Winingder v. Diffenderffer's Lessee

5 H. & J. 181

• Court: Court of Appeals of Maryland
• Decided: June 15, 1821
• Status: Published

Opinion

Johnson, J.

delivered the opinion of the coiirt. An action of ejectment was brought in Baltimore county court, to recover the land in question, by John DiffenderffePs lessee, and a judgment was given for the plaintiff on a case stated, and from that judgment the defendant has appealed to this court.

By the cáse stated it appears, that Christopher Guiesler, or Kiesler, was'possessed and entitled to the premises in the declaration mentioned for the term of ninety-nine years, and on the 17th of November 1782, duly made and executed his last will and testament, by which he bequeathed to ids son Philip Kiesler; and by his will his wife is appointed his executrix, who, after his death, in due form of law obtained letters testamentary thereon.

It also appears that the executrix assented to the bequests of the will, and in pursuance thereof took possession, (amongst other parts of the testator’s property,) of the premises mentioned in the declaration, and that she died before the institution of this suit.

Peter Kiesler, on the death of his mother, took, or attempted to take, the benefit of the act, entitled, “An act for the relief of insolvent debtors,” passed in the year 1774. If he obtained the full benefit and the relief of that act, then by operation of law, all his real and personal estate, either in possession, remainder or reversion, became vested in the sheriff of Baltimore county, who is directed, first giving twenty days notice by advertisement set up at the court-house door and other public places of the county where the land lies, to sell the same at public sale for the best price.

By the act of 1774, ch. 24, if any person committed or charged in execution, or for the want of special bail, at anytime after he shall have actually remained in prison, by the space of twenty days, on such commitment or charge, shall petition any three justices of the peace of the county wherein such prisoner shall bedetained, for his discharge,, the justices shall thereupon appoint a time for their meet-n°t less than thirty nor more than forty days, at the court-house, or gaol, and shall certify in writing to the sheriff, who shall, twenty days at the least before the appointed time, affix one copy of the certificate at the door of the county clerk’s office; and another at the prison door of the county; at which day so to be appointed, the justices, or1 two of them, as well as the sheriff, are to attend at the court-house or prison, and the sheriff shall produce the body of such prisoner before the justices who shall attend, and shall make known to the justices the cause or causes of the imprisonment, and the time he hath been actually imprisoned under such commitment; and if it shall appear that such prisoner hath been actually imprisoned as before mentioned, and it doth not appear from the causé or causes of imprisonment, or by the allegations upon oath, of the ci editors, or some of them, that the-whole debts amount to £200 sterling, then such prisoner may deliver to the sheriff a schedule of his whole estate, debts and credits, which schedule shall be subscribed by the prisoner before the justices, who shall also subscribe the same as witnesses, and at the request of the prisoner the justices shall administer to him the oath pi-escribed by the act.

By the 4th section of the same law it is provided, that ño person shall obtain its benefit unless the petition is exhibited within sixty days after the commitment.

The land in question was sold by the sheriff of Baltimore county to the lessor of the plaintiff, and the right of the plaintiff below to recover, depends on the question, whether the title of Peter Kiesler passed, in virtue of the proceedings on his petition, to the lessor of the plaintiff, through the sheriff.

It appears, that on the 1st of August 1808, the application by petition was made to three of the justices of the peace of Baltimore county, who appointed the 1st day of September following for the meeting; that they certified in writing to the sheriff the application so made to them, and directed him to produce the body of the prisoner, to give due notice according to law to the creditors to appear and shew cause, (if any,) why he should not be liberated; and on the first of September, the justices and sheriff met, when- the person of Kiesler was produced; the sheriff' proved to them that he did set up the notices at the places mentioned in the act, on the 10th of August last, being twenty days and upwards previous to his discharge, and at, the same time made known to the justices the cause of the imprisonment, and that he had actually been imprisoned for the space of 52 days; and it appearing to them, from the cause of the imprisonment, that his whole debts did not amount to the sum of £200 sterling, or the value thereof, and the petitioner having delivered to the sheriff a schedule in conformity to the provisions of the above mentioned act, they administered an oath to him, and then gave him his discharge.

