Glenn v. Clark

Construction of Code, Art. 10, secs. 31 and 16 — Gross-bill— Dower. The Act of 1832, ch. 802, (Art. 16, sec. 31, of the Code,) could have-no application to mortgages executed before it was passed. Art. 16, sec. 31, of the Code, confers no power upon the Court to confirm a mortgage executed by a feme covert infant, after she has attained full age and against her consent. It confers the power to confirm and make valid a conveyance by an infant feme covert, which might be shown, during her infancy, to be equitable, expedient or proper-looking to her benefit, and does not apply to any case, after such infant feme covert has attained full age. A cross-bill which seeks no discovery, and makes no defence, which was not equally available by way of answer to the original bill, will be dismissed. The right of a party to amend his answer under Art. 16, sec. 16, of the Code is not ex debito, but depends upon the sound discretion of the Court. In a case where laches cannot be imputed to a party, and the facts constituting the grounds of defence have been discovered for the first time during the progress of the cause, it is. equitable that the amendment be allowed. Where a husband had during the coverture a beneficial legal seisin in fee in certain real estate, and his wife was of full age when she-united in two mortgages of the same, she cannot claim dower against the mortgagees and their assigns, except subject to such mortgages, and is bound to contribute for the payment of the mortgage debts and interest, and she is dowable of the surplus -only. If under the age of twenty-one years at the time of the execution of those mortgages or either of them, the rights of the wife are in no ' manner bound or affected thereby. An infant feme covert cannot relinquish her dower by uniting in a mortgage, but the same is void as to her. But although the wife was not of full age when the first mortgage was executed, yet if the same was given to secure the purchase money, either to the party from whom the title was derived, or to •a third person from whom the purchase money was obtained by the purchaser upon an agreement that such mortgage should be executed, she cannot claim dower as against the mortgagee or his assigns, her right of dower being subordinate to the lien of the mortgage, to the payment of which she is bound to contribute, and she is dowable of the surplus only. .A wife’s right to dower in the equitable estate of her husband, exists only where the husband is possessed of such estate at the time of his death. Where a conveyance is made to a purchaser and at the same time and as part of the same transaction, the purchaser executes a mortgage to secure the purchase money, the seisin thus acquired by the purchaser is of such an instantaneous or transitory nature, that the dower of his widow does not attach, or in other words, her right ■of dower is subordinate to the right of the mortgagee. If, instead of making the mortgage directly to the vendor, it be made to a third person, who furnishes the purchase money, or from whom it is borrowed by the purchaser for the purpose of paying the purchase money, the same principle of equity applies in favor of the mortgagee, provided the whole constituted one and the same transaction; and in such case the rights of the mortgagee are paramount to the right of dower of the wife of the purchaser.

Appeal from the Circuit Court of Baltimore City. The hill of complaint in this case was filed on the 10th ■day of July, 1874, by the appellee, widow of John Clark, who died intestate in July, 1871, claiming dower in a lot of ground situated on the north-west corner of Baltimore and Calvert streets, in the City of Baltimore, and claiming •also one-third part of the rents and profits which have arisen since the death of her husband. The hill alleges that the defendants therein named are in possession of the property, claiming title thereto, and prays that they he compelled to produce all title deeds, evidences and writings relative to said property and estate in their possession, and under which they claim and hold the same; and prays for general relief. The answer admits that the late John Clark was at onetime seized in fee simple of the real estate mentioned in the hill, and avers that as far hack as the 12th day of June, 1884, he ceased to be the owner thereof, and all his estate, title and interest therein, with seisin and possession thereof was vested in and passed to the General Insurance-Company of Maryland, the immediate predecessor in title-of the respondents, who derived their title under the will of the late John Glenn, in the manner and in the proportions mentioned in the answer. The answer then alleges-that certain mortgages of the property were executed hy John Clark, in which his wife, the complainant, united,, thereby relinquishing all right and claim of dower in the-premises, one of them to the Savings Bank of Baltimore, dated January 19th, 1830, for $25,000, and one to Columbus O’Donnell, dated July 19th, 1831, for $25,000, and John Clark afterwards executed two