Phillips v. Pearson

Bowie, C. J.,

delivered the opinion of this Court.

The preliminary question in this case on the motion to dismiss, is whether there is any final decree, or decretal order, from which an appeal could be taken.

The only entry on the record, manifesting the action of the Court below, is an opinion of the Judge, concluding as follows, “viewing the whole case as it is presented to me, I think this bill cannot be sustained, and must be dismissed with costs as to the defendant Pearson. ”

Upon the filing of which the complainant, without waiting the further order of the Court, on the same day, entered an appeal.

There were several other defendants in this case, as to some of whom a decree pro confesso, and to others an interlocutory decree, had previously been passed. The opinion of the Court made no disposition of the cause as to these parties.

If the paper filed by the Judge in this case can he considered as a final decree or order in the nature of a final decree as to Pearson, it was clearly not so as to the other defendants ; but in our judgment, it can be regarded only as the opinion of the Judge, to be followed by an order or decree, finally determining the rights of all the parties.

In the case of Hagthorp, &c., vs. Hook’s Adm’rs, d. b. n., 1 G. & J., 309, the Chancellor, in his introductory remarks, discussed the principles which he considered applicable to the case¿ and in favor of the appellee, and announced his intention to decree accordingly. To enable him to do which *254 he passed an order directing an account to be stated in accordance with his views. On appeal from that order, Judge Dorsey, delivering the opinion of this Court, said, it was true the Chancellor had distinctly announced what he intended to do, but his intentions formed no ground for an appeal he might abandon or change them ad libitum. “It is only from what he has done, not from what he intends to do, that an appeal will lie.” Reasoning aside, he said, the question was put to rest by the case of Snowden et al. vs. Dorsey et al., 6 Har. & John., 114. There upon a bill filed for a conveyance of land, the Chancellor declared, in his opinion, the complainants’ claim to relief had been established, and ordered an account of the rents and profits preliminary to a final decree. Upon appeal from that order, after argument and a thorough examination of the practice and decisions upon the subject, this Court dismissed the appeal.

So in the case of Roberts et al. vs. Salisbury et al., 3 G. & J., 425 , the Chancellor expressed his opinion upon the merits of the case, and referred the cause to the auditor for an account. An appeal from that order was considered premature.

It may be said that in all these cases the opinion of the Court was the precursor of the order appealed from and indicated a further act to be done, whilst in this case there is no such intimation. Yet the opinion in the present case does not amount to a final act; it concludes with the expression of an opinion, not the announcement of a judgment or decree.

An appeal was allowed in the case of Thompson vs. McKim et al., 6 H. & J., 302 , upon the ground, that the facts on which the order was based were required to be either admitted or established, so as to be open to no controversy at any subsequent stage of the proceedings, and material and irreparable injury was done by the order, let the subsequent decree of the Chancellor be what it *255 mightj or although, no future decree bo ever made. It was attempted to distinguish Hagthorp, &c., vs. Hook’s Adm’rs from Snowden et al. vs. Dorsey et al., by quoting an expression, used by the Court in Thompson vs. McKim, stating that the order passed in Snowden vs. Dorsey bore no impress of the Chancellor’s judicial opinion upon the merits of the case, whereas the order in the case at bar (Hagthorp’s case) did bear such impress. This Court declared the argument rested “ upon a misconception of this expression of the Court.” They did not mean to say that the introductory remarks to the order in Snowden et al. vs. Dorsey bore no impress of the Chancellor’s opinion upon the merits of the case, because the reverse is most palpably the fact; it does bear the impress of his opinion, but not of his “judicial opinion.” The impress of the Chancellor’s “judicial opinion,” in the sense in which the Court have used it, being synonymous with what he has adjudged or decreed.

This emphatic distinction between mere opinion and “judicial opinion,” leaves no doubt of the difference in their legal effect; the former being interlocutory, the other final in its character.

In deference to these decisions, we are obliged to consider the opinion of the learned Judge filed in this cause as an incomplete act announcing his intentions, which he might or might not subsequently change, and not a decree or order in the nature of a decree from which an appeal will lie.

