Summary
Appeal from the Superior Court of Baltimore City.
In this case a petition was filed by the appellant on the 10th of February, 1866, in the Orphans’ Court of Baltimore City. After alleging the death of Daniel Cooke in September, 1857, and his execution of a last will prior to his decease, by which she anil her mother were made legatees of all his estate after payment of his debts, and the appointment of the appellee, his brother, as executor, she charged that he had become possessed *of personal property in a coach factory on Calvert street, Baltimore, to the amount of some $5,000, and book accounts and claims to the amount of some $2,000, belonging to the said Daniel; and further, that he had never made any return of the same to the Orphans’ Court of Baltimore City. She admitted, however, that the appellee claimed to hold the said personal property on Calvert street by virtue of a bill of sale, a copy of which, marked J. C., was filed with the petition, but she charged that said instrument was only intended as a mortgage to secure the payment of $1,500, which was paid by Daniel prior to his death. She alleged the death of her mother, in 1863, intestate, leaving children and descendants of children, all of whom, with the exception of John Cooke, one of the appellee’s securities, had assigned their interests in the estate of her mother to her. The petition prayed that the appellee might be required to return a correct inventory of all the property, and a correct list of all the book accounts and claims, collected or uncollected, to be duly administered under the direction of the court, and that the instrument of writing, purporting to be a bill- of sale, might be declared null and void, from having been paid, and for general relief. Subsequently, the appellee appeared and answered the petition. He admitted the death of his brother Daniel, the execution of his last will, and the issue of letters testamentary to himself, but he denied that, as such executor, he had received the property on Calvert street, and that his brother died the owner thereof, but claimed the same as his own, under the bill of sale referred to, and denied that said bill of sale was intended as a mortgage, and excepted to the jurisdiction of the Orphans’ Court in such case. He offered to produce in court all the books, papers and accounts, but stated that he had used every means, both by his own exertions and that of a competent collector, to realize the claims, but had never been able to collect one dollar of them. He alleged that, for a series of years before the death of his brother, he was in the habit of furnishing him money to carry on his business *as a coach-maker; that at the time of his death he was largely indebted to him, the respondent, and that since his death he had paid debts contracted by his brother, and that there was now due and owing to him in the neighborhood of $2,300. He admitted the death of the petitioner’s mother, but knew nothing of the assignment from her heirs at law to the petitioner.
After the coming in of this answer, the appellant filed another petition, praying that the following issues might be made up and transmitted to the Superior Court of Baltimore City, and the same was accordingly done.: '
1. Did Israel Cooke, as executor of Daniel Cooke, come into possession of assets belonging to the estate of Daniel ?
2. If there were such assets, what was the amount thereof?
3. Was the instrument of writing, marked Exhibit J. C., intended to operate only as a mortgage for the security of the sum of fifteen hundred dollars as therein named?
4. If the Exhibit J. C. were intended to operate as a mortgage only, has the sum of fifteen hundred dollars, intended to be secured thereby, ever been paid?
The jury found a verdict for the defendant, upon all the issues.
The following exceptions were taken by the plaintiff at the trial below.
First Exception. — The plaintiff offered in evidence the declaration of Daniel immediately preceding his death, that he had told his mother, “ there would be three to four thousand dollars coming to her and her daughter, after paying his creditors,” and then proposed to give in evidence other declarations, made shortly before his death, to the effect that “ he had used the name of Israel in his business without the benefit of a dollar from him, and thatfif he attempted to sell his effects after his death, to appeal to his brother John, who would prevent him.” To the admission of these declarations the defendant objected, and the court (Martin, J.,) sustained the objection; the plaintiff thereupon excepted.
*Second Exception. — The defendant offered evidence, showing that he furnished all the money to carry on the coach-factory and to. pay the notes that were given for carrying on the same, a number of which were offered in evidence. To the admission of this evidence, as also to all that relating to transactions between the defendant and Daniel Cooke, the plaintiff objected, but the court overruled the objection and allowed the same to go to the jury. The plaintiff excepted.
