Wilson v. Vandersall

⁴⁸² Thomas, J., delivered, the opinion of the Court. This appeal is from the decree of the Circuit Court for Garrett County sustaining the demurrer to. and dismissing the third amended hill of complaint of the appellant. The suit was instituted by the appellant against Louisa M. Vandersaal, the widow of Samuel W. Vandersaal, Elizabeth McCloskey, and the devisees and executrices under the will of Samuel W. Vandersaal for the purpose of having two deeds—one from the said Samuel W. Vandersaal and Louisa M. Vandersaal to Elizabeth McCloskey, and the other” from Elizabeth McCloskey to Louisa M. Vandersaal—declared null and void because made with the view of defrauding the creditors of Samuel W. Vandersaal, and to have the property thereby conveyed, located in Garrett County, Maryland, sold for the payment of his debts. The deeds were dated the 18th of November, 1908, were acknowledged in the State of Pennsylvania, and were recorded among the Land Records of Garrett County on the 27th of November, 1908.

Section 1 of Art. 45 of the Code declares “that no acquisition of property passing to the wife from the husband after coverture shall be valid if the same has been made or granted to her in prejudice of the rights of his subsisting creditors, who, however, must assert their claims within 3 years after the acquisition of the property by the wife, or be absolutely barred, and, for the purpose of asserting their rights under this section, claims of creditors of the husband not yet due and matured shall be considered as due and matured.” The original bill was not filed until the 27th of November, 1916, but the appellant relies upon section 14 of Article 57 of the Code, which provides: “In all actions where a party has a cause of action of which he has been kept in ignorance by the fraud of the adverse party, the right to bring suit shall be deemed to have first accrued at the time at which such ⁴⁸³ fraud shall or with usual or ordinary diligence might have been known or discovered.” The only allegation in the hill suggesting any concealment by Mrs. Yandersaal of the execution of the deed is the averment that “the said Vandersaal informed your orator at various times after the making of the aforesaid deeds that he, the said Yandersaal, was the owner of said property, and that the same stood in his name, and that all of this, including the statements as to ownership, made to your orator by the said Yandersaal was known to the said Louisa M. Yandersaal, his wife, and was known by her to be false.” We entirely concur in the views, expressed and the conclusions reached in the following opinion delivered by Chief Judge Boyd, in the Court below, which we adopt as the opinion of this Court, and for the reasons therein stated will affirm the decree appealed from. “This case is now before me on a demurrer to a third amended bill of complaint, which was filed on December 22nd, 1917, the original bill having been filed November 27th, 1916. The demurrer assigns many grounds for it, amongst others laches and the statute of limitations. “The case presents a striking illustration of the importance of the anile against laches, as there have not only been material changes in the several bills of the amounts claimed to be due, but also in the allegations as to what the plaintiff alleged Vandersaal told him in reference to the purchase price the latter received from the property in Pittsburg. It is only just to the plaintiff to say that he did not claim to be alto^ gather accurate in his first bill, but as the $26,250.00 found by the Alabama Court to be due, as shown by an exbibit filed with this bill, included interest from October 25th, 1907, there could not have been more than $16,000 or $17,000 of principal found to be due as of that date, and as there was therefore a difference of forty or more thousand dollars be ⁴⁸⁴ tween what the plaintiff originally claimed to be due and what he now says is a final judgment which ‘determines the correctness and the amount of the claim of your orator against the said Samuel W. Vandersaal and his estate/ it would be difficult to find a more striking object lesson of the danger of a Court granting relief on a stale claim, unless the amount is shown to be at least approximately correct, and excuse for the delay is satisfactorily established.' “It may be well to say in passing that there is nothing in the record of the judgment of the Alabama Court which shows how the amount was ascertained, and that, moreover, this is not a proceeding to enforce the judgment. “There was filed with the amended bill, and made part of it as ‘Exhibit No>. 1/ an agreement dated January 2nd, 1904, which recites that the parties therein named were creditors of the H. C. Cyphers Provision and Ice Company in the following amounts: “ ‘A. H. Wilson in the sum of $62,830.00; Samuel W. Vandersaal in the sum of $22,156.00, being the amount; of a bond and mortgage/ which is described in said agreement, and which is the mortgage under which the sale was made to Vandersaal; ‘Hugh Murphy in the sum of $14,166.85 ; B-. A. and James Balph in the sum of $10,000.00, and William J. Kennedy in the sum of $4,125.92.’ The agreement recites that Vandersaal was foreclosing his mortgage and was about to sell the property described therein; that there were four mortgages held by the City Deposit Bank prior to that of Vandersaal, also one held by Wilson, assigned of record to Vandersaal, and also certain taxes due and costs connected with the sale; that it was the desire of the parties to purchase the property at the foreclosure sale (which under the Pennsylvania practice was made by the sheriff under a writ of scire facias), and upon a re-sale of it to pay the amounts advanced to purchase the property and then the said respective claims against the Provision and Ice Company, and after payment of said claims to divide amongst the said par ⁴⁸⁵ ties, except Kennedy, any excess realized.

