Dugan v. Gittings

Martin, J.,

delivered the opinion of this court.

It appears from the record in this case, that the original decree was passed by Baltimore county court, as a court of equity, on the 24th of March 1841. The final decree ratifying and confirming the auditor’s report, was pronounced on the 25th of March 1843. An appeal was taken on the part of all of the defendants from this decree, on the 10th of October of the same year, but the appeal which was entered by the infant *152 defendants having been dismissed, the case is presented upon the appeal alone of Mis. Margaret Dugan, John Smith Hollins and wife, and Robert S. Hollins and wife.

In this condition of the case, the counsel for the appellees have contended, that the decree of the 24th of March 1841, not having been appealed from within the period prescribed by the act of 1785, ch. 72, is not now open for objection in this court; that the decree is conclusive as to the matters settled by it, and it must be regarded as establishing the appellee’s right to the property decreed to be conveyed; and also to an account of the rents and profits thereof, from the death of Williami R. Snvith, leaving open only the questions, as to the proper statement and adjustment of that account. The proposition stated by the counsel for the appellees is, that as the decree of the 24th of March 1841, was one from which the appellants had the right to appeal, they were obliged to exercise the privilege, upon the authority of the case of Strike against McDonald, 2 H. & G., 260; and having failed to do so in due time, the matters adjudicated by that decree, are to be regarded as conclusively established, and not now open for objection or examination in this court.

By an Act of Assembly of 1830, eh. 185, sec. 1, it is provided, ‘‘that no appeal shall hereafter be allowed from any decree or order of the chancery court, or county court, sitting as a court of equity, unless it be a final decree, or order in the nature of a final decree; and that upon appeal from a final decree or order, in the ñatee of a final decree, within the time limited by law for such appeals, all previous orders and decrees passed in the cause, shall be open in the appellate court, in the same manner as if such previous orders or decrees had been as heretofore appealed from, within nine months from the time of the passing of the same.” These are the provisions of the act of 1830, and it is clear, that if that clause of the first section, which declares, that upon an appeal from a final decree, all previous orders and decrees passed in the cause, shall be open in the appellate court, is still in force, the right to inquire into the correctness of the decree of 1841, belongs to the appellate court, for it has been conferred by the express terms of the *153 statute. The language of the act has been made so comprehensive, as to embrace all orders or decrees, whether they are matured decrees, professing to establish all the rights in controversy between the parties, as in the case of Strike against McDonald, 2 H & G., 260, or mere interlocutory and preparatory orders, as in the case of Snowden against Dorsey, 6 H. & J., 114 . If the order or decree in dispute, was passed in the cause, and was previous to the final decree, it becomes open for revision in the appellate court, by force of the veiy words of the statute. The only question, therefore, that can arise on this branch of the case is, whether this clause of the first section of the act of 1830, has been repealed by the act of 1841, ch. 11?

By the first section of that act, it is declared, “that so much of the first section of the act of 1830, ch. 185, as takes away the immediate right of appeal from any decree or order of the court of chancery, or any county court, for the sale, conveyance or delivery of real or personal property, be, and the same is hereby repealed; and that from any such decree or order heretofore, or hereafter to be passed, the right of an immediate appeal is hereby given;” and we are satisfied, that although the legislature have directly repealed that branch of the first section of the act of 1830, which denied to the defendant the privilege of appealing from any decree which was not final in its character, and restored to him the right of an immediate appeal, from the particular decrees enumerated in its first section, they have left in force that part of the section which declares, that on an appeal from a final decree, all previous orders shall be open in the appellate court, in the same manner as if such orders had been, as heretofore, appealed from.

It is perfectly obvious, from an inspection of the act of 1841, that the legislature did not contemplate a total repeal of the act of 1830. To what part then of the act of 1830, did they propose to apply the repealing power? An answer to the question is to be found in the words of the first section, which declare, that so much of the antecedent act as takes away the immediate right of appeal from any decree of the court of chancery, for the sale, conveyance, or delivery of real or personal pro *154 perty, is repealed; and it is manifest, that the object was to repeal only that portion of the former act, which had abridged the right of appeal. The Court of Appeals had decided, in the December term 1840, in the case of Lee against Pindall, 11 G. &. J., 364, that the object of praying an appeal, and filing an appeal bond, under the proviso contained in the first section of the act of 1830, was not to effect an immediate removal of the cause to the Court of Appeals, but that it merely suspended the execution of the decree, for the sale or delivery of the specific property, until a final decree was passed, when the whole case might be brought up for review in the appellate court; and the legislature, believing that a party ought to possess the right of appealing immediately from decrees of this nature, repealed, in this respect, the act of 1830, without, however, imposing on the defendant the obligation of appealing from such decree, or depriving him of the right of having it reviewed in the appellate court, on an appeal from the final decree, as secured to him by one of the provisions in the former act.

