McCann v. Taylor

A bill alleged, that a husband executed a deed of certain property in trust for his wife and self during life, with remainder in trust for their children, that at the time of making it he was fully competent to do so, because, if indebted at all, he was so only to a very small amount, and retained property in value greatly above any such indebtedness, that the defendant obtained judgment against the husband upon a note executed after the enrollment of the deed, and with actual notice of its existence, and has caused execution to be issued on this judgment, and to be levied upon the property conveyed by the deed, pretending that it was fraudulent as to creditors, and desiring thereby to 'cast shadows and doubts upon the title, so that there may lie a sale of the property under the execution at a gross undervalue, to, the irreparable injury of the complainants, who were the wife and infant children of the husband. Held, that the case thus made authorised the granting of an injunction to restrain execution of this judgment. Upon an appeal from an order granting an injunction, the appellate court is confined to the case made by the bill; the answer cannot be considered.

Appeal from the Circuit Court for Baltimore city. The bill in this case was filed by the appellees, the wife and infant children of Charles R. Taylor, on the 11th of December 1856. It alleges, that Taylor and wife, on the 15th of September 1852, executed a deed of trust to William J. Ward and others, of certain lands in the city and county of Baltimore, for the sole and separate use of the wife, during the joint lives of herself and husband, and after (he death of either, in trust for the survivor, so long as he or she shall remain unmarried, with remainder in trust for their children; that this deed, thus executed by the grantors, was delivered to Ward, with instructions to procure it to be executed by the grantees, and then deliver it to the wife, that she might have it duly recorded, but from misapprehension or inadvertence on her part, or some other cause which the complainants cannot explain, but certainly, as they are assured and verily believe, from no purpose or intent to defraud, hinder or delay the creditors of the husband, and from no improper motive whatever, it was not recorded until the 17th of April 1854; that at the time of its execution, the husband owned property of large value over and above that conveyed by the deed, had retired from business, and his debts were small and far less than the value of his property not included in the deed; that at the time of its enrollment the husband bad not resumed business, his' debts were small in comparison with the value of his available means, occasioned no inconvenience to him, and he entertained no apprehension of his ability to meet all his engagements as they should mature, out of his property not covered by the deed. The wife then avers, that she had no doubt this deed was made in good faith by her husband, and, therefore, united with him in its execution, thereby relinquishing her dower in the property conveyed by it, and on subsequent occasions has united with him in conveyances of other portions of his real estate, for the purpose of facilitating his business operations, and more recently to provide for payment of his debts, and she is therefore advised she is a purchaser for a valuable con'sideration of the interests reserved by this deed to herself and children, and being certainly free from the imputation of fraud or impropriety on her part, and having no notice of any fraudulent or improper motive on the part of her husband in the •execution of this deed, she insists that these interests cannot be impeached at the instance of any of her husband’s creditors, and more especially of any creditor who became such after the enrollment of the deed.' The bill then charges and avers, that McCann recovered a judgment against the husband at March term 1856 of the circuit court for Baltimore county, for $1066.61, with interest from the 5th of March 1856, and costs, and has caused execution to be issued thereon, and has levied the same on the property conveyed by the deed, and is about to sell the same under this execution; that the complainants have understood that McCann pretends that this deed was made in fraud of the creditors of said Charles, hoping and desiring thereby to cast suspicion upon its validity, so that there may be a ‘sale of the estate at a gross undervalue; that this judgment was recovered upon a note of the husband, dated the 13th of February 1855, at four months, after the execution and recording of the deed, and that McCann had actual notice of the making and enrollment of the deed before the time of his becoming a creditor "as aforesaid; that McCann well knows that the complainants have no moneys wherewith they might assist to "pay off this judgment, and will be unable to prevent a sacrifice of their interests in the property as is contrived and intended by him, except by the interposition of the court for their protection; they submit, that McCann becoming a creditor subsequent to the enrollment of the deed, and with notice thereof, ought not to be permitted to proceed with his execution to a forced sale of the property to the sacrifice thereof, and the irreparable injury of the complainants, but ought to be compelled to institute a proceeding to determine the validity of the deed, so that in case it may be adjudged fraudulent as against creditors, provision may be made for the satisfaction of those aggrieved, by a sale of an adequate part of the property, and the residue secured to the complainants; that on the 9th of July 1855, the husband conveyed his contingent interest in the property embraced in the deed to Frederick Schumacker, for the consideration of $1250. The bill then prays for an injunction, to restrain McCann ' from enforcing his execution by a sale of any part of the property conveyed by the deed, and for general relief, and makes McCann, the trustees in the deed, (one of whom was Frederick Schumacker,) parties defendants. On the day the bill was filed, the court, (Krebs, J.,) ordered the injunction as prayed, upon a bond being filed in the penalty of $1000,,and this having been done the writ issued restraining McCann from enforcing his execution by a sale of any part of the property conveyed by the deed. On the 20th of December 1856, McCann filed his answer and entered .a motion to dissolve the injunction, which was set down for hearing on the 7th of January following, but subsequently, on the 28th of January 1857, he entered an appeal from the order granting the injunction, and gave bond to prosecute his appeal, in the penalty of $15,000, fixed by the court, and then proceeded to enforce his execution, by causing the sheriff to advertise the property for sale on the 2nd of March 1857. The complainants then, on the 11th of February 1857, filed a petition in the court below, charging that this proceeding of McCann was a breach of the injunction, and praying an attachment against him for contempt, but the court, on the 26th of the same month, dismissed the petition, and from the order of dismissal the complainants appealed. On the next day the complainants, (the record on McCann’s appeal having been transmitted to the appellate court,) through their solicitor, applied to the Court of Appeals, then in session, by way of petition, alleging, among other things, that their petition in the court below for an attachment had been dismissed by that court, on the ground that the injunction was virtually dissolved or superseded by McCann’s appeal, and praying that he might be restrained from proceeding with his execution pending his appeal, and until the Court of Appeals shall have determined whether the injunction ought to be dissolved or continued.