CRANE v. JUDIK et ux.

(Court of Appeals of Maryland. June 22, 1897.)

REHEARING-DISCRETION OF COURT.

Petition for rehearing is in the nature of a motion for new trial, and addressed to the sound discretion of the court, from the exercise of which no appeal lies.

Appeal from circuit court of Baltimore city. Bill by J. Henry Judik and wife against Joseph Crane. From a decree dismissing petition of defendant for rehearing, he appeals. Appeal dismissed.

Argued before MCSHERRY, C. J., and BRYAN, FOWLER, PAGE, BOYD, BRISCOE, and RUSSUM, JJ.

Wm. A. Fisher and R. H. Bernard & Son, for appellant. Harry M. Benzinger, James S. Calwell, and C. W. Henisler, for appellees.

RUSSUM, J. The appeal in this case is taken from an order of the circuit court for Baltimore city dismissing the petition of the defendant for the rescission of the decree passed in this cause on the 26th day of May, 1896, and for a rehearing. It is settled by repeated decisions in this court that a petition for a rehearing is in the nature of a motion for a new trial, and is addressed to the sound discretion of the court, from the exercise of which no appeal will lie. Jacobs v. Bealmear, 41 Md. 487; Zimmer v. Miller, 64 Md. 299, 1 Atl. 858. The appeal must therefore be dismissed, with costs.

GREEN v. WESTERN NAT. BANK OF BALTIMORE.

(Court of Appeals of Maryland. June 23, 1897.) MARKET STALLS-LIEN OF EXECUTION-PRIORITIES -SUBROGATION-APPEAL-REVIEW.

1. On appeal from order distributing proceeds of sale of certain property, neither the decree determining in whom was title, nor that authorizing the sale, is open for review.

2. Existence of a mortgage whereby legal title to the mortgaged property is in the mortgagee, with only an equity of redemption in a judg ment debtor, does not defeat the lien of execution, though the aid of equity is necessary for its enforcement.

3. The right acquired by purchase of market stalls, a right to occupy particular stalls for purposes of the market only, and which is sold by the city under power conferred by the legislature. is subject to lien of execution.

4. Property of C., which was subject to mortgage to M., was, after judgment against B. and issue of execution thereon, sold by the administrators of C., and purchased by B. in the name of G. The mortgage was then released, being satisfied, partly with means of B., and the residue with part of a loan of $1,200 obtained from G. by B.; such part being, at direction of B., paid by check of G. At the same time, G._executed agreement to sell to B. for $1,200. Held, that the rights of G. in the property were subject to the lien of the execution, and that he could not be subrogated to rights under the released mortgage.

Appeal from circuit court of Baltimore city.

Bill by the Western National Bank of Baltimore against Charles W. Brown and others to subject certain property to payment of complainant's judgment against said Brown. From an order ratifying audit distributing proceeds of sale of the property, defendant George W. Green appeals. Affirmed.

Argued before McSHERRY, C. J., and BRYAN, BOYD, FOWLER, BRISCOE, and PAGE, JJ.

Lewis Hockheimer, Charles A. Briscoe, and F. S. Hoblitzell, for appellant. W. Burns Trundle, for appellee.

PAGE, J. This is an appeal from an order of the court below ratifying an audit distributing the proceeds of the sale of certain market stalls in the Lexington and Hanover Markets, in the city of Baltimore. The stalls were originally the property of Charles Brown, now deceased. In May, 1892, he borrowed $200 from the appellant, and, to secure its payment, pledged to him stalls Nos. 5 and 51⁄2 in the Lexington Market. There is no controversy over this transaction. On the 24th February, 1892, the Baltimore Butchers' Mutual Protective Association loaned him $2,000, and on the 4th of April of the same year the further sum of $500. To secure the payment of these two sums, amounting in the aggregate to $2,500, the association received a mortgage from Brown on all the stalls, and also the transfer of the licenses therefor on the books of the city comptroller. At the same time, to comply with the rules of the association, Charles W. Brown, the son of Charles Brown, in his own name, as trustee for Elenora Brown, his wife, subscribed for certain shares of stock of the association, and pledged them as additional security for the loan. In his lifetime Charles Brown paid no portion of this debt. Charles W. Brown, however, kept the stock paid up, according to the rules of the association. Brown states, as the reason why the shares were subscribed for by him as trustee, that the association required the borrower to become a member by subscribing for its stock; and, his father not being "in a condition" to do so, he consented to take them as trustee for his wife, and pledge them for the debt of his father. It was not insisted at the argument that the payments made by Brown on account of the stock were out of his wife's money, as Brown in his answer had alleged. There is no proof in the case that would enable us to find that Mrs. Brown's money was so used. Although, at the requirement of the association, she joined in the receipt to it for the amount standing to the credit of her husband, as trustee, there is nothing in the record to satisfy us that she had any interest in the matter whatever. In January, 1895, Charles Brown died, and within a month thereafter Charles W. Brown and Euril Budnitz qualified as the administrators of his estate. On the 27th of