There is, we think, no ground for contending, that the provision in the act of 1830, under which the appellants have claimed the'right to subject to the review of this court, the decree of the 24th of March 1841, has been repealed, either directly or by implication. These two statutes being in pari materia, are to be construed together. A latter statute on a given subject, not repealing an earlier one, in terms, is not to be taken as a repeal by implication, unless it is plainly repugnant to the former, or unless it fully embraces the whole subject matter. 20 Pick., 410 . 21 Pick., 297 . 9 Cow., 437 . 5 Hill, 221 . 11 Coke, 63. Dwar. on St., 675.

Having disposed of this preliminary point, and considering the whole case as properly before us, we proceed to an examination of the grounds, on which the appellants claim a reversal of the decree, pronounced by the county court.

The first point made in the cause, and that which was pressed with most emphasis, is, that the appellees have entirely failed to establish by evidence, the existence of any such contract or gift, as is charged in the bill, and that Cumberland Dugan *155 never gave or promised to give, the property mentioned in the hill, to the mother of the appellees, as a marriage endowment.

The bill alleges, that the late Mr. and Mrs. Smith were married in the month of October 1798. That the alliance was .contracted with the knowledge and the approbation of Mr. Cumberland Dugan, the father of Mrs. Smith. That Mr. Dugan was also the father of Mrs. Purviance, and that after she had become engaged, he, in the autumn of the same year, gave to her as a marriage portion, the house in which the Judge and Mrs. Purviance now reside. That he was at this time a man of ample fortune. That having advanced one daughter, and the other being at the time addressed, with his approbation, Mr. Dugan deemed it proper and just, to make a similar provision for his daughter, Margaret, by way of advancement, and in contemplation of her marriage with Mr. Smith. That accordingly, a short time before the marriage of Mrs. Smith, he announced his determination to give to her the house in Cumberland Roio, (the subject of the present controversy,) and that he in fact, did give to her, in fee, the house in question, a short time before the celebration of the marriage, as a marriage portion. That this establishment was prepared for the reception of his daughter, and she was placed in possession of it, by Mr. Dugan, as her own property. That these arrangements were known to the husband. That their nuptials were celebrated there. That they continued to reside in this house until the spring of 1799, and from that period to the time of the death of Mrs. Smith, she was in the enjoyment under the gift, of the rents arising from this property, with the knowledge and consent of her father, and that the rents were sometimes paid to her, either by Mr. Dugan or his agent.

The object of the bill is two-fold. First, to procure a conveyance of the house and lot in controversy, to the complainants, from the devisees of Cumberland Dugan; and as consequent upon the assertion of a title to the property, an account and payment of the rents received by Mr. Dugan.

These are the material statements and allegations of the bill, and we are satisfied that they have been fully established by the testimony in the cause.

*156 The delivery of the possession of this house to Mrs. Smith, prior to her marriage, as her own property under the gift. The feet that she resided there with her husband until the spring of 1799, and then removed, only that Mr. Smith might prosecute with more convenience, the affairs of a partnership, which had been concerted by Mr. Dugan, between Mr. Smith and the brother of Mrs. Smith, in die business of the Rope Walk. The payment of the rents issuing from this property by Mr. Dugan, or his agent, until within a few months before the death of Mrs. Smith, and then withheld that they might be applied by Mr. Dugan to the discharge of some responsibility in which he had become implicated for Smith. The declarations of Dugan, before the marriage, and after it had been solemnised, that he intended to give, and had given this property to his daughter as a marriage advancement or portion, and his declaration after the death of his daughter, “that it was her property, and should go to her children,” constitute a mass of proof upon the factum of the gift, which it is impossible to resist.