It was further agreed that Vandersaal was to purchase the property and hold the legal title to it ‘for the use and benefit of the parties hereto, as hereinafter set forth/ and that in the event of the purchase by Vandersaal the parties thereto should advance sufficient to pay the amount of the hid in the following proportions: ‘Said Wilson and Vandersaal, fifty per cent. (50%); Hugh Murphy, twenty-five per cent. (25%) ; R. A. and James Ralph, twenty-five per cent. (25%), and William J. Kennedy, $4,000.’ It was then agreed as follows: “ ‘It is further agreed, that in case said Vandersaal becomes tbe purchaser of the said sale, the said land shall be resold by him at such time and upon such price and terms as the parties hereto may hereafter mutually agree upon, and the net proceeds of cash resale shall be distributed as follows: First—To tbe payment of the sum advanced by tbe parties hereto.

Second—To the payment of the respective claims of the parties hereto, pro rata until the same he fully paid. Third—Any excess remaining after payment of the foregoing amounts, to be distributed among the parties hereto as follows: A. H. Wilson and Samuel W. Vandersaal, eighty per centum (80%) ; Hugh Murphy, ten per centum (10%) ; R. A. and James Balph, ten per centum (10%) ; except said William J. Kennedy, who is not to receive any part of said profits.’ “The property was purchased by Vandersaal, and a deed dated January 9th, 1904, was made by the- Sheriff to- him— the consideration stated being $8,136.16. On May 3, 1904, he gave a mortgage to the Peoples Savings Bank for $75,000 payable three years after date, and paid off prior mortgages, which according to the hill amounted to $60,175.00. The exhibits filed show the mortgages were to secure $65,000.00, hut there may have been something paid on one or more of them.

He then leased said property to the East Liberty Home .Dressed Meat Company for three years, receiving, according to the bill, a total rent of $37,500.00. He paid ⁴⁸⁶ the claims of Ralphs, Murphy and Kennedy, which the bill alleges amounted to $21,305.00; $10,500.00 taxes and insurance and $12,000.00 interest on the mortgage. “At the oral argument attention was called to the fact that the agreement of January 2nd, 1904, was signed ‘A. H. Wilson, by S. W. Vandersaal,’ but, as we have seen, the bill makes the agreement a part of it, and there is no suggestion in the bill that it was not authorized by Wilson, or was not just as had been agreed upon. All of the other parties signed it, and acted under it. If there was any question about it, the Court should have been so informed in the bill, and it could not be made a part of the bill for the plaintiff’s purposes when it suited him, and rejected as to other parts, without at least making proper allegations to show wherein it was wrong.

We must, therefore, treat it as for what it purported to be, and it on its face is a direct and distinct contradiction of the allegation in the bill that Vandersaal had no interest in the property. Indeed, the plaintiff’s whole claim is based on the theory of that agreement, except the part which states what was due Vandersaal on the bond and mortgage, for which the sale was made by the sheriff under the writ of scire facias. It would be going to an extreme length and contrary to the decisions of this State, to permit a party to wait for over twelve years and then undertake to set aside in part an agreement under seal, such as this is, by parol proof after the death of the other party, when he relied on the agreement for his own purposes and did not suggest that his signature was not authorized, or that the statements in the agreement-had been fraudulently inserted. We must for the purposes of this demurrer treat it as an agreement between the parties thereto, which the bill in effect alleges it to be, and the plaintiff can not be permitted to now contend that in fact nothing was due Vandersaal, when the agreement is to the contrary, and provides for the distribution of the fund according to its terms.

Every presumption is in favor of the agreement, a copy of which is filed with the bill, and presumably the original was either in the hands of the plaintiff or he had access ⁴⁸⁷ to it, so that he did know or could have known years before this bill was filed what its contents were. “We might add here that the original bill and the first amended bill stated that it was agreed that Vandersaal was to be paid $5,000 for his services, but that seema to have dropped out of the case in the last two bills, and no credit is given to him for any compensation in the statements of the indebtedness alleged to be due by him. If Vandersaal was entitled to $22,156.00 out of the proceeds of the sale of the property, as per the agreement, and $5,000 for his services, according to the first two bills, there could not have been much, if anything, due the plaintiff by him on Bovember 18th, 1908, when the deeds complained of in this case were made, even if the purchase money alleged to have been received by Vandersaal is correctly stated in the bill, and the agreement of October 23, 1907, is ignored. The latter agreement, which is filed with the bill and marked Exhibit Bo. 7, is a complete answer to the claim of the plaintiff, unless it be set aside and ignored. That was executed under seal by Wilson and Vandersaal.

It recites that a package referred to contains three certificates of stock of the Pittsburg Ice Company for 100 shares each, dated April 25th, 1907, and made to the order of S. W. Vandersaal, ‘and were received by him in part payment of the Provision and Ice