As the Counsel of both parties have argued this case fully upon its merits, as well as on the motion to dismiss, to avoid the necessity for a further appeal to this Court, we will express our opinion as to the law which should govern it in any future proceedings.

The original and amended bill charge that the real estate conveyed by Wright and wife to Phillips by the deed Ho. 5, and afterwards conveyed to Wolfe, was sold by the latter *256 to Pearson, who was in possession of the same, but had received no deed for it, but at the time he purchased, he had actual notice of the deed executed by Wright and wife to Phillips, and purchased with knowledge of the debt due thereon ; that Pearson, since the purchase, had paid part of the debt to Phillips, and admitted in writing the balance of the debt claimed by the complainant’s bill.

The conveyance or instrument No. 5, exhibited with the bill, being the deed from Wright and wife to Phillips, is styled in the proceedings and treated as a mortgage, and the paper writing in Pearson’s hand and signed by him, admitting the balance due, is Exhibit No. 9.

Pearson, in his answer to the original and amended bills, admitted all the facts alleged, but pleaded that as against him, the Exhibit No. 5 was invalid as not having been executed according to the laws of the State, there being no affidavit of the bona fide consideration to said mortgage. Whether the said deed is to be treated simply as a deed of trust or as a technical mortgage, this Court need not now consider, in view of the facts admitted by Pearson and proved in this cause.

If a deed of trust, the decisions of this Court heretofore, in analogous or similar cases, would ten d to show the inapplicability of the provisions of the act of 1846, chapter 271. Charles vs. Clagett, 3 Md., 98 . And if regarded as a technical mortgage, still, inasmuch as Pearson is charged with, and has admitted actual notice in his answer, we hold he cannot protect himself in equity or conscience, as the owner of said premises, from the charge on them.

The object of the act of 1846, chapter 271, as indicated by its title and announced in several decisions of this Court, was to prevent conveyances for pretended considerations in fraud of bona fide creditors and purchasers. 3 Md. Rep., 87 ; 16 Md. Rep., 207 . The act does not declare the mortgage shall be void, but that no mortgage shall be *257 valid and effective, except as against the mortgagors or grantors, unless sanctioned by an affidavit.

Persons claiming by or through the mortgagors and grantors with notice, not creditors or bona fide purchasers, stand in the position of the mortgagors and grantors, otherwise the saving or exception of them in the act would be nugatory. The letter, as well as the spirit of the law, requires this construction; “volenti non fit injuria.”

An act designed to prevent fraud should not be so construed as to promote it.

On this principle, the letter of the Statute of Frauds has been disregarded, in order to preserve its spirit and policy. In allusion to this rule of construction, Lord Redesdale remarks, “ The Statute of Frauds says that no action or suit shall be maintained on an agreement relating to lands which is not in writing signed by the party to be charged therewith, yet the Court is daily in the habit of relieving, where the party seeking relief has been put into-a situation which makes it against conscience in the other party to insist on the want of writing so signed.” Foxcroft vs. Lester, 1 Lead. Cases in Equity.

The facts in this case, as proved by Wright, exhibit Pearson’s responsibility in bold relief. He not only had actual notice of the lien upon the land purchased by him, hut he took it with the express understanding and agreement that he was to apply the consideration to the extinguishment of the debt due and intended to he secured by the deed, and other debts in his hands against Wright, before he obtained his deed ; and the amount still due by him is more than sufficient to pay the complainant’s claim. It would be against conscience to allow a purchaser, taking lands under such an agreement, to repudiate the debt which he engaged to pay as part of the consideration for them. The complainant is entitled to relief upon an amendment of the bill with proper allegations, correspond *258 ing with the evidence, which it will he competent in the Court below to allow.

(Decided 21st June, 1867.)

Appeal dismissed.

Crain, J. Though I did not sit at the argument of this case, I have examined the record and briefs, and conferred with my brothers upon the several questions involved, and entirely concur in the opinion of the Chief Justice.