Wilmer v. Placide

Pattison, J., delivered the opinion of the Court. Susan E. Plaeidle, the appellee in this case, filed her bill in the Circuit Court for Baltimore City, alleging', among ³⁰⁷ other things, that she was the owner of a house and lot of land, LTo. 1300 Madison Avenue, Baltimore, Md., which was sold and conveyed to her by the appellant, Edwin M. Wilmer and George W. Lindsay, trustees, by deed dated the 16th day of June, 1887, and duly recorded among the Land Records of Baltimore City. That on the 3rd day of LTovember, 1890, she executed nnto her sister, Alice B. Wilmer1, a mortgage, which was assigned by her to the Mercantile Trust and Deposit Company, and by it assigned to Edwin M. Wilmer on the 28th of December, 1897, and which the bill alleges has been fully paid. The bill alleges that ,the appellant is largely indebted to her for moneys collected as rents from her various properties, covering a long period of time, and for money entrusted to him to be paid upon said mortgage, and which he failed to apply thereto, but while so indebted to her wrongfully took an assignment of said mortgage to himself.

That after the death of her sister she took charge and control of and cared for her three infant children hereinafter mentioned, and that in, 1897 she allowed the defendant to bring to the Madison Avenue home, where the defendant, his children and the plaintiff then lived, his two sisters and two nieces, and permitted them to occupy the greater part of her house, under an agreement that “he would pay all expenses on said house, taxes, repairs and any interest that might accrue from any money due and owing on said mortgage, and further, that he would recompense her for any money that she might expend in clothing for his children, and would provide suitable meals, and generally that she need have no concern for said property, except to live in same, he to pay all and singular the expenses of said property.” That the mother and sisters are still occupying the greater part of said home against the protest of and to the prejudice of the rights of the plaintiff. That the appellee has failed to pay the taxes upon said property, permitting four years of such taxes to remain unpaid and in arrear, and has failed to maintain and keep in repair the house and premises ³⁰⁸ as he agreed to do in the agreement above mentioned. That by his failure to pay said taxes, .the property was about to be sold for the payment of the same. It was then that she called upon him for an accounting, and in answer thereto, she was told that he would foreclose the mortgage then held by him, which he thereafter proceeded to do, and which proceedings are now pending.

That after repeated requests, the appellant finally handed her a partial and pretended statement of various accounts, which, as alleged in the bill, are false, incomplete and misleading. The bill alleges that she cared for the children of 'the defendant and has expended large sums of money for their clothing, for which she has not been.repaid. The prayer of the bill asks: (1) that the said mortgage be annulled; (2) that it be released; (3) that an order be passed enjoining and restraining the defendant from foreclosing the mortgage or from selling or assigning his interest or claim therein; (4) that he be required to. state an account, under oath, of all monies received by him belonging to the plaintiff; (5) that the said defendant be required to vacaite the premises. The appellant in his answer to the bill denied the plaintiff’s ownership of the property, and alleged that after the conveyance to her by the trustees she deeded her property avray.

He denied! the alleged indebtedness from him to the plaintiff, but alleges that she is indebted to. him. He also denied that he has refused and still refuses to give her an accounting, but alleges that she is in possession of the book wherein he correctly entered with great particularity, ait the times they should have been entered, the debits and credits of said account, and that- they were so made with the full knowledge of the plaintiff. He denied any agreement with the plaintiff in relation to the occupancy of the Madison Avenue home by his relatives mentioned in the bill. He further denied that the plaintiff ever entrusted -any money to. him to be applied to the payment of the mortgage, or that he had misappropriated any funds collected for her to. his own uses, ³⁰⁹ and. alleged that the assignment of the mortgage to him was for a full valuable consideration paid by him.

