Wicklein v. Kidd

Walsh, L, delivered the opinion of the Court. The hill of complaint in this case was filed below by Anna M. Wieklein, the appellant, against William J. Kidd, Florence G. Beach, Trustee, the Economy Building and Loan Association, a corporation, and Philip Blum, the appellees, and also against Carl W. and Matilda Weissenbom, but before the taking of testimony it was, at the plaintiff’s request, dismissed as to the Weissenboms. The bill asked that foreclosure proceedings instituted by the Economy Building and Loan Association against certain properties in Baltimore City formerly owned by the appellant be enjoined, that Florence G. Beach, Trustee, and Philip' Blum, be enjoined from disposing of the mortgages they held against certain of these' properties, that all of the appellees be required to disclose their financial dealings with the appellant, particularly the transactions whereby William J. Kidd acquired title to, and the other appellees secured mortgages on, the properties at 417 and 423 W. West Street and at 1112, 1114 and 1118 Warner Street, which properties the bill alleged had belonged to the appellant for many years, and had never been conveyed away nor encumbered by her. At the completion of the taking of testimony in the court below, the plaintiff asked and received permission to withdraw her original bill of complaint, which charged that the properties in question had never been conveyed by her, and to file an amended bill in which it was alleged that if the properties had been conveyed by her the deeds conveying them were secured by fraud and were without consideration.

The appellant is a widow over seventy-five years of age, and prior to 1924 she was the owner of the properties involved in these ⁴¹⁵ proceedings, and of certain other property, all of which consisted of small houses located generally in South Baltimore, in which section the appellant also resided. She had been acquainted for a number of years with one Max Weissenborn, an employee of the Appeal Tax Court in Baltimore, and, after the death of her husband in 1912, she had various business transactions with Max Weissenborn, including the borrowing of money on one or more occasions from a building association with which he was connected. Later on she became acquainted with Carl Weissenborn, the son, of Max Weissenborn, and be attended to the sale of a house she owned on Light Street. It also appears from the record that the appellant had Max Weissenborn attend to the payment of her taxes, at various times,, and wrote him a number of letters about her taxes and building association loans, that she also borrowed money on at least one occasion through Carl Weissenborn, wrote him on April 14-th, 1924, suggesting’ tha't he try to get an offer for her properties, at 417 and 423 Warner Street, and that she seemed to have great confidence in and considerable regard for both the Weissenborns.

On October 3rd, 1923, and on December 14th, 1922, the appellant gave confessed judgments for $2,000 each to Max Weissenborn, and he endorsed the same apparently to Carl Weissenborn, and on November 23rd, 1923, she gave a confessed judgment for $2,000 direct to Carl Weissenborn. These notes were discounted and recorded, and the proceeds, with the exception of either one or two thousand dollars which was given the appellant, went to Carl Weissenborn, though he gave no consideration for them. It further appeared that at the time this suit was brought Carl Weissenborn was serving a four years’ sentence in the Maryland 3 balitentiary, which sentence was imposed upon him in the summer of 1924 for his confessed theft of an automobile. On May 3rd, 1924, the appellant, while at the Maryland General Hospital, where she had been for four or five months as the result of an injury to her hip, executed a deed conveying the properties at 417 and 423 W. West Street to ⁴¹⁶ William J. Kidd, one of the appellees, and on the same day Kidd gave a mortgage for $4,000 on these same properties to Florence G. Beach, Trustee, another of the appellees.

On May 14th, 1924, the appellant, who was then at her home, executed another deed conveying the properties at 1112, 1114 and 1118 Warner Street to Kidd, and on May 19th, 1924, he gave a mortgage for $5,000 on these properties to' Philip Blum, one of the appellees. And on June 10th, 1924, Kidd gave another mortgage for $1,400 on all the above properties to the Economy Building and Loan Association, the remaining appellee. The weekly payments called for by this last mortgage not having been paid, and no word, of any sort having been received from Kidd, to whom notices of the payments due were sent, the loan association secured a decree of foreclosure and advertised the properties for sale. The appellant acquired knowledge of the foreclosure proceedings from the notices of sale posted on the properties, and she thereupon filed her original bill of complaint in this-case, alleging that she had never conveyed the properties to any one, and that the signatures to the two deeds were forgeries.

After the testimony was taken, however, she filed, as we have seen, an amended bill stating that she did not recall signing the deeds, but that if she did sign them they were given without consideration and were procured by fraud. The testimony shows that both of the deeds in question were procured at the instance of Oarl Weissenbom, that Kidd was simply a straw man who took title to the properties, and executed the mortgages at the request of Weissenbom, he being paid a nominal fee for this service; that the proceeds of the three mortgages went to Weissenbom; and that the appellant received no consideration for the deeds.. As each of these mortgages constituted a different transaction, it will be necessary to treat each one separately. On or about May 1st, 1924, Oarl Weissenbom, who had previously sold one of the above mentioned two thousand dollar confessed judgments to the Joseph H. Fentz Company, advised Mr. Robert W. Beach, the attorney for that. ⁴¹⁷ company, that he was about to purchase the properties at 417 and 423 W. West Street from Mrs. Wicklein, and asked Beach if he could obtain a mortgage loan of $4,000 on the properties for him.

