Mattingly v. Grimes

Miller, J.,

delivered the opinion of the Court.

The principles settled in Early vs. Dorsett, Harris & Co., 45 Md., 462 , and by previous decisions on the same subject, cannot be applied in the present case. Here the entire proceeds of sale had been paid into Court under an order to that effect, and deposited in bank to the credit of the cause before the attachment was laid in the hands of the trustee. In that state of case it is clear these funds were not liable to the process of attachment. Nor does the record disclose such a condition of things as would authorize the Court to retain the fund until the validity of the assignment by Suit to Grimes could be litigated by the creditors of the former. What are the facts? James L. Brown was entitled to a distributive share of the proceeds of his father’s real estate sold in this case, and had made several successive assignments of portions thereof.

In January, 1872, the auditor stated an account distributing this share to these several assignees in the order of priority, and auditing to Arthur F. Willmarth the last *106 of them, the balance of $800.56, in part satisfaction of his assignment for $1000, dated the 11th of April, 187\. This account was ratified on the 14th of October, 1872, and on the 24th of that month Willmarth assigned the ■amount thus audited to him to S. T. Suit. Afterwards there was a re-sale of the lands and the proceeds were all collected by the trustee and paid into Court on or before the 9th of April, 1876. On the 22nd of March, 1876, Suit assigned to Grimes his interest in the amount that had been thus audited to Willmarth, and under these assignments, which were duly filed in the case, the appellee by petition asked for an order directing the clerk to draw his check for the payment of this sum to him.

The appellant, a creditor of Suit, recovered a judgment against him on the 19th of April, 1876, and on this judgment issued an attachment on the 20th of July, 1877, which on the same day was laid in the hands of the trustee ; and ( at the same time he filed his petition in the cause averring the pendency of this attachment, charging that the assignment to Grimes was made by Suit with intent to hinder, delay and defraud his creditors, that he was insolvent, and praying the Court to declare the assignment void and to direct the money to he paid to him, and to retain the fund for that purpose.

The attachment, as we have said, was entirely ineffectual, and no lien or right to the fund could be acquired by means of it, and yet the relief sought by the petition seems to he based on the pendency of this proceeding, so as to bring the case within the decision in Early’s Case. But in that case not only were the funds still in the hands of the trustee, hut the attachment was laid prior to the assignment under which the appellees claimed. It is said, however, the petitioner might have amended his petition and brought in the other creditors of Suit to assert their rights and contest the validity of the assignment, and that the Court should have given him time to do this. *107 In other words, it is argued that the Court should have held on to the funds for the purpose, without being asked to do'so, of allowing or instructing the petitioner to amend his petition, and put his claim to relief on a different footing, and bring in other parties to the controversy who in case of success would' be entitled to share in the fund. The authority relied on to support this position, is that of Baltzell vs. Foss, 1 H. & G., 504 , but in our opinion it does not sustain it. The point of that decision as we understand it is to this effect, viz., where real estate situated in Maryland is sold for partition, and one of the heirs to whom the estate had descended is a non-resident and dies before the proceedings for a sale were instituted, his creditors may come in by petition and claim as against his legal representatives parties to the suit, his share of the fund in Court on proof of insufficiency of his personal assets, and the Court should retain the fund and allow a defective petition filed by such creditors to be amended in order to perfect their claim. That seems to us a very different case from this. Here it is proposed to contest the validity of an assignment between parties not parties to the proceeding under which the land was sold, and in nowise affecting the creditors of such parties. Such a controversy, supposing the appellant to be in a position to initiate it, must be conducted in behalf of all the creditors of Suit, and not only Grimes, the assignee, but Suit himself, the assignor, is an indispensable party to it. We know of no rule of chancery practice, nor any precedent, that would allow the engrafting of such a proceeding, by way of petition upon an item of an auditor’s account in a case like the present. We are therefore clearly of opinion, the Court was right in dismissing the petition of the appellant and directing the money to be paid to the appellee.

(Decided 21st February, 1878.)

Order affirmed, and cause remanded.