He also denied that he was indebted Itio the plaintiff for moneys expended by her in tbe purchase of clothing for the children, but admitted that the plaintiff had been kind and affectionate towards bis children. He admitted the execution of the mortgage and the alleged respective assignments •thereof, but denied that the plaintiff or anyone for her had paid any part of the mortgage except the amount for which credit was given, which reduced the amount owing thereon at the time of the assignment to him to $3,959.89. A general replication was filed to this answer and after-wards on December 28th, 1910, the appellee filed her bill in said Court against the said Edwin M. Wilmer and Henry Placide Wilmer and E. Placide AVilmer, sons of Edwin M. AVilmer, and one Harmon Y. Morse, husband of Albalshenl Morse, deceased daughter of Edwin M. AVilmer, in which she alleges that BdNvin M. Wilmer, one of the defendants, left for record in the office of the clerk of the Superior Court of Baltimore City a deed dated the 28th day of July, 1887, by which tbe said appellee was said to have conveyed to her sister, Alice B. Wilmer, the said house and lot of ground known as Ho. 1300 Madison Avenue. The bill further alleges that while the above named deed purports to be signed by the appellee and recites a consideration of nine thousand dollars, that no part of said sum was ever paid to her or did she sign said deed, or did she authorize anyone to sign said deed for her, and that she never saw or heard of it until at or about the time it was filed for1 record.

The bill also alleges 'that although tbe said Wilmer claims to have had possession of the said deed since its execution, that neither his wife, while living, nor he, since her death, claimed ownership of the property therein described, until a short time before the filing of the deed, when Wilmer claimed there was a secret deed and that as his wife died intestate, seized of the property, he was entitled to a life estate therein, and then for ³¹⁰ the first time he demanded payment of the appellee for the use and occupation of those parts of the Madison Avenue property that were and had been for years occupied by the appellee, and threatened to take legal action against. her unless payment for such part was made by her therefor, and not until after the plaintiff had refused to pay the mortgage aforesaid and not until the bill had been filed in said Court, asking, among other 'things, that said mortgage be annulled •and set aside, did the defendant speak of this deed. The bill further alleges that Alice B. Wilmer died June 29, 1891, intestate, leaving surviving her Edwin M. Wilmer, her husband, and the children above named. That Alblasheul Wilmer, after marrying with Harmon Y. Morse, Jr., died on the 8th day of June, 1910, intestate and without issue, leaving her husband surviving her, ■ and leaving E. Placide Wilmer and Henry P. Wilmer, her brothers, her only heirs at law. In the prayer of the bill the Court is asked: First: That by its decree it declare void the deed purporting to be made by the plaintiff to said Alice B. Wilmen.

Second: That pending the proceedings the said Edwin M. Wilmer be restrained from interfering with the possession or occupation of said house by the plaintiff, etc. Third: Eor general relief. To the bill of complaint Henry B. and E. Placide Wilmer answered admitting all the allegations of the bill, and alleged therein that after the death of their mother, who died in their infancy, they resided with their aunt, the plaintiff, at the Madison Avenue home, and that she eared for them as a mother. That the plaintiff was always regarded as the absolute owner of the Madison Avenue property and .that the defendant, their father, spoke of it as the property of the plaintiff. That they had never heard of the alleged “secret” deed from the plaintiff to their mother until shortly before it was by their father filed for record, and that they are ³¹¹ willing and anxious that the said deed should be declared void and of no effect.