Third Exception. — The plaintiff offered five prayers, but subsequently withdrew the first; the others are as follows:
2. That if the jury shall find from the evidence that the paper writing offered in evidence by the defendant, purporting to be a bill of sale, was intended as a security for the loan of money by the defendant to Daniel Cooke, or any such indebtedness or liability in any way incurred, or to be incurred by the defendant, on account of the said Daniel Cooke, then they must find as assets under the first and second issues in this cause, all the property that they may find was in the coach factory on Calvert street at the time of the death of said Daniel Cooke, or its value, without deduction for any indebtedness whatever by the said Daniel Cooke to the said defendant, if they shall believe there was any such indebtedness.
3. That if the jury shall find from the evidence that there were debts due to Daniel Cooke, which debts came into the hands of the defendant/then they must find all such debts to be assets, and that they cannot make any deduction from such assets on account of any money paid by the defendant for said Daniel Cooke, or that was due to the defendant by said Daniel Cooke.
4. That if the jury shall find from the evidence that the said Daniel Cooke was carrying on the business of coach making, as principal or owner, in the house on Calvert street, previous to the 18th of September, 1856, the date of the bill of sale offered in evidence by the defendant, (if they shall find there was such a bill of sale,) and shall also find that the said Daniel continued in possession and carried on the *business of coach making in said house, after said date, in his own name and by his direction, in the same manner as he had done previously thereto; that he was dealt with and recognized in the community as such principal or owner, and that in the transaction of said business, materials on hand were constantly being wrought up into work and sold, and new materials and new work substituted in their stead; and shall find that, at the death of said Daniel Cooke, there were materials on hand and finished work wrought out of materials that were not included in said bill of sale, then, although they may find the defendant furnished certain money to carry on the business and became responsible to pay, and did pay certain indebtedness incurred on account of the same, they must find all such substituted, or other property, or its value, that they may find was not included in said bill of sale, as assets under the first and second issues in this cause, without any deduction for payments by the defendant, (if any such they shall find,) with interest thereon from the date of sale, as testified to: provided they shall believe from the evidence that the said money furnished and responsibility incurred (if they shall find the same) was furnished as a loan to said Daniel, and the said liability incurred as security for him, and not as the principal or owner of said coach manufacturing business.
5. That if the jitry shall find from the evidence there were any book accounts or debts collected by the defendant, that were owing to the said Daniel Cooke, they must find the same as assets under the issues in the cause, and add interest thereon from the time when they shall find the same were collected.
And the defendant offered the two following prayers:
1. That if the jury find from the evidence in the cause, that on the 18th of September, T856, Daniel Cooke executed to the defendant the bill of sale of that date, offered in evidence, and that thereafter the defendant furnished the money and credit for carrying on the business referred to in the evidence, and that with such money and credit and the proceeds *of the goods and effects mentioned in said bill of sale, the carriages and other articles in the building referred to in the evidence, which were there at the death of Daniel Cooke, were purchased and constructed, then such articles were the property of Israel Cooke, and not assets belonging to the estate of Daniel Cooke, deceased.
2. That there is no sufficient evidence in the cause from which the jury can find that the bill of sale, offered in evidence and referred to in the third issue, was a mortgage, and not an absolute bill of sale, and therefore their verdict must be for the defendant on the third and fourth issues.
The court rejected the prayers of the plaintiff, and granted the first prayer of the defendant, with the following addition thereto: But if the jury shall find that the goods and effects in the factory, at the time of the death of Daniel Cooke, were not included in the said bill of sale, then they are to be considered by the jury as assets, unless they find to be true the facts stated in the preceding part of the prayer.
The court also rejected the defendant’s second, prayer, and gave the following instruction to the jury :
I instruct the jury that on the pleadings in this case, they are not at liberty to find that the instrument of writing, marked Exhibit J. C., was intended to operate only as a mortgage for the security of the sum of fifteen hundred dollars, and that their verdict on the third and fourth issues must be for the defendant.
To the refusal of the court to grant the prayers of the plaintiff, and also the instructions which it gave, the plaintiff excepted and the verdict being against her, she appealed.