It is true that a mere verbal, voluntary, executory agreement, although founded on the meritorious consideration of love and affection, cannot be enforced by a court of equity, and the party who made it may, at his will, violate or abandon it. In Pennington vs. Gittings, 2 G. & J., 217 , this court said: “The consideration of natural love and affection is sufficient in a deed, but a mere executory contract that requires a consideration, cannot be supported on a consideration of blood, or natural love and affection; there must be something more, a valuable consideration, or it is not good, and cannot be enforced at law, but may be broken at the will of the party. And being void at law for want of a sufficient consideration, chancery cannot sustain and enforce it.” 2 Story’s Com. Eq., Sec. 987.

But this is not the character of the contract now under examination. Having been made in contemplation of, and as a manlage endowment, it has for its support a valuable consideration. It cannot be revoked or violated at the will of the party who made it. The marriage was a consideration which vested the interest in the donee against all the world; she is to be re *157 garded as a purchaser, and as much so as if she had paid for the property an adequate pecuniary consideration, 1 Jno. Ch. Rep., 271. It cannot be necessary to cite authorities to maintain the proposition, that marriage is to be regarded as a valuable consideration. In Buchanan vs. Deshon, 1 H. & G., 192, the Court of Appeals, in speaking of a marriage contract, say, that it was founded upon a consideration which was valuable, and one upon which the law looks with a favorable eye. The same doctrine is announced by the Supreme Court in the case of Magrew vs. Thompson, 7 Pet., 333 . The late Mr. Justice Story, stating in the opinion of the court, delivered by him, “that marriage, in contemplation of the law, is not only a valuable consideration, but is a consideration of the highest value, and from motives of the soundest policy is upheld with a steady resolution.”

We are, also, very clearly of opinion, that the delivery of this property by Mr. Dugan to his daughter, in pursuance of the gift, and the fulfilment of the condition on which it was to attach, by the consummation of the marriage, extracted this contract from the reach of the statute of frauds. The consummation of the marriage, in a case like this, is to be considered as equivalent to the payment of the purchase money in a pecuniary contract, in both cases the consideration is discharged. There is to be found then, in this case two ingredients, which when combined, have always been regarded as relieving the parol agreement from the operation of the statute,—performance of the consideration, and a change of possession under the contract. Drury vs. Conner, 6 H. J. 292 2 Stor. Com., Sec. 763. 1 Sug. V., 143. 18 Ves., 328.

Before we leave this branch of the case it is proper to state, that we do not consider the answer of Mrs. Margaret Dugan as within the general rule, that an answer asserting a fact responsive to the bill can only be disproved by two witnesses, or one witness with strong corroborating circumstances. The doctrine on this subject is stated with great perspicuity and precision by the late chief justice of this court, in the case of Pennington vs. Gittings, 2 G. & J., 215 , and is directly applicable to the question before us. He says:—“A plaintiff, by calling on the *158 defendant to answer the allegations in his bill, upon oath, makes the answer evidence; and as one witness would only be equivalent to the answer, and the plaintiff to prevail, must have preponderating proof, it is necessary that he should have another witness, or circumstances in addition to the testimony of one, in order to turn the scale. But looking to the answer as testimony only, it must be treated as any other testimony, and the weight of it must, from the veiy nature of evidence, in some degree depend on the fact it asserts. Therefore, when an executor or administrator answering in his representative character, alleges facts of which he can have no personal knowledge, it can but amount to an assertion of his impressions, and his speaking positively cannot alter the character of his testimony, merely because it comes in the shape of an answer, but must be allowed its due weight only, and is not entitled to the full influence of the answer of a man, speaking of facts which may be within his own knowledge. And upon the obvious principle, that when a witness asserts a fact, of which further developments in the course of his examination prove him to be in a situation to prevent his having a full knowledge of the subject, his testimony is not entitled to the weight of that of a man swearing to facts which may be fully within his knowledge. The answer in this case is of that description, and is not, we think, such as to require the testimony of two witnesses, or one with circumstances to out weigh it. But as it does not admit the allegations in the bill, it puts the complainant on proof, and leaves him to sustain them as he can, unembarrassed by any supposed responsive features of the answer.” 9 Cran. R. 160. The principle which withholds from an answer of this description, the weight to which it would be entitled, if it came from the party to the transaction, cannot be changed by tire period at which the complainant may have filed his bill, no matter by what motives he was influenced in postponing the institution of his suit, because the answer being in its nature testimony only, the influence to be attached to it must always depend on the fact it asserts, and the position of the party who makes the assertion.