other mortgages of the same property, one of them to Evan Poultney, on the 5th day of January, 1832, for $30,000, and one to'the General Insurance Company of Maryland, on the 16th day of January, 1834, for $15,000, the two last mentioned mortgages being executed without the concurrence of his wife. These mortgages are particularly described in the answer,, which sets forth the manner in which the title of John Glenn, the respondents’ testator, was acquired, as follows: The said Museum property, on or about the 12th dajr of June, 1834, default having been made in the conditions, of said mortgage, was sold at public sale, according to law, under the last mentioned mortgage, and on lore-closure thereof, to the General Insurance Company of Maryland, hy William H. Gatchell, trustee, and was purchased at such trustee’s sale by the mortgagee, the General Insurance Company, for $5,000, subject to the mortgages hereinbefore mentioned, to the Savings Bank of' Baltimore, Columbus O’Donnell and Evan Poultney, amounting to $80,000 in all, with interest. The said sale-was duly ratified by Baltimore County Court on the 26th day of September, 1834; the said General Insurance Company, from and after said sale, became immediately seized and possessed of the said property, although a deed therefor was not executed by the said trustee to the company until the 19th day of May, 1854; and the said mortgagee, Columbus O’Donnell, default having been made in the payment of his mortgage aforesaid, did, on or about the 26th of September, 1834, assign the same to a certain George H. Steuart, as his attorney and trustee, for the foreclosure thereof; and the said Steuart, in virtue of such assignment and authority, having realized from the sale of the other property, in said mortgage described, a portion of said mortgage debt, did, subsequently, on or about the 11th day of June, 1835, unite with said O’Donnell in assigning to a certain George Brown the remainder of said mortgage debt, to wit, $14,940.16, together with the mortgage aforesaid upon said Museum property, securing the same; and the said Brown, on or about the 18th day of February, 1839, did, in his turn, assign and transfer the said mortgage and mortgage debt to the General Insurance Company of Maryland, for and on payment of the sum of $15,000, being the amount of said mortgage debt, with interest, then remaining due and unsatisfied. And the said General Insurance Company, holding the said Museum property as aforesaid, subject to the mortgage for $30,000, executed as aforesaid by said Clark to Evan Poultney, which mortgage was assigned to Poultney, Ellicott & Company, did, on or about the 6th day of February, 1840, come to an account stated with John Glenn and John P. Kennedy, permanent trustees of said Poultney, Ellicott & Company, then insolvent, of and concerning the balance due on said mortgage, and it being ascertained that there was a balance of $1151 due on said mortgage, over and above a debt of $6415.96, due said company by said insolvents, which was allowed in account, the said company did thereupon pay said balance of $1157 to said trustees, in settlement of said mortgage, making $7572.96 in all, paid by said company on said mortgage account at that time. The General Insurance Company being so seized and possessed of the said Museum property, subject likewise to the mortgage of $25,000, and interest, executed by said Clark and wife as aforesaid to the Savings Bank of Baltimore, and having duly paid the interest thereupon from September, 1834, to October 4th, 1855, did, on the last named day, redeem the said mortgage by a substituted mortgage of the said Museum property, on its own behalf, to secure the payment of its own promissory note, at five years from date., for $25,000, with interest, payable semiannually. And the said General Insurance Company went on accordingly paying said interest until the 17th of March, 1864, when said company finally satisfied the entire principal debt of $25,000 to the Savings Bank, and was ■released therefrom by deed of that date. The General Insurance Company, on or about the 2nd day of July, 1855, sold the said Museum property, together with certain other parcels of property, to the respondents, Henrietta Glenn, and John Glenn and the late William W. Glenn, executors of Judge John Glenn, deceased, for the sum of $44,000, subject to the mortgage of $25,000 to the Savings Bank of Baltimore, at that time in full force and effect, and did, on the 2nd day of June, 1866, by deed duly executed and recorded, convey the said Museum and other property, in pursuance and consummation of the sale aforesaid, to the respondents, Henrietta R. and John Glenn, and the deceased, William W. Glenn, then trustees of the estate of John Glenn, deceased, under the decree of the Circuit Court of Baltimore City. And in the said deed it was recited, that the recited mortgage of $25,000 to the Savings Bank of Baltimore, which the General Insurance Company had satisfied as aforesaid, had been so satisfied with money paid therefor out of the funds of the estate of