Bassett v. Miller

8 Md. 548

• Court: Court of Appeals of Maryland
• Decided: December 15, 1855
• Status: Published

Opinion

Mason, J.,

delivered the opinion of this court.

So far from the case of Owings vs. Owings, 1 Har. & Gill, 484, being an authority against the validity of the contract declared upon in this case, the court expressly refrain from deciding the point. The question upon which that action was ■defeated was not that the contract was not valid and binding, ■but that the plaintiff, who brought the suit, was not the proper party to maintain the action. It is true the court say in their opinion, “ it is not consistent with the policy of the law to encourage such transfers, as, in bad hands, the practice might lead to gross violations of trusts and the most pernicious consequences.” While we are willing to concede the propriety of this suggestion, we do not admit that this dictum is sufficient to control the court in the case now before them, or to constitute the rule of law to govern us in subsequent cases. The reason assigned why such transfers are against the policy of the law, namely, because, “in bad hands, the practice might lead to gross violations of trusts,” &c., has not the force which it is supposed to have, for the reason, that all such contracts or transfers with parties not preferred by law must be subject to the sanction and confirmation of the orphans court; and it is not to be supposed that that court would assent to the appointment of an unworthy representative in order merely to carry out such an arrangement.

While such contracts should not be encouraged, it is far-better, in view of public policy and sound morality, that they should be sustained, than that conduct should be tolerated, by lliis court, by which solemn engagements may be repudiated, and fraud and deception perpetrated with impunity.

Judgment reversed and procedendo awarded