First National Bank v. Eccleston

48 Md. 145, 1878 Md. LEXIS 90

Opinions

Miller, J.,

delivered the opinion of the Court.

The record in this case shows that on the 2nd of June, 1868, Charles A. Eccleston and Martha A. Eccleston his wife, executed a deed of trust of certain real estate in Montgomery County, to secure a debt of $15,000 due hy the husband to the First National Bank of Washington. The land so conveyed or mortgaged belonged to the wife, who had acquired the same hy conveyances from her father and other parties. In 1871, a hill was filed in the Circuit Court for Montgomery County, hy the bank and the trustee in the deed, against Eccleston and wife who were then non-residents of this State, living in the city of Brooklyn, State of New York, for a, sale of the property to pay this debt. The usual order of publication was duly published, and the Court on the 11th of October, 1872, passed a decree taking the bill pro confesso against the defendants and ordering the land to be sold unless they should, on or before the 12th of November, 1873, pay the money or bring it into Court to be paid to the complainants.

On the 26th of December, 1874, Mrs. Eccleston filed her petition praying that the enrolment of the decree might be vacated and she be allowed to answer the bill. The grounds important to be noticed (though others are alleged) upon which the petition asks this relief are, 1st, that the deed is void as against her, because she was forced to sign and acknowledge it by the threats, menaces and ill-treatment of her husband, which in her then weak and enfeebled condition of health, she was unable to resist. 2nd, that she had no knowledge of the institution or pendency of this suit, or of the proceedings therein; that its existence was studiously concealed from her by the fraudulent devices of her husband, and she remained in total ignorance thereof until about the middle of April, 1874. The receiver of the bank who on petition had been admitted a party complainant in the cause, and the trustee in the deed being required to answer this petition, did so, denying all its material allegations, and insisting that even if they were true, they do not under the circumstances of this case, authorize the Court to discharge the enrolment and set aside the decree. On this petition and answer, testimony was taken on both sides, and the Court, on the 7th of December, 1876, passed an order vacating the decree and allowing the petitioner to answer the bill upon tbe condition, among others, that at any future hearing of the cause, she shall rely' only on the defence that her execution and acknowledgment of the deed were procured by fraud, duress, or other improper influences, and- that she was prevented from receiving notice of the order of publication by tbe same means. She then filed her answer to the"bill reiterating tbe averments of her petition, with respect to the circumstances under which she executed and acknowledged the deed of trust. After replication to this answer and further testi mony, the Court, on final hearing, passed a decree dismissing the bill, and from this as well as from the order vacating the original decree, the complainants have appealed.

Where a decree has been passed by default without a hearing upon the merits, a Court of equity has power in the exercise of a sound discretion, to vacate the enrolment in order to let in a meritoi’ious defence, and this may be done upon petition without a bill of review or an original bill for fraud. This doctrine was fully considered and settled by the case of Herbert vs. Rowles, 30 Md., 271, and was not controverted by the appellants’ counsel in argument, but they have argued and contended,

1st. That though the decree which was opened in this case appears on its face to he a decree by default, yet it is shown by the proof to have been entered by consent. But in our judgment the proof does not sustain this position to the extent of making it a decree by consent as against Mrs. Eccleston. All that the testimoney on this point shows is that Mr. Henderson of the law firm of Peter & Henderson, about the date of the decree received a letter from Eccleston, the husband, calling his attention to this case, and saying he intended to make no defence, but wanted a stay of execution for twelve months; that immediately upon receipt of this letter he went to the office of Messrs. Anderson & Bouic, the solicitors of the complainants, informed them of the contents of the letter, and they agreed to grant the requested stay, and effected it by changing the date in the decree at which the money was to be brought in from the 12th of November, 1872, to the 12th of November, 1873, and the deci’ee so changed as to date, was then filed, hut Mr. Henderson positively swears he was never authorized by Mrs. Eccleston, either in person or by letter to appear for her in the case. Clearly this intervention of counsel at the instance of the husband cannot bind the wife, nor make this a decree by consent as against her.