the late John Glenn, by his executors as aforesaid. Erom the time of the purchase of said property by the executors of John Glenn, deceased, in July, 1855, down to the extinguishment, in 1866, of the mortgage last mentioned to the Savings Bank, the money for the payment of the interest on said mortgage was likewise paid out of the estate of the said deceased. The answer denies that the.complain ant has any dower interest whatever in the premises, by reason of the estate of her husband having been converted into an equitable one by the mortgages of January 19th, 1830, and of July 19th, 1831, in which she concurred, and by reason of her husband having thereafter parted with and being divested of his equitable estate in the manner stated in the answer. The respondents further claim that they are entitled to be protected from the claim of dower of the complainant by reason of the encumbrances on the property, created with the concurrence of the complainant, having been paid and satisfied by the parties under whom they claim in the manner stated in the answer. To this answer a general replication was filed. Afterwards one of the original parties defendant having died, leaving infant heirs, an amended bill of complaint was by leave of the Court filed, making new parties; in this amended bill, the complainant states that “ she only claims to be endowed of the surplus remaining after the payment of the mortgage or mortgages, in which it can be shown she joined according to law, in such mode as to bar her dower in the premises,” and offers to “ allow whatever sum may be ascertained to be fairly and equitably due by her as her contribution towards the redemption of such mortgage or mortgages as it may appear she joined in according to law, so as to bar and defeat her dower.” By agreement the answers filed to the original bill were taken and considered as answers to the amended bill. On the 30th November, 1811, the following agreement was filed in the cause: “It is admitted, that the complainant Rebecca Clark intermarried with John Clark, late of Baltimore City, on the 4th day of December, 1828, and that John Clark died intestate on the 18th day of July, 1871, leaving the complainant surviving him, she being now sixty-seven years of age, and that during her coverture, her husband was seized and possessed in fee simple of the property mentioned in the hill, situated" on the North-west corner of Baltimore and Calvert streets, known as the 'Baltimore Museum.’ ” (Signed by the solicitors.) No testimony was taken in the case; hut on the 16th September, 1878, the following agreement was filed: In addition to the several matters mentioned in the agreement of counsel heretofore filed in this case, it is further agreed and admitted as follows: 1. That on the 19th day of January, 1830, John Clark, with the concurrence of his wife, Rebecca Clark, the complainant-in this case, executed and delivered the mortgage for $25,000, to the Savings Bank of Baltimore, as stated in defendants’ answer. 2. That on the 19th July, 1831, he made another mortgage to Columbus O’Donnell for $25,000, the complainant also concurring therein, as stated in the answer of defendants. 3. That on the 5th day of January, 1832, he without the concurrence of the complainant, executed a mortgage to Evan Poultney for $30,000, as stated in defendants’ answer. 4. That on the 16th day of January, 1834, he likewise, without the concurrence of the complainant, executed the mortgage for $15,000 to the G-eneral Insurance Company of Maryland, as stated in defendants’ answer. And it is agreed that the defendants’ Exhibits A, B, C and D, are said mortgages. A being the original of the mortgage for $25,000 to the Savings Bank, and D the original of the mortgage for $15,000 to the General Insurance Co., and B and C being certified copies of the mortgages to Columbus O’Donnell and Evan Poultney, for $25,000 and $30,000, respectively; the recitals in said four mortgages are also admitted to he true. 5. That in pursuance of the power contained in the mortgage from said John Clark to the General Insurance Company, the property therein described, was sold on the 12th day of June, 1834, by William H. Gatchell, trustee, as recited by him in his deed therefor to the General Insurance Company, the purchaser at said sale, for $5000, hearing date May 19th, 1854, whereof defendants’ exhibit E is the original; the recitals of which deed are admitted to he true. 6. That the mortgage debt of $25,000 not having been paid as stipulated, said O’Donnell, on the 26th day of September, 1834, executed the deed mentioned in the defendants’ answer, to George H. Steuart, in trust, said deed being defendants’ exhibit E, the recitals of which it is admitted are true. 7. That on the 11th day of June, 1835, said Columbus O’Donnell and George H. Steuart, trustee, executed the deed to George Brown, mentioned in defendants’ answer; exhibit G being the original of said deed, and its recitals being admitted to he true. 8. That on the 18th day of February, 1839, said George Brown executed the deed to the General