*159 Assuming that the gift claimed by the appellees was originally made, and so made and executed as to have been valid in law against the donor or settlor, we do not think that the proof in the cause shews, as has been maintained by the counsel for the appellants, the substitution of another property, (described as the Rope Walk,) in place of the house in contest, by the consent of all parties concerned, even if the appellants could avail themselves of this ground of defence under the pleadings in the cause.

Mrs. Smith died in 180G. The deed from George Dugan to Judge Puroianee, as her trustee, conveying the property described as the Rope Walk, was executed on the 1st of June 1803. And yet we find Cumberland Dugan paying to his daughter the rents of the property in Cumberland Row, to within a few months of her death, and after her demise affirming that the house belonged to her, and should go to her children. These facts are entirely inconsistent with the idea, that there was, with the consent and understanding of all parties, a substituted gift of another property for that which was originally given.

It appears, also, that so far from the independent matter thus relied on, having been advanced by the answer as a ground of defence, the argument presupposes the existence of an agreement and gift, which the answer directly repels, and it may perhaps be doubted, upon the case of Boon vs. Chiles, 10 Pet., 209 , whether it would have been competent for the appellants to have availed themselves of this defence, under the pleadings in the cause. We do not mean, however, to determine this question, and overrule this objection to the decree, on the ground that there is no evidence to support it.

The propositions which we propose next to examine, are those presented by the pleas of the statute of limitations and lapse of time. This defence has been taken by the answer, and the enquiry is, has it been sustained?

It is clear, that William R. Smith was entitled to a life estate, as tenant by the curtesy, in this equitable inheritance of his wife. 1 Rop., 19. 5 Mad. R., 249. And the principle is now established by the case of Morgan against Morgan, 5 *160 Mad. R., 248, that the husband is tenant, by the curtesy, of the equitable inheritance of his wife, notwithstanding a direction to pay the rents and profits to her separate use, during the coverture j the receipt of the rents and profits being a sufficient seisin in the wife. The Vice Chancellor adopted the opinion of Lord Hardwicke,. in Roberts against Dixwell, 1 Atk. 603, as containing the true doctrine on this subject.

The interest of William R. Smith, in this estate, passed to Cumberland Dugan, as his assignee, by force of the deed of the 13th of August 1801, and Dugan must be regarded as occupying the property, in this character, until the death of Smith, in 1818. It is manifest, therefore, that no cause of action had accrued to the appellees, in respect to this estate, until 1818, when their father died. At this period, then, for the first time, the statute of limitations was put in motion by the adverse claim of Dugan.

It appears that one of the appellees, Mrs. Eleanor Gittings, was of age in July 1820, and married in the spring or winter of' 1821 j and that Mrs. Rebecca Gittings attained the age of twenty-one years in 1825, and was married in 1822. And notwithstanding, in the case of Mrs. Rebecca Gittings, there was coverture before the termination of her infancy, it was not competent for her to avail herself of any other disability than that of infancy: the disability that existed at the time her cause of action accrued. The doctrine upon this subject, was correctly stated by the counsel for the appellants, and not disputed by their opponents. The rule is this: a party is protected by the disability that exists at the time his right of action first accrued, because the case is within the express terms of the saving clause in the statute. For the same reason, if there are in existence several disabilities, at the time the right of action accrues, the statute does not begin to run until the party has survived them all. But it is now firmly established, that you cannot prevent the operation of the statute by cumulative disabilities. 3 J. Ch. R., 138. 4 Mass. R., 182 . 7 Serg. and R., 210. Mercer vs. Selden, 1 How., 52 . The whole doctrine was examined with elaborate care by Chancellor Kent, in the case of Demarest against Winkoop, 3 J. Ch. R., *161 138, and the opinion pronounced by him, has been received as containing the correct rule upon the subject. If subsequent disabilities were to be regarded, the right of act ion might be saved for centuries; and the statute would be rendered incapable of accomplishing the important purposes for which it was passed.