2nd. But it is further argued that the petition was too late, and should have heen filed within two months after the petitioner had knowledge of the decree. The law provides that when a party makes oath that a decree was obtained by fraud or mistake, he may appeal after nine months, but requires in such cases that “the appeal shall be entered within two months from the time of the discovery of the fraud or mistake, and not afterwards;” (Rule 9, respecting Appeals, 29 Md., 4,) and it is insisted this limitation must hy analogy be applied to the filing of this petition. It is true that in some cases Courts of equity have adopted by analogy statutory limitations of time, with respect to the assertion of certain rights, and particularly the right of appeal after discovery of fraud or mistake, where the statute is silent as to the time within which appeals in such cases may be taken, (Oliver vs. Palmer & Hamilton, 11 G. & J. 137,) but no case has decided that it is absolutely imperative upon the Courts to adopt such limitations in every case, and with respect to every right. On the contrary, so far as the decisions have gone, it is plain no such inflexible rule exists with reference to a case like the present. In Herbert vs. Rowles, the decree was passed in July, 1865, and the petition to vacate its enrolment was not filed until April, 1866, and the pendency of the proceeding was known to the petitioner’s counsel who was allowed to appear for him before the decree was passed, and yet it is plain from the opinion in that case, that this lapse of time would not have been considered a bar to the relief if the petition in connection with other facts disclosed by the record, had afforded sufficient ground for the exercise of the discretion invoked. We there adopted what was said by Lord Hardwicke in Kemp vs. Squire, 1 Ves. Sen., 205, that the power of the Court to open the enrolment is a discretionary power to be exercised or not according to the circumstances of the case, as being applicable, as well to the time when the petition is to be filed as in other respects. Here the petitioner did not know of the decree until the middle of April, 1874, and she filed her petition on the 26th of December, of the same year. When she was informed of the decree, she was a married woman. Her husband sailed for England, of which country he was a native, on the 24th of March, 1874, and died there on the 28th of April, following, but she did not receive satisfactory information of his death until the latter part of May. She was then a widow with infant children, and if she did not at once disclose her grievances, consult counsel and become advised of her rights, the delay, if not unreasonable, ought not, of itself, to prevent her from obtaining the relief to which she would otherwise be entitled. In the interval after knowledge and before acting, no change of interest in the mortgaged property had taken place. Ho third party had acquired any right to it, but it stood precisely as it did in the preceding April, and, in our opinion the circumstances of the case, are not such as to justify a Court of equity in holding this lapse of time an absolute bar to the relief prayed by the petition.

3rd. It is next contended that Mrs. Eccleston is not a competent witness to sustain the allegations of her petition, and this objection is founded on the clause of the Evidence Act, that “ when an original party to a contract or cause of action is dead, either party may be called as a witness by his opponent, but shall not be admitted to testify on his own offer.” It is insisted that after the husband’s death, the wife ought no.t to be allowed to testify that her signature to the deed was procured by his fraud and violence, and that, as the question is presented by her petition, she is within the spirit if not the letter of the above provision. This clause creates an exception to the general provisions of the Act which remove the incompetency of witnesses on the ground of interest, and allow parties to suits to testify, and it has frequently been con sidered by this Court, the last instance being in the case of Graves, et al. vs Spedden, et al., 46 Md., 527. In that case, in the course- of proceedings for the partition and settlement of an estate, a question arose between the heirs at law, whether a deed of part of the land made by the deceased father to his sons, was an advancement or an absolute gift, and that depended upon the intention of the father when he executed the deed. One of the sons and one of the grantees in the deed was offered as a witness, to prove in his own behalf, and as against his co-heirs, declarations of the father made to him at or about the time the deed was executed, showing that the grantor intended it as an absolute gift, and this clause of the statute was relied on as excluding him ; hut we héld, he was a competent witness to prove such declarations. That is a much stronger case against the competency of the witness than the present. Here the parties to the deed, are the husband and wife on the one side, and the trustee of the bank on the other; and,both husband and wife are made defendants to the bill filed by the bank, and the trustee to enforce the trust. The husband dies, and the wife now testifies, as against the living complainants, the other parties to the deed and to the suit, to acts committed by the husband in his life-time, which make the deed void as to her. But these acts thus testified to, constituted no ground or cause of any civil action, (except for a divorce,) by the wife against the husband when living, and certainly furnish none against his personal- representatives. It is conceded that if he were living, the wife could set up this defence to the deed, and give this testimony. In what worse position are the complainants placed by his death ? Simply in that of having lost the testimony of a witness who knew the facts, and might have been called by them to contradict, if he could, her testimony. But however much this circumstance may weigh against her credibility, it in no wise affects her competency as a witness.