After looking at the properties, Beach agreed to get the loan, from his sister, the appellee Florence GK Beach, examined the title to the properties, and prepared a deed conveying them from the appellant to William J. Kidd, Weissenborn having told him that because of the existence of certain judgments against him he desired the title placed in Mr. Kidd’s name. On May 3rd, 1924, Beach sent Charles E. Parr, a notary public and bookkeeper for the Joseph H. Pentz Company, to the hospital with the deed, instructing him to read the entire deed to the appellant, and to then have her sign and acknowledge it. Parr returned with the deed properly executed, and advised Beach that the appellant had stated that she knew all about the deed and that there was nothing she wouldn’t do for Mr. Weissenborn. It also appeared that, at the time Weissenborn sold the $2,000 judgment note to the Joseph H. Pentz Company in Kovember, 1923, Mr. Beach had taken the note to Mrs. Wicklein’s residence to verify her signature, and he testified that she then told him that the note was. all right, that she had the utmost confidence in Weissenborn, that he repref sented her, and that she had known both him and his father a long time.

After Parr brought the deed from the hospital, Beach, Weissenborn and Kidd met in Beach’s; office, Kidd executed the $4,000 mortgage on the properties, and Beach turned over to Weissenborn or Kidd in cash the $4,000, less fees and expenses., and on the same day recorded both the deed and mortgage. Kidd, on that occasion, also signed and acknowledged a blank deed which was delivered to Weissenborn and was apparently intended for use by him at a later date in transferring title to the; properties to himself or to some third party. On May 14th or 15th, 1924, Mr. S. J. Lion, a loan broker, applied to the appellee, Mr. Philip Blum, who had been en ⁴¹⁸ gaged for five years in the real estate and mortgage business, for a mortgage loan of $5,000 on the properties at Hos. 1112, 1114 and 1118 Warner Street, and, after examining the properties and talking to several of the tenants, Mr. Blum consented to make the loan. He had the title examined by his son, Albert- H. Blum, an attorney at law, and the latter, finding the record title in Anna M. Wicklein; the appellant, prepared -a mortgage from her to his father. .On May 19, 1924, the two Blums, Lion, Kidd, and Carl Weissenbom met in Lion’s office and the Blums were then advised that Kidd had purchased the property from the appellant for $7,500, that Weissenbom was the agent o-f the appellant, and that Kidd would give the mortgage.

Kidd’s name was then substituted in place of the appellant’s-, a clause stating that the mortgage was a purchase money one was added, and upon Weissenbom producing an apparently properly executed deed conveying the properties from the appellant to Kidd, the mortgage transaction was completed and a check for the proceeds of the loan, amounting, after the deduction of fees and expenses, to $4,724.55, was given to- Kidd. Mr. Blum’s son, whose check was given to Kidd, then accompanied the latter to the bank where the check was cashed, the money turned over to Weissenbom, who explained Mrs. Wicklein’s absence by stating she was in the hospital, and the deed and mortgage were then promptly recorded. The deed involved in this transaction was signed and acknowledged on May 14th, 1924, before Matilda Weissenbom, a notary public and the wife of Carl Weissenbom, and both the Weissenboms testified that the appellant knew and understood what she was doing at the time she executed it, and they both further testified that this deed was given by Mrs. Wicklein for the purpose of helping Carl Weissenbom out of some financial difficulties, -and Carl himself stated that the deed of May 3rd, 1924, was given by her freely and voluntarily for a like purpose, and that he had given her his promissory notes in payment for the properties. At the time of the settletmcnt, Mr. Blum was also advised that Kidd had already ⁴¹⁹ made a payment of $500 on the purchase price, and that the balance due her, including the amount received from the mortgage, would be paid to the appellant by Weissenbom.

About June 1st, 1924, a Mr. Schimmel applied to the Economy Building and Loan Association, in the name of Kidd, for a loan of $2,000 to be secured by a second mortgage on the properties at 1112, 1114 and 1118 Warner Street and 417 and 423 W. West Street. This application was referred to the association’s loan committee, and after a personal inspection and appraisal this committee recommended a loan of $1,400. Mr. Harry Greenstein, attorney for the association, examined the title and prepared the mortgage from Kidd to the association, and after paying the expenses and the 1924 taxes on three of the properties, 'the balance of the loan, amounting to about $1,000, was turned over to Kidd, the apparent owner. At the time the settlement was made, on June 10th, 1924, there were present Messrs.

Greenstein, Kidd, Schimmel, and Lion, the last named also appearing in this transaction as a broker. It also appeared that waivers of the three $2,000 judgments heretofore mentioned were filed as to all three of the mortgages held by the appellees in this case, these waivers being given by the various assignees of the judgments at the time each mortgage transaction was closed. In her original bill of complaint, and in her testimony, the appellant denied ever signing the deeds here involved, but the proof that she did sign them was so overwhelming that at the conclusion of all the testimony she asked and received permission to file an amended bill, in which she stated that she did not remember signing the deeds, and alleging that if she actually did sign them her signature was obtained by fraud and undue influence and without her knowing what she was doing. While on the stand the appellant not only denied signing the two deeds, but she