The bill was filed on the 3rd of January 1837, and as between that period and 1818, when the right of action accrued, twenty years had not elapsed, a right of entry in the plaintiffs would not have been tolled, had they been clothed with the legal title, and a court of equity,- in applying the statute of limitations analogically, would not permit the claim of a party to be affected by any devolution of time, short of that which Would have barred them at law, in an action of ejectment. 10 Wheat., 152 . We think, therefore,■ the appellee’s claim to the property is not barred, either by limitations or lapse of time.

It has, however, been contended by the counsel for the appellants, that although the appellees are not barred, so far as their claim for die property is concerned, yet they are haired by limitations and lapse of time, from recovering any rents, except such as were received by Mr. Dugan, within three years before the filing of the hill. The ground upon which this argument lias been placed is, that it would have been competent for the plaintiffs, on the case made in their bill, to have recovered the rents from Dugan, in an action of indebitatus assumpsit, and it was a case, therefore, of concurrent jurisdiction, between the courts of equity and law.

It is hue, that the statute of limitations, in all cases of concurrent jurisdiction at law and in equity, is equally obligatory in each court. In such cases, courts of' equity do not act so much in analogy to the statute, as in obedience fo it. They apply the statute as it would have been applied at law. In Murray against Coster, 20 J. R., 583, Chief Justice Spencer said:

“All,- however, 1 mean to deduce from this consideration is, that it is impossible in a case like this, where there was ample remedy at law, that flie change of ihc forum should produce a *162 change in the rights of the parties; for beyond all doubt, had the respondents sued at law, the appellants could have pleaded the statute; whether successfully or not, remains to be considered. I have, therefore, no hesitation in saying, that in a case where there is a concurrent jurisdiction in the courts of common law and of equity, the rule must be the same, and the statute of limitations may be pleaded with the same effect in the one court, as the other.”

The same doctrine is announced by Chancellor Kent, in 7 J. C. R., 124, Kane vs. Bloodgood, where he says:— “1 understand this proposition to mean, that if the party has a legal title, and a legal right of action, and instead of proceeding at law, resorts to equity; instead of bringing his action of account, or detinue or case for money had and received at law, files his bill for an account, the same period of time drat would bar him at law, will bar him in equity. This is the principle that pervades the cases.” 2 Sh. and Lef., 607.

This being the principle by which courts of equity are governed, in the application of the statute of limitations, if the counsel for the appellants could have maintained the proposition, that the appellees had a remedy at law for the recovery of the rents, the statute would have operated as a positive bar.

But it is clear, we think, that the rents and profits of this property could not have been recovered at law, by the appellees, either in indebitatus assumpsit, or any other form of action. .

It is evident, that in a case like this, the right to the rents would be consequent only upon the successful assertion of title to the property, and as this contract, resting in parol, would have been absolutely void at law,' no recovery in that court could have been obtained. The doctrine of part performance is peculiar to the chancery courts, and is not regarded at law as taking a case out the statute of frauds. Jackson vs. Pierce, 2 J. Rep., 222.

Another insuperable objection to the maintenance of an action at law, would have been, that in that court the plaintiffs could not have stood upon their equitable title.

In Mathews vs. Ward, 10 G. & J., 456 , the Court of Appeals declared, that the doctrine of Lord Mansfield, in *163 3 Bur., 1901 , has been receded from, and that it-had been repeatedly decided, that the legal estate shall prevail against the equitable title. In Doe vs. Wroot, 5 East, 138, Lord Ellenborough says: “We can only look at the legal estate; if the devisees have an equitable interest, they must claim it elsewhere, and not in a court of law.” 7 East., 22. 2 John. Rep., 226 .

fn Welsh vs. Welsh, 5 Ohio R., 430, it is said: “Does it follow that because the plaintiffs have an equitable claim against the defendant, he can enforce this claim if lie sues in assumpsit. If he prosead es his suit in a court of law, he must in ussum/psil, as well as in any other form of action, show that he has a legal right of action. When this is shown, the action will be governed by equitable circumstances.”