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November, 1895, the appellee recovered judgment in the Baltimore city court against Charles W. Brown for $1,209.80, with interest and costs, and on the same day execution by way of fieri facias was issued, and reached the sheriff's hands two days later. It is clear that, at the time of the issuing of this writ, the title to the stalls was in the administrators of Charles Brown, subject to the lien of George Green on stalls Nos. 5 and 5% in the Lexington Market, and the lien of the butchers' association on all the stalls of the deceased in both markets. On the 4th day of December, 1895, the orphans' court passed an order directing the administrators to make sale of the stalls. The report of the administrators to the orphans' court fails to give the date of the sale made in pursuance of the order. But Mr. Budnitz, in his answer, states that it was made, reported, and ratified before the 9th day of December. He also testifies that Brown told him, "two or three days before the report of sale," that Green was to be reported as purchaser, and, acting on this, he (Budnitz) prepared the report, and filed it. It was immediately ratified; and "the appointment was then made for all the parties in interest to meet at his office on the 9th of December." That the sale was completed before that day is further borne out by a consideration of the purpose and plan Brown had in view. His purpose was to secure the title to himself; his plan, to have Green returned purchaser, so that the latter could hold the legal title until the loan was repaid; and, to effect all this, it was necessary, when the time came for Green to advance the money and for the association to release the mortgage, that the title should be safely vested in Green. How long before the 9th of December the sale was made is not material, because, if it was made at any time prior to that day, the lien of the appellant's judgment fastened upon the property. Nor is it proper to inquire whether, upon the facts proved, the title became vested in Charles W. Brown. The circuit court, by its decree of the 6th of October, 1896, so determined; and with the correctness of that decision, it not having been appealed from, we are not now concerned. Phelps v. Stewart, 17 Md. 242. This appeal having been taken from an order distributing the proceeds of sale, the original decree authorizing the sale is not open to review by this court. Newbold v. Schlens, 66 Md. 590, 9 Atl. 849; Porter v. Askew, 11 Gill & J. 351.

Brown's title having accrued prior to the return day of the writ,-that is, prior to the 9th day of December,-if it be assumed that market stalls are such property as may be taken in execution, it is clear the appellee acquired a lien, subject to such prior liens as might exist. The fact that the butchers' association held a mortgage, whereby the legal title was in it, with only an equity of redemption in Brown, could not avail to de

feat the lien of the execution. It could not be enforced at law, it is true; and because of that it is that the appellant had the right to seek the intervention of a court of equity, in order that he may be paid his claim, after the prior lien has been discharged. "It is an established legal principle that a debtor's equitable estate in personal property cannot be seized and sold under a writ of fieri facias. The usual mode is to issue a fi. fa., cause it to be levied or returned, thus showing that his remedy at law has failed, by which acts of diligence a creditor acquires, in the eye of a court of equity, a priority of right from the time his execution was placed in the sheriff's hands, and a court of equity will permit him to redeem the prior incumbrance, or grant a decree for a sale." Myers v. Amey, 21 Md. 305. We are of opinion there is nothing in the nature of the right or estate acquired by the purchase of market stalls to exempt them from the lien of an execution. Such right is "in the nature of an easement in, not a title to, a freehold in the land.

* It is limited in duration to the existence of the market, and is to be understood as acquired subject to such changes and modifications in the market during its existence as the public needs may require. The purchase confers an exclusive right to occupy the particular stalls, with their appendages, for the purposes of the market, and none other." Rose v. Mayor, etc., 51 Md. 270. It is a valuable right, sold by the municipal authorities, under the power conferred by the legislature "to lease, sell, or dispose of" it "in any manner and for any term they may think proper." Public Local Laws, art. 4, § 678. It is transferable, may be given and taken as security for debts, or sold, and special provision is made in the city code for the passage of the title. Savings Inst. v. Wilcox, 63 Md. 531. It is also an interest issuing out of the realty of determinate duration, such as the term of years for which it may be granted, or during the existence of the market. It is a chattel real and personal property (2 Bl. Comm. p. 386), and therefore liable for the debts of the owner, and subject to seizure and sale under a fieri facias (2 Tidd, Prac. 1039).

