Thomas v. Farmers' Bank

32 Md. 57, 1870 Md. LEXIS 8

• Court: Court of Appeals of Maryland
• Decided: January 26, 1870
• Status: Published

Opinions

Alvey, J.,

delivered the opinion of the Court.

The real estate descended from Mrs. Eliza Thomas, the widow and sole devisee of the late Governor James Thomas, to her four children, was, by agreement and through the agency of mutual friends, on the 29th of April, 1854, partitioned and allotted to and among three of them only, the appellant being the fourth, and who, in consideration of a certain sum in gross, to be paid to her by each of the other heirs, agreed to surrender to them all her interest in the several parts of the real estate allotted to them respectively.

At the time of making the division and allotment, all the heirs, including the appellant, entered into mutual covenants of ratification, whereby they declared themselves to be satisfied and content with the division and allotment made, and thereby covenanted and agreed, each with the other, to “ stand to, abide by, and carry into full effect the said award, division and allotment, and to make and give, each to the other, and all to each, any and all assurances, conveyances, deeds, or other instruments, which, may at any time hereafter, become necessary to the fulfilment of said award, division and allotment, according to the true intent and meaning thereof; Elizabeth Thomas (the appellant) to have secured to her by each of the other parties hereto, in consideration of the surrender, by her hereby made, of all her interest in said estate to them, in manner as specified in the aforesaid division, the sum of six thousand two hundred and forty-four dollars.”

At the same time, James R. Thomas, one of the heirs taking the real estate, executed to his sister, the appellant, his penal bond, without surety, conditioned for the payment of the sum of $6,244, with interest, “in consideration of the aforesaid surrender of her fourth part of the property aforesaid.” This money, thus secured by the bond, has not been paid, and the appellant has never made a deed of conveyance to her brother for the fourth interest in the part of the real estate alloted to him, though the other heirs have .conveyed to' him, in pursuance of the partition. And since these transactions, James R. Tilomas has become insolvent, being indebted to various persons besides the appellant — to some by judgment, and to one by mortgage of the real estate assigned him by partition— and all of such real estate, so assigned and allotted to him, having been sold by insolvent trustees, the proceeds of sale are in Court for distribution among creditors, among whom is the appellant, who exhibits her claim, evidenced by the covenant and bond before referred to, and insists that it constitutes a lien, not only on the one-fourth interest surrendered, to her brother, but on the whole of that part of the real estate allotted to him by the award of partition; and that such lien has priority and preference of the mortgage and judgment creditors of the insolvent.

The lien, to the extent claimed, was disallowed by the Court below, but was recognized as, and restricted to, a vendor’s lien binding on the one-fourth part of the real estate allotted to James R. Thomas in the partition of the land descended; and as the proceeds of the entire estate thus acquired by him are greatly insufficient to pay the appellant and the other lien creditors to whom she has been deferred, she has appealed to this Court for a review of that decision.

A lien on the entire third part of the estate descended, and which was allotted to James R. Thomas, is attempted to be maintained on the theory that the appellant’s claim is for owelty of partition, and therefore a charge. But it is manifest that neither at the common law, nor under the statute providing for the partition of estates among parceners, can this claim bo regarded as for owelty of partition, so as to constitute a charge to the extent claimed.

In making voluntary partition among parceners at the common law, if messuages are the one of less value than the other, they may make partition between them, that one shall have the one messuage and the other the other, and the one who gets the messuage of the greater value, shall grant a rent out of it to the other and her heirs for owelty of partition. Littleton, sec. 251. And such rent is a rent charge, and may be distrained for of common right, into whosesoever hands the messuage out of which such rent is granted shall come. Littleton, secs. 252, 253. And such rent partakes of the nature of the land, and has its descendible quality, for as said by Loud Coke, in his commentary on the sections of Littleton, just referred to, [Co. Litt., 169, b.,) “the rent is in nature of co-parcenary, and after the death of the one grantee the moiety of the rent shall descend to her issue in course of co-parcenary, and not survive to the other, for that the rent doth come in recompense of the land, and therefore shall ensue the nature thereof.” Such being the nature and quality of the charge of owelty of partition at the common law, what is there in this case to resemble it,' or bear the remotest analogy to it? Here the appellant, though one of the parceners, takes no part of the estate descended, but surrenders all her interest therein to her co-parceners for a stipulated price to be paid her, not as a rent issuing out of the estate, but as a sum in gross to be secured by bond or otherwise. She has no remedy by distress, such as is given by the common law to a parcener holding a charge for owelty of partition, but she is required to resort to the ordinary remedies for the collection of her debt. The debt agreed to be paid in consideration of the surrender of her interest in land, would not devolve on her heirs-at-law, but would go to her personal representatives, and form part of her personal estate. And if such be the character of the claim, was the consideration of it anything more than an ordinary sale of the appellant’s interest in the estate descended ?

In Hulbert vs. Hart, 1 Vern., 133, there had been a voluntary partition among co-parceners, and the lands of one being of greater value than those allotted to another, until an estate for life fell in, it was agreed, that’ the co-parcener taking the least share, should have a certain annual rent, out of the land allotted to the other, to make his share equal; and a bond was given for securing the payment of the annual sum agreed on, which, by the terms of the bond, was made payable to the co-parcener, his executors or administrators; and after the death of the party to whom the bond was given, the question was, whether the heir or the executor was entitled to the benefit of it; and it was decreed in favor of the executor. There it was admitted that, if the party taking the least part had taken a sum in gross in consideration of the inequality of partition, that would have been like selling so much of his part of the estate; and the Lord Keeper decreed upou the ground that there was no grant of rent, but a bare agreement.

