Wilson v. Shaw

⁵⁸ Burke, J., delivered the opinion of the Court. The appeal in this ease was taken by the complainant from an order of the lower Court sustaining a demurrer to the whole bill. The object of the suit was to secure the cancellation of a deed from Isaac Shaw to his wife, Mary E. Shaw, the appellee, dated in August, 1911, and which purported to convey to her certain real estate in Allegany county. The prayers of the bill are: first, that the deed may be declared null and void, and vacated and set aside; secondly, that the real estate mentioned in the deed may be decreed to be sold and the proceeds applied to the payment of the plaintiff’s claim after deducting the costs of the proceedings.

The hill alleged that Isaac Shaw was indebted to the plaintiff at the date of the execution of the deed in the sum of fifty-eight dollars; that he was then insolvent and without means to pay the plaintiff or his other creditors apart from the property conveyed by the deed, and that said conveyance was fraudulently made, and for simulated and not valuable considerations, and was made to hinder, delay and defraud the plaintiff of his claim. The consideration expressed in the deed was five dollars and natural love and affection. The grantor died before the institution of the suit, and the grantee, Mary E. Shaw, is the only party defendant. The ground of the demurrer is the omission to make the heirs of the grantor parties defendant, — the contention being that if the deed be decreed to be null and void the title to the land would then be in his heirs at law subject to the claims of creditors and that this title could not be divested or transferred to the purchaser at a sale made under a decree unless the heirs at law of the grantor were parties to the suit.

It was this reason that induced the lower Court to sustain the demurrer. Assuming, as we must do upon the demurrer, the truth of the allegations of the bill, the deed must be declared to be null and void. ⁵⁹ In Norberg v. Records, 84 Md. 568 , where property had been conveyed, without consideration, by a husband to his wife with the intent to hinder and defraud his creditors, the Court declared the deed to be “absolutely null and void to all intents and purposes whatsoever,” and directed that the property be sold. In that case both the grantor and the grantee were defendants. Judge Bbiscoe, speaking for the Court, said: “The deeds then being neither bona fide nor for a good or valuable consideration, and fraudulent in fact, were void db initio and are not to be recognized for any lawful purpose.

Zimmer v. Miller, 64 Md. 300 . A voluntary conveyance from a husband to a wife is void as against existing creditors. Code, Art. 45, sec. 1. But it is urged on the part of the appellants, that the decree is erroneous because the deeds are declared to be absolutely null and void to all intents and purposes whatsoever and not merely as to existing creditors.

The decree, however, simply adopts the theory of the bill as supported by the evidence, and in doing this it becomes regular and valid. In the case of Waters v. Dashields, 1 Md. 455 , it was held that if the