This brings us to the main inquiry in the case. Was the execution of this deed by Mrs. Eccleston procured in the mode and by the means stated in her petition? In determining this question, which depends entirely upon the testimony in the record, we have considered, and felt the full force of the very zealous and earnest arguments of the appellants’ counsel, and have given due weight to every point they have pressed upon our attention. As weighing against the credibility of Mrs. Eccleston, the chief witness, we have considered her silence during the life of her husband, the delay in filing her petition after his death and after she had knowledge of the decree, the discrepancies wherever 'they exist between her testimony and that of other witnesses, and above all, the fact that she is testifying in her own interest, to save not only her property, hut herself and infant children from want and poverty, and yet we have not been able to bring our minds to the conclusion that she has committed perjury. In its main and substantial features, her testimony is corroborated by that of her sister, Mrs. Jones, who was then unmarried and living in the house with her, and we must either reject the statements of both these witnesses as altogether false and wilfully fabricated or accept them as true. Their testimony is. so positive, direct and circumstantial as to leave us no other alternative. It cannot upon any theory of mistake, or confusion of dates, or application of facts that may have occurred at some other time to the occasion in question, he reconciled with truthfulness and integrity. Accepting then, as in our judgment we must, this testimony as worthy of credit, it presents circumstances stronger than those in Central Bank vs. Copeland and Wife, 18 Md., 305, or in Whitridge vs. Barry, 42 Md., 140, or in any other case of like character contained in the judicial records of this State. We do not propose to state in detail the language, acts and conduct of the husband, manifesting and proving the alleged duress. It is sufficient to say in brief, that it is shown by the proof that in the latter part of May, 1868, after this deed had been prepared, the husband took it to his wife and demanded she should sign it without knowing its contents, telling her it was but a matter of form ; that she was then near her confinement, in that condition of health and anxiety which required kindness and sympathy; that upon her expressing an unwillingness to sign without some knowledge of what the paper was, he enforced his demand from time to time with curses and oaths, and threats of personal violence, and even of her life, until by these means and the general violence and harshness of his conduct and temper towards her and in her presence, he overpowered her will and resistance; and that he then took her to the City of Washington, where she signed and acknowledged the deed before a notary public without knowing what it contained. The appellants’ counsel have not only conceded that this makes out a case of duress, but have argued that in view of what is proved to have been the antecedent and subsequent conduct of the husband in the kind treatment of his wife, this outburst of passion was so sudden, and violent and cruel as to make the story altogether improbable, and that this of itself, is sufficient to discredit the witnesses who have told it. But it must be .remembered that at this time the husband was in the last stage of financial embarrassment, and that the bank required this deed as a condition of further indulgence for what he already owed, and of further assistance by a further loan. He wanted money immediately to uphold his credit and avert financial ruin, and with this strong pressure upon him, his resort to these extreme measures to obtain his wife’s signature to the deed which was to relieve and save him, when he found her unwilling to yield to his wishes, does not seem to us so improbable as counsel have supposed. Moreover, the fact that he had been kind and affectionate to her before, and that after she yielded to his demands his habitual kindness and affection for her returned, furnishes, we think, a natural and reasonable explanation of her subsequent silence on the subject, and of the circumstance that she did not disclose his conduct to her father or brothers, or other relatives, when they visited her in Brooklyn, or when she visited them in the summer of 1871. Besides this, she herself gives a further and quite natural explanation of this silence, in that part of her testimony in which