Insurance Company, mentioned in defendants’ answer; exhibit H being the original of said deed, and its recitals being admitted to he true. 9. That defendants’ exhibit I, is the original of the release of mortgage from the Savings Bank of Baltimore, to the General Insurance Company, dated November 9th, 1855, the recitals of which, it is admitted, are true; and defendants’ exhibit K, is the original mortgage to said Savings Bank, from said General Insurance Company, dated October 4th, 1855, but acknowledged and delivered on December 21st, 1855, the recitals of which are admitted to be true; and defendants’ exhibit L is the original release of .mortgage from the said Savings Bank to said General Insurance Company; said release bearing date 17th March, 1864, and its recitals in like manner are admitted to be true. 10. That defendants’ exhibit M, is the original deed from the General Insurance Company, to Henrietta R. Glenn and others, bearing date 2nd June, 1866; the recitals of which are admitted to be true. 11. That the allegations in the answer as to the death of the late John Glenn, the execution and contents of his will, and the appointment and qualification of the trustees thereunder, and the names of the beneficiaries thereunder, are true as stated in said answer. 12. That on the — day of 187 — , the trustees of said John Glenn’s estate, sold the premises mentioned in the proceedings, being the Museum property on the northwest corner of Baltimore and Calvert streets, in fee simple, to the Baltimore and Ohio Railroad Company, for $150,000. And it is agreed that the said deeds hereinbefore mentioned, may be read in evidence as if regularly produced and proved under a commission, subject to all legal exceptions. And it is further admitted, that since the sale made by W. H. Gatchell, trustee, on the 12th June, 1834, as shown in the aforegoing agreement, the General Insurance Company and its successors in title, have been in possession of the premises in question, receiving all the rents and profits thereof. And it is further agreed, that if, upon the argument of this cause, it shall be held by the Court that the complainant is entitled to dower in the property, the papers shall be referred to the auditor to state an account, showing the amount of her claim, according to the usual course of the Court in such cases. And it is further agreed, that the case shall be peremptorily set down for hearing upon this agreement, and the agreement heretofore filed, on the 18th day of October, 1818, with leave to the defendants in the meantime to prove any further facts which they may consider material, either side to have the usual right of appeal. In case of appeal, it is agreed, to save expense, that the original papers and copies referred to in this agreement may be sent up with the record, if desired by either party, and without being transcribed therein. (Signed by the Solicitors.) The cause being set down for hearing, the argument thereof in the Circuit Court was begun on the 28th day of October, 1818, when the solicitors for complainant alleged that the complainant was an infant under the age of 21, when she joined in the mortgages of January 19th, 1830, and July 19th, 1831, relying in support of that allegation upon the admission of counsel filed 30th November, 1811, that she was at that time sixty-seven years of age. The defendants’ solicitor being taken by surprise by this averment, and by the construction placed on the last mentioned agreement, asked and obtained the leave of the Court to file a cross-hill, the argument of the cause being suspended for that purpose; and on the 30th day of October, 1818, filed a cross-hill, accompanied with “ Exhibits X. Y. Z.” The cross-bill, after reciting the proceedings in the case, refers to the amended bill of the complainant, which was filed after the answers to the original hill had been filed, wherein the defendants stated and relied upon the two mortgages in which the complainant had concurred as valid and binding instruments relinquishing her dowex-, and that in said amended hill there was no averment or pretence that she was not of full age when the said mortgages were executed; hut thereby impliedly admitted the ■contrary. The cross-bill further refers to and relies upon the agreement filed on the 16th day of September, 18^8, wherein it was admitted that the complainant had concurred in each oí the two mortgages mentioned, as stated in the answer of defendants; and denies that the complainant, after such admissions and agreement, and in the absence of any averment to that effect in her bill and amended bill, can now be heard to impeach the validity of said mortgages on the ground of infancy. The cross-bill avers that “the agreement of November SOth, 18|7|7, as to the age of the complainant, Rebecca, was made by the defendants’ solicitor, altogether upon the statement of the complainant’s solicitor that it was correct, which said statement was no doubt made in good faith, with no intimation to, or idea on the part of the defendants’ solicitor, that the question of