Berry v. Matthews

13 Md. 537, 1859 Md. LEXIS 43

• Court: Court of Appeals of Maryland
• Decided: June 3, 1859
• Status: Published

Opinion

Le Grand, C. J.,

delivered the opinion of this court.

This is the case of an attachment levied on land, credits and com. The garnishees admitted, in one case, the indebtedness, and in another, the possession, of a certain quantity of com, the property of the defendants. There is no question, whatever, as to the correctness of the claim of the plaintiff, the present'appellant. By an agreement filed in the cause it appears, that separate cases were docketed against the several garnishees, which have b§en stetted to abide the decision in this one. Independently of this agreement, the cases would necessarily be separate, and distinct judgments pronounced in each. The rule, in this regard, is stated with correctness by Mr. Evans, at pages 98, 99 of his work on Practice. He says: where “the attachment has been laid in the hands of several garnishees, severally, that is, unconnectediy, or of some jointly and of other separately from them, and either jointly or severally, among themselves, the proceedings are somewhat different. Each several garnishee, and each set of joint garnishees, must then appear severally, even although they may all employ the same attorney. The clerk then dockets as many suits as there are separate appearances, and each of these is regarded as a separate cause, and goes on without any reference to the other, than is necessary to secure the defendant against the risk of the plaintiff’s getting more than one satisfaction for his debt.” This being so, the present appeal is confined to the validity of the attachment levied on the land, and this depends entirely upon the solution of the question, whether the deed of the 5th of October 1857, offered in evidence, and the other testimony objected to, but admitted by the court, be sufficient to show .title in the claimants so as to defeat the plaintiff’s right to condemnation. It has riot been pretended that the deed, in terms, covered the particular land levied upon, but, it was insisted, that the description in the deed was of a character to create such an ambiguity as would authorize the introduction of other evidence to explain its true application. We are clearly of opinion, that the deed does not present any ambiguity, either patent or latent. It gives the devolution of the title and describes the property with clearness, and neither the one nor the other corresponds with the land levied upon, which is conceded to have been that of the defendants. The evidence adduced to show the identity of the land conveyed, with that levied upon, in no-sufficient way connects itself with the description in the deed, to overrule and set it aside. Although, it was said, that if the deed of the 5th of October 1857, did not cover the land in question, and for that reason was inadmissible, yet that If any part of the evidence was admissible, it would have been error in the court to have rejected the whole, and that as the assignment of the personalty of the assignors was admissible to change the title to it, the court did right, in overruling the objection. ít is undoubtedly true, that if testimony be' offered generally, and it be objected to in entirety, and any pari of it be admissible, it is error to reject the whole. The cases of Budd vs. Brooke, 3 Gill, 220, Pegg, et al., vs. Warford, 7 Md. Rep., 582, and Carroll’s Lessee vs. The Granite Manufacturing Co., 11 Md. Rep., 403, are sufficient authority for this doctrine. But the question here is, was any part of the evidence admissible? Clearly not,. The only question involved in this case (the claim of the plaintiff being admitted) was the title to the land, and if the deed, offered in evidence, did not embrace it, the assignment of the personalty could not make that relative and competent which was irrelevant and incompetent evidence, because the assignment of the personalty was also irrelevant and incompetent to establish any thing in issue. But, were it possible to try all the cases under the issues joined in this one, there would still be some doubt as to the admissibility of the evidence, and this doubt grows out of the true meaning of the admission in reference to the deed of assignment from F. & Alexander H. Dodge to Matthews and Chapman, dated the 5th day of October 1857. Inasmuch as this case must be sent back to have a judgment of condemnation entered against the land, and inasmuch as-this court cannot enter judgments in the other cases,- it is unnecessary we should employ any effort in the interpretation of the admission, and, therefore, content ourselves with merely stating a few principles which must govern the matter in the' circuit court.

If, by the admission of the “due execution” of the deed-last referred to, it was designed to give to the office copy the' same effect as if the original had been produced and proved,• then the admission should be so amended as to express that intention. Without that there is no sufficient, evidence of the' existence of the assignment, because the only evidence of any such instrument .having been executed, is an office copy of it, which - is no evidence whatever, first, because if there was a sufficient delivery, then there was- no need to record the assignment, and, therefore, an office copy is not evidence. See Norris, Brown & Bruners Digest, title Evidence, page 440, letter C, pl. 11, 12, 13; and second, because the instrument was not acknowledged as required by the Act of 1856, ch. 154. Supposing the symbolical delivery to be sufficient in law, yet the claimants should have proved the execution of the assignment by testimony other than an office copy.-

(Decided June 3rd, 1859.)

The objection to this deed of assignment, chiefly relied upon by the appellees, in this court, was, that it is fraudulent and void on its face, under the statute of 13th Elizabeth..- That seems, from the record, to have been the only objection taken below. This court has fully considered that question, and a majority of it are of opinion that such objection cannot be sustained.

From what we have said, it follows, that the court erred in permitting the testimony to go to the jury, and that, in this case, the plaintiff was entitled to a judgment of condemnation of the land. It may be further remarked, that whatever doubt there might be, as to where the title in the corn would be,, if not severed from the realty, in the suit in which it has been, attached, no such question can arise, inasmuch as the garnishee, in his answer to the interrogatories, admits that he holds it as the property of the defendants.

Judgment reversed and procedendo awarded.-