The same proposition is established in Kane against Bloodgood., and would have been held by a court of law, as fatal to the recovery of the plaintiffs. Chancellor Kent, in speaking of the case of Lawly against Lawly, 9 Mod. R., 32, says: “In this case, lands were settled, by will, on trustees; and one of the trusts was, that if the son’s wife survived, she was to receive the rents and profits of the land, as the same were at that time let. Her husband, afterwards, greatly increased the rent, and upon his death, his wife enjoyed the whole of the rents, making no distinction between the original and the additional rent. A number of years after her death, her executor was sued by the devisee in tail, being a grandson of the testator, for an account of the surplus rents received by her, and by her executor. The plea of the statute of limitations was overruled, because the estate in law was in trustees, and the executor was decreed to account for the improved rents received by her, or by him, since her death.”

There is no reason given, the Chancellor says, for this decree, but what is to be inferred from the single observation, that the estate in law was in trustees, and that must be understood to mean, that the plaintiff in the bill had not the legal title, and could not have maintained an action at law. Again, he says: “It was a suit by one cestui que trust against the representative of another cestui que trust, for receiving more of the rents than belonged to her; and I can see no reason why, as between *164 them, the statute could not have been applied, unless we adopt the plain rule, upon which alone the decision is intelligible and just, that tire plaintiff was a cestui que trust, loitlwut any title or remedy at law.” 7 J. Ch. Rep., 115. Without pursuing this subject further, or adverting to other objections that might have been raised against a recovery at law, we think that the only remedy open to the appellees is, that which they have adopted, the assertion of their title to the property in a court of equity, and as consequent upon that title, an account and payment of the rents and profits. In our opinion, therefore, the court below committed no error in overruling the plea of the statute of limitations.

It is scarcely necessary to add, that we do not adopt the proposition supposed to have fallen from the learned Chancellor, in the case of Caborne vs. Godfrey, 3 Dessaus. 517, that in controversies between parties standing in tire relation of parent and child, “the statute of limitations does not apply, and time is unimportant, ’ ’ for the plain reason, that the court have no power to interpolate into the statute new exceptions and provisions. But we place our opinion on the ground, that as the bill was instituted by the appellees, within less than twenty years from the period at which their right of action accrued; and as their claim for an account and payment of the rents was incidental to, and consequent upon their assertion of title to the property, they are not barred by either limitations or laches.

We think, however, that the decree of the county court was erroneous on the question of assets.

In Evans vs. Iglehart, 6 G. & J., 197 , this court said, “the rule upon the subject of assets is different in the court of equity from what it is at law. Where you seek to charge an executor or administrator, in his representative character, before the latter tribunal, assets are presumed, unless as a fact it is put in issue by the pleadings, but before the former tribunal, assets in his hands, must be alleged, and if denied or not admitted, must be proved.” In Warfield vs. Gambrill, 1 G. & J., 511 , it was decided, “that a respondent submitting to answer must answer fully, but if the answer be defective, and insufficient to meet the allegations and interrogatories of the bill, the complainant., *165 desiring a further response, must except to the answer. If he do not, he cannot rely on the silence of tire respondent in relation to any material allegation, but must prove it. ’ ’ And in Young vs. Grundy, 6 Cran., 51, the Supreme Court say, “that if the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing.”

Mrs. Dugan states, in her answer, that she has received, as the executrix of Cumberland Dugan, the assets shewn by her return to the Orphans court., which she is prepared, when required, to produce. Surely this cannot be regarded as an admission of the sufficiency of assets, unless upon the principle asserted in Smith vs. Smith, 4 Paige, 272 , “that as the executrix does not in her answer stat e that there is any deficiency of assets, the court must presume there is sufficient for the purposes of the suit.” A proposition directly in conflict with the decisions, both of this and the Supreme Court.

The decree below, in this respect, was clearly erroneous, and as the objection is directed not against any vice or infirmity in the bill, or to the competency of witnesses, or to the admissibility of testimony, but because the complainants failed to establish, by proof, a material allegation in their bill, the appellants are not precluded, by the act of 1832, ch. 302, from raising it, in this court. 7 G. & J., 155 .

It appearing to us that the substantial merits of the case will not be determined by affirming or reversing the decree of tiro county court, and that the purposes of justice will be advanced by permitting further proceedings therein, and further testimony to be taken in relation to assets, in pursuance of the 6th section of the act of December session 1832, ch. 302, the cause will be remanded to Baltimore county court, as a court of equity.

CAUSE REMANDED,