Subsequent to the sale, by appointment, Mr. Budnitz testifies the "parties in interest" met in his office, on the 9th of December. At that time Green was chargeable with full knowledge of the exact state of the title. He had actual notice of the mortgage, and of the fact that the association held the license as collateral security only for the payment of the debt due to it by Charles Brown. An examination of the records in the orphans' court would have informed him that the administrators had included the market stalls in the inventory of the estate, had obtained an order for the sale, and had sold them, and reported him as the purchaser, without his knowledge or consent. He knew he was not the owner of the stalls, and in

asmuch as it was within his knowledge that Brown wanted to get the stalls free from the claim of the association, and the title in "some individual, where he could pay the money on notes when it came due," it required no especial astuteness to enable him to infer that whatever was done was at the instigation of Brown himself. He states in his evidence that he asked Brown "if the stalls were all right in his name, and he said they were," and that satisfied him. He seems to have made no examination, either among the orphans' court proceedings, or in the comptroller's office. It was under these circumstances that, on the 9th of December, the claim of the association was paid and its mortgage released. The release recites: "Whereas, all covenants," etc., "have been performed, and the whole sum of money and interest secured thereby has been paid, the said body corporate doth grant and release," etc. The receipt of the association is for $2,514.34, of which $1,086.74 was paid by the check of Green. The residue was settled for by the receipt of Brown and wife for $1,427.37, the same being the amount to their credit on the books of the association. The amount so paid by Green's check was part of the $1,200 loaned to Brown, and was so paid at Brown's request. The residue of the loan was paid to Brown. At the same time, Green obtained a transfer of the license from the association, and also entered into an agreement with Brown to sell the stalls to Brown's firm (Brown & Merritt) for $1,200, payable in two years; they to have the possession of them upon payment of that sum, with interest, and the license and all expenses thereon. It is not contended that Green acquired any title or interest in the property by the transfer of the license, superior to the lien of the execution. It is also clear that, up to the date of the sale by the administrators, the equitable title to the stalls was in Charles Brown or his representatives, and after that in Charles W. Brown. So that, when the mortgage was released, its lien was absolutely destroyed, and the lien of the execution became the first, unless, upon some principle of equity, Green can be subrogated to the lien of the mortgagor. Upon this point the counsel for the appellant have cited many decisions of courts beyond the state, but we deem it unnecessary to enter upon an examination of them, for the reason that, as to a case of this kind, the proposition involved has been firmly settled by our own courts, and, we may add, in conformity to the great weight of authority everywhere. Boyd v. Parker, 43 Md. 201.

It may be premised, in view of the facts as we have stated them, that to hold the lien of the association still exists would be to defeat the intent of the parties manifested by declarations and acts in the most unequivocal manner. When Brown obtained the loan from Green, it was well understood by

both of them that the money was to be used in procuring the release of the association's mortgage. This was in fact accomplished by the release from the association. Green, who at the time knew or ought to have known the exact condition of the title, contented himself with taking, as his only security, a transfer of the license from the association, which, he was well aware, held it only as a security for its claim. Why, it may be asked, should not be applied the rule, than which none is better settled, that those who enter into contracts must be governed by them as made, according to their true intent and meaning, and must submit to the legal consequences from them? Boyd v. Parker, supra. Can Green, under these circumstances, derive any aid from the doctrine of subrogation? That doctrine is not founded in contract, but is altogether a creature of equity, and only resorted to to afford relief to a meritorious creditor. It is never applied when, by so doing, it will work an injury upon other persons, by destroying their legal or equitable rights. In Milholland v. Tiffany, 64 Md. 460, 2 Atl. 831, the court says: "It may be applied on equitable principles, in behalf of one who, at the instance and request of the debtor, pays a lien or incumbrance which he was under no legal obligation to pay, provided it does not interfere with intervening rights and incumbrances. It will not, of course, be applied against superior or equal equities." Woollen v. Hillen, 9 Gill, 185; Com. v. Canal Co., 32 Md. 546; Boyd v. Parker, supra; Clabaugh v. Byerly, 7 Gill, 354; Robertson v. Mowell, 66 Md. 538, 8 Atl. 273. For these reasons, we think Green is not entitled to be subrogated to the lien of the mortgage. Finding no error in the order of the court below, it will be affirmed. Order affirmed, with costs.

In re PITMAN'S ESTATE. (Supreme Court of Pennsylvania. Mày 21, 1897.)