the age of said Rebecca was in the case further than as affecting the 'allowance of dower, if any should be allowed, to said Rebecca, and it being wholly immaterial under the rules of the Court to that end, whether she was sixty or sixty-seven or seventy years •of age at the time of said agreement, she having been over fifty-six at the time of her husband’s death in ISYL’^and •charges “that if there had been any intimation of any defence or right of exemption claimed on the ground of the infancy of the said Rebecca, their solicitor would have required proof of the age of said Rebecca, it being a material fact in that view of the case, and the solicitor could not properly, and would not have made any admission of ■such fact, and especially in a case where infants are concerned.” The bill prays that said Rebecca in her answer hereto, may set up and declare on the record whether she does rely upon infancy to invalidate the otherwise binding effect of her joinder in acknowledging the mortgages aforesaid, and releasing her dower, and if she does, that she he required to state in her answer and give legal proof of her age at the time when said mortgages were executed, your orators being wholly ignorant thereof. They further claim and insist that under the pleadings and proof in the principal case, it is too late for the said Rebecca now to set up her infancy, and that she is precluded from disputing the binding effect of her participation in the mortgages aforesaid, if it be found, as alleged, that she released her dower in the premises mortgaged, in manner and form as required by the then existing laws as to the execution or acknowledgment of deeds of femes covert. And they insist that the setting up of said alleged infancy of said Rebecca, at the stage of the original cause above stated, was and is a surprise to your orators entitling them to file this cross-hill, and have the same answered and the matters therein averred and set forth adjudicated, so far as equity may require for a fair determination of the rights in dispute in the principal case, and under this cross-hill. They further claim, if it shall appear that said Rebecca was not in fact of full age when the mortgages were executed, that the same shall he confirmed and declared valid, under the power and authority conferred on the Court by Art. 16, sec. 31, of the Code. It is further alleged “ that the premises in question were purchased by said deceased, John Clark, at a trustee’s sale, on the 22nd day of September 1828, for $27,000, of which he paid $11,000 in cash, giving his notes for the balance. Of the sum so paid, he derived $3800 from the Savings Bank of Baltimore, and in consideration of that amount, and the payment by the Bank of his notes for the credit payments, he conveyed to the Bank, on April 7th 1829, all his interest in the purchase and the property, which was an equitable right to have a conveyance of the estate in fee simple on payment of the purchase money. In this conveyance, of which a certified copy is herewith filed, marked “ Gross-bill, X,” the said Rebecca joined by her acknowledgment according to law, relinquishing all claim of dower. On the same fab April 1829, the said Bank leased the premises to Clark, until the 25th of March 1880, at a certain rent fixed, and with the obligation on his part, to erect certain buildings on the premises, as will appear by the original contract or agreement herewith filed, marked “Gross-bill 7,” as part of this bill, and by the said agreement it is further provided that if the said Clark, or his assigns, on or before the expiration of said lease, should pay to the Bank the full sum of twenty thousand dollars, and all arrears of rent, the said Bank would convey to him all its interest and estate in the premises. And as your orators further charge, it appears and so was, that the said Clark before the expiration of said lease, and before or about the 19th of January 1830, did come to an agreement with the said Savings Bank, to purchase the said property from it with all its rights in and about the same for $25,000, and the said Bank accordingly, by deed bearing date the said 19th of January 1830, (of which a certified copy is herewith filed, marked “ Oross-bill Z”') did join with the trustees, John Glenn and George Winchester, heretofore referred to, in conveying the said premises to said Clark, for the consideration of $25,000, and as part of the same transaction, did take from him a mortgage for the purchase money of same amount, and of the same date, which is the mortgage of 19th January 1830 already in evidence, in which said Rebecca joined, as by law required, releasing her dower, and in respect to.which she now sets up infancy. And your orators charge, and it will appear by reference to the conveyances' thus recited, that the said Clark never had any seisin of the fee in the said property, except - the instantaneous seisin vested in him for the purpose of executing said mortgage for the purchase money, to which seisin the dower right of the said Rebecca did not attach; and that her release