If, in that case, as was conceded, the taking a sum in gross, in consideration of the inequality of partition, Avould have been a sale of so much of the estate descended as was required to make equality, it is clear that, in this case, the surrender of the entire interest of the appellant in the estate descended to her and others, for a stipulated price in gross, constitutes a sale, and nothing more.

Nor do we tliink that the case can be at all controlled by the provision in the statute to direct descents, (Act 1820, ch. 191, sec. 20; 1 Code, Art. 47, sec. 51,) whereby, upon an election to take at a valuation being made, and bonds given to other parties entitled, for their proportions of such valuation, it is declared that “ such bonds shall be and remain a lien on the lands, for the purchase of which they were given, until the said bonds shall be wholly paid.” For, whether the lien thus given could be more extensive, and operate upon other interests in the land than that purchased of the party to whom the bond is given, is immaterial, as such lien is of statutory creation, and has reference exclusively to the legal proceedings in which the election is made, the right of which exists and can be exercised without the least respect to the consent of others interested in the estate.

Looking, then, at the nature and character of the contract between the appellant and her brother, in reference to the partition and allotment of the estate descended, the most favorable position in which we can place the appellant is that of vendor, with a lien on the interest surrendered for the unpaid purchase money. To this extent, and no further, do we think the lien should operate. To be a vendor’s lien, it could not have a more extensive operation than upon the interest sold. The reason and nature of the lien thus restricted it..

But, it is said that, as parceners have unities of interest, title and possession, the interest of the appellant extended to all and every part of the land descended, and, consequently, to all of the land allotted to James R. Thomas under the award of partition, and that, therefore, her lien, even as a vendor’s lien, was coextensive with and bound all the land held by her brother.

To the full extent of this proposition we do not accede. For, however correct it may be in one sense, it is manifestly not so in all.

It is true that co-parceners, though several persons, constitute but one heir in contemplation of law; and, as said by Lord Coke, (Co. Litt., 164, a,) they have “one entire freehold in the land, as long as it remains undivided, in respect of any stranger’s prcecipe. But, between themselves, to many purposes, they, have, in judgment of law, several freeholds; for, the. one of. them may enfeoffe another of them of her part, and make liverie.” And so in this case, as to the partition and surrender of the appellant’s interest in the estate to her co-parceners, she had in law a several freehold and a distinct interest, and it was with reference to such distinct interest that- the price was agreed to be paid.

This case is not unlike that of Spalding vs. Brent, 3 Md. Ch. Dec., 411. There, arbitrators were selected by the children and heirs-at-law of George H. Spalding to ascertain their respective proportions of the real and personal estate of their father,, then remaining in the hands of George R. Spalding, one of the children and co-heirs. The arbitrators made their award, valuing the estate at a certain amount, and apportioned it among those entitled. It \yas further awarded that, upon the payment, by George R. Spalding, of the shares of his co-heirs, thus ascertained, they should each convey to him their title to the real estate of their father, and release their interest in.the personal estate. George R. Spalding executed to his brother, Basil D. Spalding, his single bill for the portion awarded to the latter; and, after the death of George R. Spalding, on his real and personal estate being sold for the purpose of paying his debts, the claim of Basil D. Spalding was brought into controversy, and, upon its being established as a subsisting claim, it was determined by the Chancellor that he was, to the extent of his share of the real estate, an unpaid vendor, and had a right, in equity, to pursue the estate or its proceeds as against the vendee, or volunteers claiming under him, or his judgment and general creditors; but as to the residue of the claim remaining unpaid after applying the proceeds of such share, it would have to share the fate of the general creditors. It was not pretended, in that case, that the lien operated upon any other portion of the estate than the particular share of Basil D. Spalding, although the estate descended in co-parcenary, and the legal estate of Basil therein had never been conveyed to his brother.

That decision was made by an able and experienced Chancellor, and it appears to have been acquiesced in by all concerned, as there was no appeal taken; and we can perceive no ground upon which it could have been successfully assailed.

But it is contended that the appellant is entitled to priority of payment of her whole claim, upon the ground that she has a right to specific performance of the contract with her brother for the better security of her debt.

To say nothing of the lapse of time, we can perceive nothing in this case to afford the foundation for such relief. That clause in the articles of ratification in regard to all further assurances, conveyances, deeds, or other instruments that might be necessary to the fulfilment of the award, division and allotment of the estate, has reference exclusively to the title and holding of the land according to the allotment; and it is by the clause that follows that provision is made for the appellant, in consideration of her surrender to the other coparceners all her interest in the estate that had been partitioned. This last clause declares that the appellant shall have secured to her, by each of the other parties, the sum. of $6,244. But how to be secured is not declared, and it would appear that that was a matter of subsequent agreement. If a mortgage had been designed, covering all the land allotted to James R. Thomas, it should have been so expressed, and be made to appear why it was not executed. There is, however, nothing in the record to indicate that any other security was ever contemplated than the vendor’s lien and the personal obligation created by the bond; that, in the acceptance of the bond, the appellant regarded the covenant to secure as gratified ; and, certainly, such acceptance goes far to negative the idea that any other security was ever intended. Be that, however, as it may, it is clear that the mortgage and judgment creditors could not be affected by a simple notice (admitting that they had such) of the debtor’s obligation to secure a certain sum of money, without designation of the means by which it was to be done, or the property to be charged. Of all the cases upon the subject, we apprehend none can be found to support .such a proposition; and it is not the policy of either the Courts or . the Legislature, at this day, to extend , the doctrine of equitable mortgage, when to the prejudice of bona fide creditors.

(Decided 26th January, 1870.)

Approving, as we do, of the order appealed from, it will be affirmed.

Order affirmed.