The declarations of Daniel Cooke, which were excluded by the court, were confirmatory of the testimony of all the other *witnesses for the plaintiff, which went to prove that the coach factory belonged to Daniel and not to Israel Cooke. It also tended to establish the point that the bill of sale in question was intended as a security, and was not absolute. This court has decided that the declarations of a grantor, in some cases may be received, when the effect is to impair the title of those claiming under him. And this is true of declarations made either before or after the execution of the paper. McDowell v. Goldsmith, 6 Aid. 319, 338, 344; Dorsey v. Dorsey, 3 H. & J. 410, 426; Curtis v. Moore, 20 Md. 93; Richards v. Swan, 7 Gill, 374; Willies v. Farley, 14 E. C. L. 367.
The testimony of Israel Cooke, to prove that he furnished all the money to carry on the coach factory, and paid all the notes given for carrying on the same, and also the evidence of transactions between him and Daniel, being from a party litigant and in interest, was inadmissible under the Act of 1864, ch. 109, sec. 2, and the Act of 1868, ch. n6, sec. 1.
The defendant’s first prayer, should not have been granted. First, because it was based almost entirely upon the testimony of Israel Cooke, as to transactions between him and Daniel Cooke, which ought to have been excluded. After submitting the factum of the bill of sale to the jury, it asked them to find “ that thereafter the defendant furnished the money and credit for carrying on the same business referred to in the evidence, and that with sitch money and credit, and the proceeds of the goods and effects mentioned in said bill of sale, the carriages and other articles in the building, referred to in the evidence, were purchased and constructed, and if they so find, then such articles wrere the property of Israel Cooke.” There is not a particle of testimony, outside of Israel Cooke’s, to prove the above hypothesis. Secondly, because it took from the jury the terms upon which the said money was furnished, viz: whether on said Israel’s account alone, or as a loan to or security for Daniel.
*And for the same reasons, the fourth prayer of the appellant ought to have been granted.
A mortgagee of goods in a store has no interest in, or lien upon goods subsequently purchased out of proceeds of sale of those mortgaged, etc., and substituted in their stead. Rose v. Sevan, 10 Md. 466.
The instruction given by the court instead of the second prayer of the defendant, which it rejected, is based upon the ground that the averments of the petition were insufficient. On the contrary, the appellant submits that they were sufficient.
No mater how absolute a conveyance may be upon its face, if the intention is to take a security for a subsisting debt or for money lent, the transaction will be regarded as a mortgage; and specific allegations of fraud will not be necessary, where the same is admitted in the answer, or shown in proof, etc. $rtz v. Grove, 21 Md. 456,474, and cases there cited; Bank of Westminster v. Whyte, 1 Md. Ch. 539; Hicks v. Hicks, 5 G. & J. 76; Seighman v. Marshall, 17 Md. 550; Ing v. Brown, 3 Md. Ch. 522; Farrell v. Bean,' 10 Md. 230; 2 Story’s Eq. Jur. secs. 1018-1020. See also Russell v. Southard, 12 How. 139; and Dougherty v. McCoigan, 6 G. & J. 275, as to what is a sufficient allegation of fraud.
The proceedings in the Orphans’ Courts in matters of this kind, and their jurisdiction over them, are similar to proceedings and jurisdiction in chancery in such cases.
Orphans’ Courts have full power to examine and decree upon all accounts, claims and demands, and to try questions of title between creditors or legatees and executors. Code of Pub. Gen. Laws, Art. 93, secs. 230, 231, 238, 239, 240, 249; Spencer v. Reagan, 9 Gill, 481.
An administrator is not allowed to retain for his own claim, or for any claim discharged by him, unless passed by the Orphans’ Court. Code of Pub. Gen. Laws, Art. 93, secs. 97, 98.