The defendant Harmon V. Morse, Jr., answered the bill admitting his marriage with Alhlasheul P. Wilmer and also her death, hut stated therein that he had no personal knowledge of many of the matters and things alleged in the bill, “although he has understood from statements made by his wife and others that said allegations are substantially true as therein stated.” The remaining defendant, Edwin M. Wilmer, answered the hill admitting the filing for record of the deed from the plaintiff to his wife, Alice B. Wilmer, at the time mentioned in the hill, but would neither admit nor deny that the plaintiff acquired title to the property by the conveyance from him and Lindsay, trustees. He denied that the plaintiff had occupied, possessed and made claim to the property for the time alleged in the hill. The answer further alleges that the said deed from the plaintiff to his wife is the deed of the plaintiff, and that before the execution and delivery of the deed to the plaintiff, under which she claims title thereto, there was a mutual agreement between her and her sister that she, the plaintiff, should hold such property .for the benefit and as the property of the said Alice B. Wilmer, and that the said Alice B. Wilmer should supply the consideration therefor to he paid to the trustees, and that pursuant to said agreement the said Alice B. Wilmer supplied the purchase money therefor and the property was, under this' agreement, conveyed unto the plaintiff, she to convey the same to her sister when called upon by her to make such conveyance, and that it was when called upon by her sister that she, the plaintiff, conveyed the property to her. The answer further alleges that his wife, while living, and he, since her death, have consistently, continuously and openly claimed and done acts of ownership of the property mentioned in the deed, and that his.wife while living and he since her death have occupied and been in possession of said prop ³¹² erty as owners thereof, and not until about three weeks before the filing of the bill did the plaintiff make any adverse claim of title thereto.

That the mortgage is now in default and by reason thereof he is entitled to the possession of said property, and that besides his interest as assignee of said mortgage, he has interest in said property as the husband of his deceased wife. He denied that he had not spoken of said deed to the plaintiff earlier than a short time before the same was filed for record, but alleges that during the lifetime of his wife and since, and long before the institution of these proceedings, he had directly spoken to the plaintiff of said deed and had notified her of the rights and claims of his deceased wife and himself, and that long before the institution of this suit the plaintiff had admitted his title and the validity of the claim made under the deed to his wife. To this answer the defendant made affidavit. To the answers of the defendants a general replication was filed.

Thereafter a motion was made by the defendant Edwin M. Wilmer to dismiss the bill for multifariousness, which motion was overruled, and upon the same day the defendants filed a motion asking that the facts of the case be submitted to the jury. This motion, too, was overruled, and upon the motion of the plaintiff the two cases were consolidated. A great mass of testimony was taken in the case and much of the record, of over four hundred pages, is taken up with statements and accounts filed as exhibits. Exceptions were filed to the bill and hundreds of exceptions were taken by the defendants to the ruling of the Court upon admission or rejection of testimony. ' By the decree appealed from, the said deed from the plaintiff to Alice B. Wilmer was set aside and annulled, and it was adjudged that the property therein described was the property of the plaintiff, and thus the defendant, Edwin M. Wilmer, was directed to remove from the property within the time therein mentioned.

The papers in the case were ³¹³ referred to the auditor therein named to state an account, with the following directions briefly stated: 1st. The plaintiff to be charged with the mortgage debt, but with no interest thereon, with the cost of recording mortgage. 2nd. That she be credited with the two sums arising from the estate of Jennings Placide, 'deceased, amounting to $1,689.03, with interest on each sum from the date of its receipt by Wilmer. 3rd. That the plaintiff be credited with the sums shown by the books to have been charged against her as board, etc., and with interest on each of said sums so retained. 4th.

That she be credited with one-half of the amount received by Wilmer as rent for Ho. 1001 E. Pratt street, less expenses, etc., therein mentioned, and one-half of the rent of $100 from 1901 MdOulloh street, not accounted for by him, with interest on each of said sums. 5th. That she be credited with any taxes and water rents on Ho. 1300 Madison avenue not paid by Wilmer since August 12th, 1897. 6th. That Wilmer “be allowed such part of the sum of $1,055.30 referred to in his ledger named in evidence, for the payment of which he can show proper authority from Miss Placide, with interest thereon,” etc. It is from the decree of the Court of October 27th, 1911, “setting aside the deed from Susan E. Placide to Alice B. Wilmer and declaring the property therein named to be the property of Susan E. Placide, and in referring the papers to an auditor,” etc., that the defendant appeals. While the plaintiff appeals from that portion of the decree which charges the mortgage therein named as a lien on Ho. 1300 Madison avenue, and from that part of the decree which refuses to allow her for moneys said to have been expended by her for clothing, etc., for' the children of Edwin M. Wilmer.