she says that in October following the execution of the deed, her husband told her the debt was settled and she would hear nothing further from it. This was a statement well calculated to quiet her apprehensions, and to prevent inquiry and complaint. Nor do we attach much importance to the fact that none of the household servants, or tenants or workmen on the farm have been examined by the petitioner, or that those ■of them who have been called on the other side, have sworn they had no knowledge of such conduct of the husband. It is obvious that if this treatment of his wife had been displayed in their presence, it would have endangered, if not prevented the accomplishment of his purpose, while the wife on her part, had the strong motive of womanly pride, as well as wifely affection and delicacy, to conceal such conduct of her husband from such parties. In the testimony of Dr. Taylor as to whether he saw Mrs. Eccleston on the occasion of which she speaks, we find no such clear and positive contradiction of her testimony as would justify us in saying she has sworn falsely as to this incident. Substantially the same thing may' be said of the testimony of Mrs. Reynolds. It is by no means certain that in the conversation she testifies she had with Mrs. Eccleston, the latter referred to this particular deed and the circumstances attending her acknowledgment of it. The record shows that she had united with her husband in the execution and acknowledgment of many other deeds. There is more difficulty in dealing with the testimony of Charles C. Callan, the son of the deceased notary before whom the deed was executed and acknowledged. Mrs. Eccleston swears she signed the deed in the carriage in front of the notary’s office, while this witness swears she went into the office and signed it there It is of course of no consequence whether this act was done in the one place or the other. The contradiction is only important as affecting in the mind of the tribunal to pass upon it, the credibility of Mrs. Eccleston, and on this point it presents the case of witness against witness. Interest in the result of the suit weighs against one, while the absence of such interest is in favor of the other. But tending to her corroboration is the undoubted condition of her health, rendering it probable she would not have left the carriage unless there was urgent necessity of so doing, and as pointing at least in the same direction, is the appearance of the instrument itself in the alterations made in the form of the acknowledgment. This had been prepared for a magistrate of Montgomery County, and had tobe changed to suit it for a Notary Public in the City of Washington. This change was so hastily or carelessly made as to leave it stating what was in fact not true, viz., that it was taken before a Notary Public in and for Montgomery County, State of Maryland. It is difficult to suppose that if the parties were in his office, where the act could be deliberately done, an experienced Notary would have made this mistake and left the certificate of acknowledgment in this shape. This circumstance indicates something unusual in the transaction, and is entirely consistent with the supposition, that the husband having compelled the assent of his wife to sign the deed, went into the office and represented to the Notary whom he knew, (and before whom, he and his wife had executed at least one other similar instrument,) the delicate condition of his wife’s health, and the consequent propriety of her not leaving the carriage, and the necessity of haste in the transaction, signed the deed there himself, and that it was then immediately taken to the wife in the carriage for her signature, after the alterations in the form of the acknowledgment had been hastily made by the Notary. In view of these considerations, and even assuming the testimony of M. P. Callan, the other witness to the deed, refers to this particular instrument (though on cross-examination he says he cannot so swear,) and not to another deed by the same parties, which he also witnessed, we cannot declare that this testimony is sufficient to discredit Mrs. Eccleston as to the scenes which took place at the house, corroborated, as she unquestionably is in this respect, by the testimony of her sister.

(Decided 8th March, 1878.)

Having given to the case a very careful consideration, and having reached these conclusions both on the questions of law and of fact, the result is that the order and decree appealed from must be affirmed.

Order and decree affirmed.