of dower was altogether unnecessary and superfluous. It will further appear as aforesaid, that the said deed and mortgage last mentioned, were not only executed on the same day, viz., January 19th 1830, hut recorded both on the same day, viz., January 21st 1830, the deed being recorded at twenty minutes, and the mortgage at twenty-two minutes past 11 A. M. of that day, leaving no doubt of their being part and parcel of the same transaction. It will therefore further appear that nothing could he more equitable, expedient or proper, than that the said Eebecca should release her dower, (if any she bad,) in the said premises, to secure the purchase money thereof, whether she was infant or adult, and that nothing could be more unconscionable than that she should be permitted to assert a right of dower therein, to the prejudice of a mortgagee, or his assignee, for the very purchase money which alone gave to her husband or herself any right in the premises. The hill further alleges that the said John Clark having incurred large expenses in the erection of the very large building upon the premises, known as the “ Baltimore Museum,” and being unable to pay the purchase money for the ground itself, which as appears by the proof in the case he never did, besides requiring large amounts in his business as a lottery and exchange dealer, was compelled to borrow other moneys for the said purposes, and accordingly borrowed a further sum from Columbus O’Donnell of $25,000, on or about the 18th of July 1831, for which he' executed with the concurrence of the said Eebecca, the mortgage of that date already in evidence in the principal case, and it is charged that it was expedient, proper and equitable, that the said mortgage should be made, and that said Eebecca should release her dower to perfect the security thereby given; and it is insisted that her said release should be ratified and confirmed if, indeed, she was not of full age at the making of the same, which is not admitted. The bill further charges that the mortgagees had no notice that said Rebecca was laboring under any disability whatever from infancy or claimed so to be, but relied upon her release of dower as valid and operative to all intents and purposes, and further that she was at the time, whether infant or adult, of sufficient age and intelligence to understand the nature and character of her acts, and performed the same freely, voluntarily, and without coercion or improper inducement of any sort. It is further averred that until the suggestion as aforesaid of the infancy of said Rebecca these orators had not investigated^nor were they aware of the nature of the seisin of said Clark, or the mode in which he acquired his title to the premises in question, except so far as disclosed by the mortgage of January 19th 1830; nor had they been called upon, or deemed it necessary, to go behind the release of dower by that mortgage, assuming it to be valid and operative to all legal intents. They pray that Rebecca Clark may answer; that she may be precluded from setting up her pretended infancy as aforesaid; and in case she should be permitted to set up the same and should prove as she pretends, that she was not of full age when she joined in releasing her dower by and with the mortgages aforesaid, that her said release of dower and the said mortgages in relation thereto may be adjudged to be legal and valid and may be confirmed, as by the Code in the Article and section is aforesaid provided and auth orized, and that her pretended claim of dower may be denied, &c. On the 30th day of October 1818 the appellee filed her answer to the cross-bill, reserving all benefit of exception both of form and substance, to the cross-bill, and especially denying the right of complainants therein to file the same and not waiving her rights by submitting to answer the same, for answer thereto after reciting the proceedings had in the original case, avers substantially as follows: 1 st. That the respondent has not either by her original bill of complaint, or by her amended bill or by the pleadings or agreements of counsel, in any manner waived or relinquished her right to insist upon her defence of infancy, and that the said defence is properly available for her. 2nd. That hy the agreement of November 80th IST^T, with respect to her age, the fact is established that she was an infant,-under the age of twenty-one years at the time when the mortgages of January 19th 1830 and July 19th 1831 were executed, and consequently no further •evidencé of that fact is required. 