Roberts v. Gibson's Ex'r

6 H. & J. 116

Opinion

The opinion of the court was delivered by

Martin,. J.

.Many points of minor importance word Presented to the court iti the argument of this case, Which tinder different circumstances ought to be duly considered* but as our 'opinion is formed upon the law ¿rising upon the pretended,merits of the case, as disclosed by the evidence, it is riot necessary to take them-into consideration. Although the bill of complaint purports to represent the interest of fouf complainants, three of that number, Catrop, Harrington and Plilmot, expressly disclaim all knowledge of tlié proceedings; that' they were instituted without their consent, and have been prosecuted without their participation; arid indéed it is evident to the most superficial observer, that although their names have been used, rib attention has been paid to their interest. It appears from the evidence, that both Catrop arid Harrington had paid ntofiey on account Of tliéir suretyship for Thomas, yet the aiiditor, in his report, takes ho notice of their claimss He ascertains the amount due to Gibson alone, and seems tó cbrisider him ¿s thé solé complainant in the cause. Thé transaction is represented .by the evidence Very different from the statement iri the bill; indeed thé variancé in detail is SO great as tb make it entirely another case. The bill states a joint cause of action, arising iiptin one bond, signed by ail the complainants! the evidericé is, that there were two bonds, the one by Catrop and Harrington, as securities, the other by Gibson and Wilmot, and given to Secure the faithful performance of the duties of the office for different years. Tlié bill represents the bond to have been executed prior to the reconveyance do Roberts; the testimony proves it to have been nearly two-years afterwards; and to close the climax, the bill declares an entire ignorance, on the part of the complainants, of the views and intention of- Thomas and Roberts, wbqn tlm land was conveyed to Thomas; and the testimony shows, that Gibson knew all, and was perfectly well acquainted with the transaction. The case' presents an anomaly in judicial proceedings, and the court would-not hesitate to dismiss the bill, as containing a case totally different from the testimony in the record. Let us, for 'a moment, inquire, if Gibson stands on firmer ground upon the case a,s, disclosed by the evidence?

In the fall of 1797, Edward Cox and John Thomas were candidates for the office of sheriff for Talbot county % The election took place on the first Monday in October, when Cox had a majority of votes, and was elected sheriff, and was duly commissioned and qualified as such, and; continued to act in the office until the following summer, when he died. Thomas, having the next highest number of votes to Cox, was on the return with him, and after hia. death was commissioned as sheriff for Talbot county. On, the 12th of July 1798, he entered-into an official bond as sheriff, with John Nabb and John Thomas, {pi Wye,) as, his securities. On the 31st day of December 1799, he entered into a second bond with’’ William M. Catrop and Nathan Harrington as securities; and on the 26th day of November 1799, into a third bond, for the due performance of his. office, with Jacob Gibson and Benjamin, Wilmothis securities, Thomas, not being possessed of real and personal property sufficient to make him eligible, as sheriff under the’constitution, Edward Roberts, and his . wife, on the 28th of- September 1797, conveyed to him a tract of land called Farmer's Delight, in order thereby to qualify him for the office, and took from Thomas a bond for the reconveyance of the same.. No money consideration was paid by Thomas, for this land, but it was agreed between him and Roberts, if- Thomas kept the land he. was to pay Roberts one thousand pounds for it. Thomas having failed to be the first on the return at the election, on the 29th day of November 1797, reconveyed the said, land to Roberts, his wife, Henrietta Thomas, being a party grantor in the deed, which was acknowledged before JacobGtibson and James Nabb, justices of the peace, and’ re forded in due time. Gibson, at the, time this acknowledge • ment was taken, explained to Mrs. Thomas the object of) t,he deed, that it was to reconvey certain land that had, been conveyed to Thomas by Roberts to make him eligible as sheriff. ’Thomas, when the land was conveyed to'him, and also when' it, was reconveyed to Roberts, was free from and unincumbered by debt, but died some time in the year 1802, insolvent. ‘ Gibson paid considerable sums, of money as the security of Thomas, on account of his, official misconduct, and filed this bill to have a sale of the land called Farmer's Delight, considering it a fund answerable for Thomas's official debts.