*For these reasons, therefore, the second prayer of the appellant ought to have been granted. The appellant’s third prayer is based upon the ground that book accounts are assets. They are so regarded by the laws of Maryland, Code of Pub. Gen. Laws, Art. 93, secs. 239, 240, and are then placed in the same category as an inventory of personal property; and upon failure of the executor to return them, issues may be made up by'the Orphans’ Court and sent out. This is especially the case with all such accounts or debts as can be shown to have been collectible, with proper diligence, but have not been, for want of it. 2 Williams on Ex’rs, 1421, 1535, 1539, 1677; Seighman v. Marshall, 17 Md. 350; Mara v. Quin, 6 Term, 10; Went.’s Ex’r, 312. Crosse v. Smith, 7 East, 258.
There was evidence in the case to go to the jury, that accounts of Daniel Cooke were good, and might have been col lected.
The appellant’s fifth prayer was based upon the ground that if any such accounts as had been before named, had been collected and turned into money, the defendant was chargeable therewith as assets, which was also refused by the court. To this point there was clear proof to go to the jury. There is no principle of law clearer than that debts collected by an administrator are assets with which he is chargeable. 2 Williams’ Ex’rs, 1421, 1435; Seighman v. Marshall, 17 Md. 550; De Valengm v. Duffy, 14 Pet. 282, 290, 291, marg.; Abbott’s Nat. Dig. 491; United States v. Drenner, Hempst. 320, to the effect that all kinds of property left by deceased are assets in hands of administrator.
The court erred, therefore, in refusing this prayer.
The declarations made by Daniel, long after the making of the bill of sale, and contradictory thereof, were properly excluded. Powles v. Dilléy, 9 Gill, 234.
*There is nothing in the Act of 1864, ch. 109, sec. 2, in conflict with the admission by the court of the testimony of Israel Cooke, showing his ownership of the personal property in question; his payment of the liabilities of the coach factory, both before and after Daniel’s death, and the production of the notes paid by him, and therefore the court was correct in admitting this testimony.
After the evidence had been closed on both sides, the defendant offered the prayer, designated as his first prayer, which being granted by the court, covered the whole case, and if correct, renders it unnecessary to pass upon the prayers of the plaintiff..
The first prayer of the appellee was correct. The finding of the bill of sale, covered all the goods, which had been assigned in the bill of sale, and which remained in specie at the death of Daniel, and the other goods, in the factory, at the death of Daniel, if purchased from the proceeds of the sale of any of the goods which had been described in the bill of sale, in substitution thereof, or had been obtained with the money or on the credit of Israel Cooke, clearly belonged to him and were not assets of Daniel Cooke. Israel was not a mortgagee, but a bona fide grantee of all the personal property in the factory.
The court correctly rejected all the plaintiff’s prayers.
The plaintiff’s third and fifth prayers proposed to the jury to find debts or uncollected claims, sperate or desperate, as assets. The assets referred to in the issue meant statutable assets and not debts. See Code of Pub. Gen. Laws, Art. 93, secs. 220, 221, 222. Generally debts are only considered as assets, when collected, ‘although for any sperate debts due the deceased, which may have been lost by negligence of the defendant in failing to collect them, he would be chargeable, as assets. But there was no proof of the loss of any sperate debt. Seighman v. Marshall, 17 Md. 571.
The plaintiff’s first prayer was withdrawn, and his second prayer was rejected, because there was neither an allegation of *fraud nor mistake in the petition, nor any admission in the answer that the paper was different from what it was the intention of the parties to make it, and on the pleadings, the jury were compelled to find for the defendant on the third and fourth issues. Hertle v. McDonald, 2 Md. Ch. 138; Wesley v. Thomas, 6 H. & J. 25; Bank of Westminster v. Whyte, x Md. Ch. 539; Watkins v. Stockett, 6 H. & J. 444.
The plaintiff’s fourth prayer was properly rejected, because there was no evidence to justify the'granting of such a prayer, but on the contrary, it was calculated only to mislead the jury. But this court, in view of the established practice in Maryland, should not reverse the rulings of the court below, upon the fourth exception, which does not set out the whole evidence. The other bills of exception are not incorporated and made part of this, by express terms, which is the rule in Maryland. Gist v. Cockey, 7 H. & J. 134; Buriles v. State, 4 Md. 275; Armstrong v. Thruston, 11 Md. 157.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
