Wilmer v. Placide

Boyd., C. J., delivered the opinion of the Court. This record presents some peculiar and unusual conditions. There are four bills of exception in the record, the first three presenting rulings of the lower Court in reference to testimony, and the fourth was to an instruction directing the jury to render a verdict for the defendant. The first exception was taken to the action of the court in overruling the plaintiff’s objection to the defendant’s exception to and motion ne recipiatw' of the deposition of Elijah J. Bond taken de bene esse.

That objection was based on certain rules of the Superior Court of Baltimore City but, as we understand the record, the plaintiff’s attorney is manifestly under a misapprehension of the application of the rules. Rule 3-A begins by saying, “No demurrer, motion or other paper iviiich may require a hearing by the court in advance of trial of the whole case on the merits shall be filed until after a copy thereof shall have been served upon the opposing party or parties or counsel of record, or otherwise in accordance with the provisions of Rule 8,” etc. What we have italicised is a sufficient answer to the plaintiff’s contention. No exception to the execution and return of the commission was filed, but the objection to the testimony of Mr. Bond was that it was not admissible. That did not require a hearing in advance o'f the trial of the whole case on the merits, but the time to object to the substance of the evidence taken under a commission is at the trial.

The recent ¹⁰⁹ case of Woodward v. Tyng, 123 Md. 98, 116 , sufficiently disposes of that exception to avoid the necessity of citing other authorities. The second exception was to “sustaining said exceptions to said testimony and in granting and sustaining said motion ne recipiatur and in refusing to receive the testimony of said Elijah J. Bond or any part thereof and in refusing to permit said deposition or any part, thereof to be placed in evidence or read to, the jury.” It might be sufficient to say that there is nothing in the record to show the necessity for the use of the deposition de bene esse of Mr. Bond, Sec. 21 of Art. 35 provides for taking the deposition of any witness “to be used as testimony on the trial of such action, in case only of the death of such witness, or on proof to the satisfaction, of the court of the inability of the party to procure the attendance of such witness at the time of trial and the probable continuance of said inability until and at the next term, before the court shall permit such testimony to be used”. We do not find in the record any statement that the witness was dead, or proof of his, inability to attend. In Consolidated Ry Co. v. O’Dea, 91 Md. 506 , this section (which was sec. 19 of the Codo of 1888) was before the Court.

Chief Judge MeSherry on pages 512-513 said of it: “Primarily the statute contemplates that the resident witness shall appear in person, but as contingencies might occur where this would not be possible, the Legislature provided by Sec. 19 for the production of his testimony by deposition if the personal attendance of the witness could not be procured in a reasonable time. The deposition thus taken can only be used should the witness continue unable to be present.” As the lower Court is presumed to, have acted correctly, in the absence of something to show the contrary, we might assTime that the plaintiff did not satisfy it that the deposition could properly be used. It is true that this is not given as one of the objections to its admission, but the mo ¹¹⁰ tion after referring to several other grounds adds, “And for other reasons to be stated.” But without relying on that, was the court right in refusing to permit the deposition to be read in evidence? A good deal of Mr. Bond’s evidence was wholly irrelevant, and the only part of it that could under the plaintiff’s claim be said to be pertinent was that in reference to. the deeds for and the mortgage on the Madison Avenue property.

He testified that he left Baltimore in 1892 and did not come back permanently until 1913, that he only visited Baltimore in that interval three or four times, but there is not the slightest suggestion that he could not have been procured at the hearing by Wilmer, if h'is evidence was deemed important or desirable. There may be some question about what property is referred to in the other counts, but there can be none as to the fifth and sixth counts, as they refer to No. 1300 Madison Avenue. There are few, if any, instances in the reports of decisions of courts where one property has been more in litigation than that. There was every opportunity, as shown by the records and decisions of this court, for this appellant to present every phase of the cases that was permissible and, in some of them, some points were pressed which had no foundation in law or equity.

Speaking then of the Madison Avenue property, this suit is an attempt to continue, or to speak more accurately, to re-open litigation in a way that has no> justification under the decisions of this court, whatever may be the rule in any other jurisdiction. The fifth count alleges that the defendant “did by fraud, fraudulent conspiracy and perjury, dispossess and deprive the plaintiff of his rights in said property, and in furtherance of said object, wrongfully and wilfully, corruptly and fraudulently, repudiate her certain deed of said property to her sister, theretofore duly executed, acknowledged, delivered and recorded, and, in order to perfect said fraud, did wilfully on false testimony and otherwise commit and cause to be committed perjury in a certain suit and suits ¹¹¹ pending between tbe plaintiff and defendant in tbe several courts of Baltimore City”. The sixth count alleges that the defendant executed a mortgage on said property, which became the property of the plaintiff, “and that by false testimony, perjury, fraud and conspiracy, said Susan E. Placide did, by abuse of the process of the courts of Baltimore City, cause the plaintiff to lose his property in said mortgage, and to be otherwise injured and damaged”. In the case of Wilmer v. Placide, 118 Md. 305 , Susan E. Placide filed a bill against Edwin M. Wilmer, alleging that she was the owner of No. 1300 Madison Avenue, which was conveyed to her by Edwin M. Wilmer and George W. Lindsay, Trustees, by deed dated June 16, 1887, that on the third of November, 1890, she gave to her sister1 Alice B. Wilmer, who was the wife of Edwin M. Wilmer, a mortgage, which was assigned by her to the Mercantile Trust & Deposit Company, which assigned it to Edwin M. Wilmer on the 28 th of December, 1897, and which the bill alleged had been fully paid.

The bill also alleged that Wilmer was largely indebted to the plaintiff for money collected by him for her and for money entrusted to him to be paid upon the mortgage, which he failed to apply thereto, and wrongfully took an assignment of the mortgage to himself, that after the death of Alice B. Wilmer the plaintiff took charge and control of and cared for her three infant children and in 1897 she allowed said Wilmer to bring to the Madison Avenue home, where he, 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, taxes, repairs and interest on the mortgage, etc. Wilmer in his answer denied the plaintiff’s ownership' of the Madison Avenue property, and alleged that, after the conveyance to the plaintiff by the trustees, she conveyed it away, denied the alleged indebtedness and the agreement as to the occupancy of the house, and that the plaintiff had paid ¹¹² any part of the mortgage excepting a small amount for which, credit was given at the time of the assignment to him. On December 28th, 1910, Miss Placide filed a bill against Edwin M. Wilmer, Henry Placide Wilmer and E. Placide Wilmer, sons of Edwin M., and H. V, Morse, husband of a deceased daughter of Edwin M. Wilmer, in which she alleged that Edwin M. had left for record in the clerk’s office a deed dated the 28th of July, 1887, by which she was said to have conveyed to' her sister, Alice B. Wilmer, the house and lot known as No. 1300 Madison Avenue. She denied that she .ever signed such a deed, and alleged-that she never heard of it until at or about the time it was put on. record, which was on December 8th, 1910. Alice B. Wilinor died intestate on June 29th, 1891, and Edwin M. claimed a life estate in said property as the husband of his deceased. wife.

A great mass of testimony