The first question presented for the consideration of-this court, is, the true construction of the forty- second article of the constitution of this state, whether the property qualification required by that article was intended as a. fund to secure the sheriff’s official creditors, in addition to the bond Required of him as sheriff? By that article it is declared, “tljat no person shall be eligible to the office-, of sheriff for a county, but an inhabitant of said county,, above th.e age, of twenty-one years, and having real and personal property in the state above the value of one thousand pounds current money. That bond, with security, be, taken every year as usual, aqd no sheriff shall be qualified-to act, before the same is given.’’, IjVere we left to this, article alone, to infer the intention of the convention in passing it, much difficulty might, arise upon it, although even here, they point out the security they intend to provide for the safety of official creditors, that no act shall fije done as slier iff until that bond be given which is directed for their, protection. But we are not confined to, this article alone, to ascertain their intention. We are to take, the'whole instrument together, and collect, their views front; its general context, and inay call other clauses of the constitution to aid us in the construction of that which" may. be doubtful or uncertain. If this were the only property qualification required by, the constitution, a reference to, other parts for instruction might be hopeless. But that is pot the case. It has required the same kind of qualifications from avariety of. persons, on whom it meant to confer a privilege or bestow an office. It is a rule in. the construction of statutes, and a fortiori, of the constitution, where, the same language is used, in different clause^. of an instrument, upon tlie same or similar subjects, it shall receive the same construction, unless some particular, reason can be assigned to take it out of the general rule, 3?y the second section of the constitution, a property qualification of fifty acres of land, or thirty pounds in money, is required of every person who shall vote for a delegate, to the general assembly, and that the person elected shall have real or personal property above the value of five hundred pounds current money! By the fifteenth article, a senator must have real and personal property above the value of one thousand pounds current money. By the twenty-first article, a member of the council must possess a freehold of lands and tenements above the value of one. thousand pounds. By the twenty-seventh article, a member of congress is required to have real and personal estate, above the value of one thousand pounds; and by the thirtieth article, the governor must have in the state real and personal property above the value of five thousand pounds current money, one thousand pounds whereof at feast to be of freehold estate. For what purpose was the property qualification required in the cases just enumerated? Was it intended as a fund far the security of credi-, tors? The counsel for the appellees have not contended for so wild a proposition. It was to confine the privileges, or offices bestowed, to those who had at least some property at stake in the community, and from which a certain degree of respectability and standing in society might be presumed. Since, then, the same language is used in those articles of the constitution, requiring a property qualification of the governor, members of the council, &c, with that of the forty-second relative to the sheriff', and it is conceded, that in the first cases it was not intended as a fund to secure creditors, it is fair to give all the same construction, unless some reason can be assigned to show the convention did not so intend it. Tp?® counsel for the appellees have attempted to draw a distinction between those clauses, from the peculiar nature of the duties of the sheriff; that as he was an officer into whose hands much of the public money must be placed, it is to be inferred, the property qualification wás required of him for a different purpose than of the other cases mentioned in the constitution. In examining that instrument, nothing is to he found to justify that position- It affords,strong evidence to the co.u trary. Can it be supposed- that the convention should deem a property qualification necessary, as a fund to secure the' creditors' of the sheriff, because public money may be placed in his hands, and yet that no such qualification should be required of the treasurer, who is the great depositary of the public wealth? Yet we find a treasurer is to be appointed by the legislature, and no property, qualification,is required of him.'

If the property qualification was intended as a fund to secure the sheriff’s official creditors, the constitution would, have given them a specific lien upon it; that, like the sheriff’s bond, it shquld be reserved for their benefit, in exclusion to all other creditors; for otherwise it would be useless and nugatory. Yet, it has been admitted, that is not its legal effect; that the official creditors have no lien upon it, and that it is answerable for his private debts, before he performs one official act. He can’ make a bond, fide, transfer of all his property, the day after he is com-,, missioned, and his official creditors have no claim upon it.. If he has one thousand pounds of real and personal property in the state, he is eligible as sheriff, although at the, time’ of his election there may be judgment creditors, against him who have a lien upon his "property, and for whose use it may be sold, to ten times the amount of that sum. How then can it he considered as a fund for the, peculiar benefit pf official creditors, unless it is presumed that the collected wisdom of the state, the framers of the Constitution, when they intended to give them this security, did not know how to carry it into effect?. The creditors of the sheriff, as such, having no lien upon this pro-*, jperty, and that it may be appropriated in many ways, in exclusion of their interest, is strong evidence, in addition, to that afforded by the constitution itself, that it was not intended as a fund for their security, but that the convention had different views, perhaps those before mentioned,, in requiring a property qualification.