WILLS-SPECIFIC DEVISES-PAYMENT OF DEBTS.

Under a will devising a particular field to an adopted daughter, another field to his nephew, subject to a legacy of $500 to a niece, and devising and bequeathing the balance of the land and estate, subject to a bequest of $150 to his adopted daughter, to his wife, all three devises are specific, and must therefore contribute to payment of the debts, for which no provision was made, and most of which were adjudged against the estate after death of testator, on a claim to which he supposed there was a good defense.

Appeal from orphans' court, Fulton county.

In the matter of the estate of George J. Pitman, deceased. From a decree for sale of decedent's lands for payment of debts, and providing that those devised to Elizabeth Pitman should be sold first, she appeals. Reversed.

J. Nelson Sipes, W. R. Gillan, and W. U. Brewer, for appellant. John P. Sipes and Geo. A. Smith, for appellees.

DEAN, J. George J. Pitman died 17th September, 1891, leaving a widow, but no children. He left an estate consisting largely of land, part being a valuable improved farm of 135 acres. Of this, he devised a particularly described field of 20 acres to an adopted daughter, Olive D. Pitman; another field, of 30 acres, particularly described, to his nephew Thomas Johnston,-this last, subject to the payment of $500 to a niece, Pleasant E. Mann. To his wife, Elizabeth, he devised and bequeathed the balance of the land and estate, subject to the payment of $150 to his adopted daughter, Olive D. Pitman; she (Olive), however, to pay the collateral inheritance tax on the field before devised to her. By a codicil, instead of an absolute estate in the balance, he gave to his wife the use thereof during life, with authority to sell, convey, and dispose of the same, and use the proceeds if she thought necessary. If anything remained at her death, then it was to go to certain nephews and nieces in particular allotments. Thomas Johnston accepted the devise of the field, paid the collateral inheritance tax, and the charge of $500 in favor of the niece. Olive D. Pitman paid the collateral inheritance tax on the field devised to her. The testator, some years before his death, had incurred a liability as surety on an administration bond in a considerable amount. Though the bond was in suit at his death, it appears he expected the defense set up would be successful. Therefore he seems not to have had in mind any depletion of his estate on account of this liability, or any other, and made no provision for payment of debts in his will. However, after his death the event of the suit on the bond fixed his indebtedness in this particular at $2,004.49, which, with counsel fees, funeral expenses, and a few other items, made the entire debts for which the estate was answerable $3,064.49. In addition to the land, there was some personal property, which was taken by the widow, the value of which is in dispute, but it was stated by the counsel in argument before as as worth about $600, and for the purpose of ending strife we adopt that valuation in making up our decree. Under these circumstances, application was made by the widow and executrix to the orphans' court for an order of sale to pay debts, with a request that the court direct in what order the land should be sold; she contending that, as widow, the land devised to her should be last resorted to. The two other devisees contended that theirs were specific devises, and the widow's a residuary one; therefore, under the law, the latter must be first subject to payment of the debts. The court below was of opinion that the devise to the widow was residuary, having no semblance of a specific devise, and therefore must be first appropriated in payment of the unanticipated indebtedness.

Without citing the many cases on the question, the reasons for the judgments in them not always being in harmony, one rule, in substance, is announced in all of them. As summarized by Lewis, J., in McGlaughlin v. McGlaughlin, 24 Pa. St. 20, it is this: "On a question of marshaling assets under a will, the residuary clauses necessarily furnish the most important evidence of the intention of the testator, because they dispose of the surplus that remains after satisfying all the other directions of the will. On this account it is very natural to presume that the testator intends to charge upon them all the deficiencies in the other portions of his estate, in paying debts and legacies, and hence it is very generally decided that debts and legacies not otherwise effectively provided for fall upon the residuary devises and legacies." That is, legacies and debts are charged upon the residuary estate because the testator so intended. The intent

us:

is not expressed, but is generally-not always -presumed, because in giving the surplus he gives only what remains after his special benefactions and the lawful demands on his estate are satisfied. The remarks of Woodward, C. J., in Gallagher's Appeal, 48 Pa. St. 121, in discussing the question as to whether a legacy should be charged on a residuary devise, points out the difficulty in a case like the one before "When does a testator make the pecuniary legacies a charge upon the land devised? It would be easy to answer, when he manifests an intention to do so by express language. But it often happens there is no express charge, and language which the testator directed to other objects has to be so construed as to get at his presumed intention upon this particular point." What was the intent of this testator? If it was that his wife was to have only what remained, after the two legacies to his nephew and adopted daughter, and his debts, were paid, then the property devised to the wife must be first sold. It will be noticed that neither in the will nor in the codicil does he speak of debts, and as it is admitted the obligation of suretyship, with the expenses incident to a defense against it, with a trifling exception, constitute his whole indebtedness, it is not probable the testator considered the matter as of sufficient gravity to warrant a direction concerning debts. The principal part of his estate consisted of his 135-acre farm, and he disposes of this first, by giving a particular field of 20 acres to his adopted daughter, then a particular field of 30 acres to his nephew, imposing upon that a specific charge of $500. This left 85 acres of the farm, and his personalty. He then says: "I give and bequeath to my beloved wife, Elizabeth, her heirs and assigns, forever, the balance of all my property, real, personal, and mixed, of what nature or kind soever, and wheresoever the same shall be at death, subject, however, to the payment of one hundred and fifty dollars to my adopted daughter, Olive D. Pitman, before mentioned." It is wholly immaterial that he commences by giving the fields first, and the balance to his

J., in Re Willard's Estate, 68 Pa. St. 327, "The residue of a man's estate, in testamentary language, means whatever is not specifically devised or bequeathed; and, in whatever part of a will it may happen to be found, it ought to have that meaning, unless the whole will, taken together, shows clearly it was not so intended." Taking the whole will together, does it not clearly appear the testator intended three specific devises? Was not the devise to his wife just as specific as the fields to his adopted daughter and nephew? He could just as precisely and specifically have expressed the same intention by saying, "I devise and bequeath to my wife all my estate, real and personal, except the twentyacre field which I devise to my daughter, and the thirty-acre field which I devise to my nephew, subject to a charge of $500." Then all three, it is not questioned, would have been specific. The wife's would have been determined by an inspection of his titles and a schedule of his personalty; the daughter's and nephew's, by pointing out to them the designated fields. It was perhaps more convenient to note the exceptions to the wife's devise first, but in doing so hers was not made less specific. The word "balance" left to her the 85 acres of the farm, and every article of personal property, as specifically as if enumerated and described at length. He does not leave to her a balance, in the sense that she was to have what remained after payment of debts and legacies. She was to have the balance, distinct and specific, after cutting off the two fields. The devise was not a residue of an estate, implying an unknown value or quantity of property by one in conscious ignorance of possible claims or charges. It was a specific devise of the land and a bequest of the personalty, capable of absolute certainty the day after his death, by one having full knowledge of his estate, and believing it subject to no charges except those directed in his will. In view of the testator's surroundings, the character and value of his estate, the objects of his bounty, and the language used to express his intention, there is no room for the presumption that by the use of the word "balance" he meant to give his wife the residue of his estate after deducting the devises specified, debts not known, and other charges. He meant just what he expressed,-a specific devise to her of all his estate after taking out the two devises of the two fields, and the $150 directed to be paid his adopted daughter.

The argument that, the widow having accepted the devise, it must be considered as in lieu of dower, and therefore she must be treated as a purchaser for a valuable consideration, is not sustained by the facts under this will. As pertinently said in the opinion of the court below, "She must certainly accept her devise subject to all the limitations and conditions imposed upon it by the testator, either by express words or necessary implication." Here, by express words, all three were specific de

It is therefore ordered that the decree of the court below be reversed, and it is further decreed by this court that the property of each legatee be subject to the payment of the heretofore specified pro rata amounts, respectively, and each is directed to pay the same to the executrix, to be applied in payment of the aforesaid debt. It is further ordered that, if default be made in said payment by either for a period of 60 days after the filing of this decree, then an order issue from the court below for the sale of the land of the devisee or devisees so in default; on such terms, however, as the court below, in its discretion, may decree. As this litigation arises from an ancertainty of legal right, occasioned by the language of the will itself, it is but just that the costs of this appeal should be borne equally. It is therefore ordered that each devisee pay one-third of same.

HIRSCH v. WENGER et al.
FRAIM v. SAME.

(Supreme Court of Pennsylvania. July 15, 1897.)

FRAUDULENT CONVEYANCE-EVIDENCE.

On an issue between plaintiff, claiming property under execution sale on judgment confessed in his favor for a large amount by his son immediately after defendants commenced action against the son, and defendants, who levied on the property as that of the son, claiming that the confession of judgment and proceedings thereon were fraudulent, defendants may show that at the time plaintiff claimed to have made advancements to the son for which the judgment was claimed to have been confessed he was not of sufficient pecuniary ability to do so, that he was then pressed for money with which to pay taxes, that his real estate was heavily incumbered, and that he was actually insolvent.