3rd. That section 31, Art. 16 of the Code has no operation or effect upon the two mortgages concurred in hy the appellee; first, because said section is the re-enactment of the Act of 1832, ch. 302, sec. f, passed after the execution -and delivery of said mortgages, and said Act was in its terms prospective, and not retroactive, and secondly, because said Act and section of the Code was designed to confer power upon the Courts of equity to confirm and make valid during her infancy, the conveyance of an infant feme ■covert’s dower made during her infancy, in order to enable • any conveyance or lease to he made, which during her infancy, might he shown to he equitable, expedient or proper, looking to her benefit, and was not intended to compel a ratification of her conveyance, against her will during her infancy, nor was ‘ft designed to apply to any ■case after such feme covert infant attained full age, as to which said Act was unnecessary, as it was always competent, for the said feme covert to release her dower hy a new deed after reaching her majority. 4th. Disclaiming all knowledge of the facts and circumstances alleged in the cross-hill as to the acquisition by John Clark of the title to the property in question, and requiring proof of the same; it is alleged that in so far as the same are in conflict with the formal admissions in the answer of the appellants to her original hill, and to the •agreed statements of facts on file in this cause, the averinents in respect thereof in their cross-bill are wholly incompetent and inadmissible, not only because they directly contradict deliberate and formal admissions of record, upon matters in respect to which full disclosure and discovery was asked, and professedly given, but also because it is not competent for parties after setting a cause down for final hearing, to seek to alter the case by injecting alleged new facts into the record by means of a cross-bill, which, if available at all, were open to them in answer to the original bill} or by way of evidence in the original cause, ****** and were, or should have been known to the appellants when their answer was filed, and their title was stated in response to the prayer of the original bill; and that the omission to mention them until this late stage of the pleadings, is not in any degree due to the conduct or representations of the appellee or her solicitors. 5th. It is alleged that upon the facts stated in the cross-bill, John Clark had a beneficial seisin in the property, not instantaneous or transitory merely, and if the appellee’s concurrence in the mortgage of January 19,1830, is not binding upon her, but is void and inoperative, as she insists it was, her right of dower was superior and paramount to the lien of the Savings Bank of Baltimore. And it is further alleged that the claim of the Savings. Bank was the claim of a mortgagee lending money to the vendee, wherewith to pay for the property purchased, and in such case, that her right of dower accrued and attached as against said mortgagee, and unless released, by her concurrence in said mortgage, which she avers is not the case, is superior to the said mortgage. ' 6th. It is averred that the appellee was an infant under the age of twenty-one years, when the mortgages of January 19, 1830 and July 19 1831, were executed by her husband with her concurrence, that she received no consideration for uniting therein, that she never alleged or pretended that she was of full age, and never affirmed or ratified by word or deed, and is advised that she is entitled to claim that the said mortgages are not at all binding upon ber, and that she is at liberty to set up her infancy in disaffirmance thereof. If, however, they should be held binding upon her, she tenders herself ready and willing to make her fair and proper contribution towards the redemption thereof according to the practice in such cases — and prays that the cross-bill be dismissed with costs. To this answer a general replication was filed. Eormal exceptions were filed by the appellants, to the sufficiency of the averments of the original and amended bills, because there is no averment therein that the appellee was an infant at the time of her joining or concurring in the mortgages of January 19th 1830, or of July 19th 1831. And further because there is no averment in either •of said bills that her act in joining or concurring in said mortgages, or either of them, was or is void as against her, or voidable by her, or that she pleaded or set up, or relied or intended to rely on such infancy by way of avoidance of the rights or equities set up in the answers, as •arising or growing out of her said joinder or concurrence, or by way of avoiding the effect or operation of such joinder or concurrence, in any way upon the rights of the defendants, or of the complainant herself in these proceedings. And they further except to the competency or admissibility of all evidence in tbe cause, tending to establish or set up the infancy of the complainant. The appellee on her part, excepted to the admissibility ■of all the exhibits filed with the cross-bill, (marked Cross-bill, X, T, Z,) because not proper evidence in the cause. On the 25th day of March 1879, the cause was submitted, with an agreement that a pro forma decree be rendered to the effect that the complainant is entitled to dower in the lands mentioned in the proceedings, and that the cross-bill be dismissed, but reserving all other questions for the future order and direction of the Court. The-present appeal is from the pro forma decree passed in • pursuance of the agreement.