It has been contended, that although the property qualification was not intended as a fund to secure the creditors of the sheriff,; yet the deeds between Roberts and Thomas were a fraud upon the law, and Gibson, as, a creditor of Thomas, has a right to have the land sold for the payment, qf his debt. Admit the position to he correct, that this, transaction may be considered a fraud upon the law, i$ does-not necessarily follow that every subsequent creditor ■of Thomas can take advantage of it. If Thomas had refused to reconvey this land to Roberts, the law never would have lent its aid to Roberts, who was particepi 'criminis, to obtain its restoration; it would not enforce the performance of a contract made in violation of its policy; but if a third person; a subsequent creditor, attempts to vacate the deed of re-conveyance on account of the fraud against the public, he must show, either that it was fraudulently against creditors generally tinder the statute of 13 jEliz. eh. 5, or that it was a deception; of misrepresentation, practised upon him, by which he was induced to be5come the creditor of Thomas, and to consider the land b fund for his security.

It would be superfluous to make any remarks on the ope-5 fation of the statute of Elizabeth, for although it is consi>* derecl byr the chancellor as a strong ground to support his decree, it has been disclaimed and abandoned by the counsel for the appellees; they have admitted this case is not embraced by the statute, and therefore it is unnecessary to assign the reason's why the court concur with them in that concession.

Does this record then afford any evidence to show Gibson was in a predicament to complain of the fraud against the law? Was he an innocent creditor, deceived and defrauded by a secret agreement between the parties, of which he had no knowledge, and against which he could not guard himself? YVas any imposition or concealment practised Upon him, by which he was fraudulently induced to become the creditor of Thomas, and to consider this land as his property, and answerable for his debts? So far from it, it appears he was conversant with the whole transaction for more than two years before he became the .security of Thomas; he had a perfect knowledge of the views of the parties from the commencement to the completion of the business. He tells Mrs Thomas the deed to her husband was intended to make him eligible as sheriff; yet he claims relief in his bill, because he did not, know, at the time he entered into the bond with Thomas, there was a secret agreement between the parties.

But is Gibson himself untainted with the fraud against the public, of which he now, so loudly complains? Is he. rectus in curia} and entitled to relief in á court of equity? The degree of moral and legal gfiUt, between Him wild caramelices, and. he who aids, in' thé consummation of á fraud against the públíc, knowing one is intended, is so ■slight; ¿s tó be almost impércéptiblév 5Tis true it does lioi appear that Gilson was a party to the original fraud; biit did he not; with á knowledge of that fraud, lend his aid to the parties to consummate it, arid practice it upon the public? By the constitution Thomas could not have been elected sheriff without possessing property to thé value of one •thousand pounds, arid to make hirii eligible; Roberts conveyed to him this land; this was a fraud upon thé policy of the law. But had it stopped here, the fraud could have, produced no injurious effect, no creditor could have suffered by it; because Thomas could do no act as sheriff, until he gave a bond; with security, for thé faithful performance of iris ófficé; Gibson knéw the fraud had been contemplated, and partly executed-. lie knew it could producé no teffect without a bend and security, arid yet; with'a full knowledge of All the facts; he becomes tlie security in the bond, and thereby enables the party to practice the fraud ripori the public; He was a volunteer with notice, and does not come into a court of equity with cleári hands, when he claims relief against á fraudulent transaction, which could have produced no injury, without his aid to carry it into- effect.

The court think the decree of the chancellor is erroneous and ought to be reversed; .

DECREE REVERSED.