreement to rent the property, that he did not reside upon the .property, at the time of the sale, and had only resided there previously for a period of four months during the winter of 1904-1905, while making certain repairs thereon. He further avers that he had good and just reasons for disposing of his equity in the premises, but his principal object in making the sale of the property here involved was not to hinder or delay the complainant in the collection of her alleged debt, but was to raise money to enable him to bid at a sale of the farm property on which he then resided and which was then shortly to be sold under a decree of the Court therein pending between other parties. He denies the indebtedness claimed by the plaintiff and alleges that the judgment was obtained against him, under circumstances, that make it an inequitable claim and should not commend itself to a Court of Equity. He also avers, that the sum paid for the property was fully