The filing of the second bill in these consolidated cases resulted from the denial of Edwin M. Wilmer in his answer ³¹⁴ to the first bill filed that the plaintiff is the owner of the property mentioned in the bill as No. 1300 Madison avenue, and from his allegation in his answer that subsequent to the conveyance to her by him and Lindsay, trustees, “the plaintiff deeded away the property aforesaid.” The first bill was filed on November 10th, 1910. The answer of Wilmer thereto was filed December 19, 1910. On the 8th day of December, 1910, between the filing of the bill and» the filing of the answer, Wilmer, the defendant, filed for record in the Superior Court of Baltimore City, a deed in his own handwriting which had been, as he claims, in the possession of his wife and himself since the date of its alleged execution, July 29, 1887 — a period of over twenty-three years — which deed purports to be a conveyance of said property by the said Susan E. Placide to Alice B. Wilmer. The plaintiff in her testimony stated that she had “perfect confidence in the defendant,” to whom she, after the death of his wife, gave entire charge of her affairs; “that she did whatever he told her in any transaction and in every case,” and as she says, “I supposed he was doing the right part by me.

I was signing papers and other things and I always did just as he asked.” She stated in her testimony she had never heard of the deed before November, 1910, nor had she ever seen it. She was then asked, “Do you deny signing it” ? To which she replied, “Well, I could not deny it if I saw my own hand-writing to any paper, but not to a deed of such a description knowing it to be a deed, as I never heard of it. I signed a great,many papers not knowing what was in them.” She denied signing it knowing it to be a deed.

The defendant, Edwin M. Wilmer, testified that the body of the deed., with the exception of the date, “the 28th of July,” was in his handwriting, and the signature thereto was the hand-writing of Susan E. Placide. That he was present when the “paper” was signed; but not present when it was executed and acknowledged. That at the time it was signed by the plaintiff there were three persons present beside ³¹⁵ Miss Placide, “Mrs.” Alice B. Wilmer, Mr. Jennings Placide and myself, and it was signed in the sitting-room hack of the second-story front room, which at that time I used as a library. Later, on being asked by his counsel when the paper was executed, he said, on the 28th of July, 1887.

And when asked by the Court “what do you mean when you say it was executed on the 28th of July, 1887” ? he stated, “I mean the date of the acknowledgment by the, justice of the peace is July 28th, 1887.” He was then asked by the Court, “Is that the only information- you have, reading from the deed” ? And he answered, “Yes.” This is practically all that was said in relation to the signing or execution of the deed. 'The defendant stated that after it was executed it was delivered to Mrs. Wihner, the grantee named therein, but it soon thereafter passed into his possession, where it remained until November, 1910, when he filed it for record. After its alleged execution and while in the possession of the defendant or his wife, and with the full knowledge on his part of its existence, we find disclosed hy the record the following acts or admissions of both the defendant and his wife which are absolutely inconsistent with the claim of title or ownership here made by the defendant under this alleged deed. The property here involved, No. 1300 Madison Avenue, at the time of the marriage of Edwin M. Wilmer and Alice* B. Placide and for years prior thereto was the home of the Blacides, and it was there the plaintiff, her sister and brother, lived at the time of such marriage*, and where they, including the defendant, continued to live thereafter, and where both the plaintiff and defendant now live.

A few years only after said marriage, this property, upon the death of Mrs. Placide, the owner o*f the same at the time of her death, was sold by Edwin M. Wilmer and George Lindsay, as trustees, and as shown by the report of sale made under oath of the trustees aforesaid, forming a part of this record, the ³¹⁶ plaintiff became the purchaser thereof at and for the sum of $9,000. The property was afterwards conveyed to her by said trustees, in which deed it is acknowledged that the whole of the purchase money therefor had been paid. By the will of her mother, Mrs. Wilmer was made trustee for her brother, Jennings Placide, and upon the purchase by the plaintiff of property No. 1300 Madison Avenue, the plaintiff borrowed from her sister as trustee for Jennings Placide, the sum of $4,000, which was applied in part payment of the purchase money