Wampler v. Wolfinger

Eccleston, J., delivered the opinion of this court. The appellant insists, that the decree ill this case is erroft'feóús, and should be reversed, because it excludes him from any opportunity of being reimbursed for any purchase money paid by him. Such an opportunity’he claims as his right, under the authority of Long vs. Long, 9 Md. Rep., 348 . But, in that case, it appears Ludwick Long, the party charged with committing the fraud, had executed niné promissory-notes of $100 each, to Henry Long, who was said to be defrauded.

The bill mentions' these notes as having been given, and then states, that immediately afterwards they weré taken from Henry by Ludwick, Or his sons or agents; and were kept in his or their possession; that after Henry’s death, Ludwick administered upon his estate, and if he had charged himself with these notes, in his account in the orphans court, it had been with the' fraudulent intent of endeavoring to make good his title to the lands. The court below vacated the deeds as fraudulent. After hearing the argument upon the appeal,' this court held, that the proof was fully sufficient to establish the alleged fraud, and to entitle the complainants to the relief sought by them. The cause, however, was remanded for further proceedings.

This, we think, was done for the purpose Of enabling Ludwick Long to be secured against the nine notes executed by him-. ³⁴⁵ The present bill states, that the “consideration as set forth in the said deed, is in fact fraudulent, and merely pretended; and even if the said stated consideration was paid by the said Wampler to the said Wolfinger, it was wholly inadequate, and by fraudulent devices and contrivances of the said Wampler, it was extorted and taken from the said Wolfinger, and he was altogether deprived thereof.” This being a decree pro confesso, without any answer or proof, there is nothing on which to base even a presumption that any thing was either paid or secured to be paid, as purchase money, by the appellant, but such a presumption is clearly negatived. He, therefore, has no right to insist upon having the cause remanded for the purpose of allowing him to be reimbursed on account of purchase money. The case of Strike vs M'Donald & Son, 2 Har. & Gill, pages 194, 243, 244 and 261, is an authority sufficient to show that this decree is not subject to objection, because it charges the appellant with issues and profits of the land. It has been said in argument, that the averments in the bill are not sufficient to authorize a sale of a lunatic’s real estate; and such a sale having been directed by this decree, it is an error which should be corrected.

But, even should it be conceded there is an error in this respect, the appellant is not injured thereby, and therefore, he cannot claim a reversal to correctthe error. Calwell vs. Boyer, 8 G. & J., 136 . Pratt, Adm’r of Kent, vs. Johnson, Adm’r of Johnson, 6 Md. Rep., 399 . This suit was instituted by the lunatic and his committee, for the purpose of relieving the property of the lunatic from a fraudulent transaction, charged upon the appellant; he, therefore, can have no just claim to be regarded as the protector of the rights and interests of the lunatic.

Another ground relied upon for a reversal is, that the appellant had no notice of the order for taking the bill pro confesso, previous to the passage of the final decree. The act of 1799, ch. 79, section 2, is the law which is relied upon by the appellees’ counsel as giving authority for the passage of this decree, without there being any necessity for ³⁴⁶ such previous notice to the defendants as has been insisted upon. In the case of Burch vs. Scott, 1 Bland’s Ch. Rep., 112, the defendant having been summoned, and also attached,, without appearing, Chancellor Johnson, on the 30th of March 1824, passed an order requiring him, either in person or by his solicitor, to put in a good and sufficient answer to each interrogatory in the bill, or a plea or demurrer to the same, on or before the 4th day of the July term, next ensuing, or otherwise the chancellor, upon application of the complainants,, and at discretion, would either lake the bill pro confesso, or direct a commission to issue for taking depositions, and would finally decree, as to him should seem meet and consistent with the established principles of equity, in the same manner as if the-said defendant had appeared, and depositions had been taken in the usual way.. “Provided a copy of this order be-served on the said defendant, or left at his usual place of pbode, before the 20th day of June next.” In a- note on page 114', Chancellor Bland says: “The-terms and form, of this order were adjusted by Chancellor Hanson, according to the provisions of the act of 1799,