At the time of the petition, as disclosed by the certificate of the justices, Kiesler had actually remained in prison for twenty days and upwards, in virtue of a writ at the suit of George Hass, for £37 10 0 debt, and 34 shillings and 10 pence costs, and for officers fees. There was no other evidence produced to the court of the facts above set forth, except the proceedings themselves as returned to and deposited in. Baltimore county court office.

Various objections have been made to those proceedings as being defective previous to the time appointed for the meeting of the justices, and as defective afterwards on account of the oath which was administered; and it has also been urged, that the sale and the conveyance did not transfer the land in dispute in this cause.

In the first place it was contended, that evidence aliunde ought to have been produced to prove that the statement of facts, as set forth in the proceedings, even admitting that that statement in every respect corresponded with the act of assembly, was correct. But this objection, as it is most unquestionably unfounded, was relinquished. If it could be sustained, then it must follow, that every person claiming property sold under the act of 1774, must secure and preserve, (if it was practicable, as most evidently it is not,) extrinsic proof, to establish .the facts set forth by the officers selected to carry the law into execution.

But waiving this objection, it is said, that it doth not appear that the petitioner had been in confinement under the claim of the debt, and for the officers fees, for the time specified in the act, for although the sheriff made it known to the justices that he had been imprisoned 52 days, yet as no words are inserted, that he had not been there more than 60 days, and as a confinement for the latter period would exclude him from the provisions of the act, it is contended the proceedings are void.

It-is stated that he had been, at the time of the application, in confinement for the term of twenty days and upwards, and on the first of September, (the day of meeting,) he is represented as then having been confined fifty-two days, it does not necessarily follow that he might not have been there longer than that space of time; but. as it was the duty of the sheriff, from whom alone information of the fact was to be obtained, to disclose the whole truth, the ' court must infer, and no other fair inference can be drawn, that he had not been confined more than the fifty-two days; and as he is set forth to have been in confinement under the two claims on him, without specifying how long under the one, and how long under the other, the correct conclusion is, that the confinement was under both, for the period' stated. It is said that it does not negatively appear that his debts did not exceed ¿0200 sterling, but it affirmatively appears, that the claims under which he was imprisoned are under that sum, and as no allegations appear to have been made on the part of his creditors, on oath, setting forth the debts due from him exceeded that sum, the maxim de non apparentibus et non existmtibus eadem est ratio, must apply.

As then the proceedings, under which the discharge ■took place, were regular previous to the oath being administered, will the oath that was taken vitiate the discharge, and divest the property out of the officer, in whom the law designed to deposit it for -the interest of the respective parties?

The objection principally relied on is, that the word “or” as contained in-the form of the oath before the words “or to secure the same to: receive or expect any profit or advantage thereof,” has been omitted, and it is contended that.such omission renders the oath administered, and the one required by the act in question, substantially different. The prisoner,- it has been insisted, might, consistently with the oath he took, have secured his-property to others to defraud his creditors, provided he himself did not thereby receive, or expect to receive, any profit or advantage.

If the meaning of the oath, as administered, rested on . the omission of the word “or” before the words following it, then the objection would be sustained; but when the whole of the oath, as administered, is taken together, it appears improper to. conclude that such conveyances or dispositions of. his property could, without violating his oath, have been made, for as in the preceding part he swears that he has not “directly or indirectly sold, lessened, or otherwise conyeyed, disposed of or intrusted, all or any part of his estate, thereby to defraud his creditors,” .how could, conveyances of property, consistently with that part of the oath, have been fraudulently executed either for his own or any other person’s benefit?

But the omission of tb e word “or” in the place where it has been omitted in the case before us, does not change the meaning of tiie oath, on taking the context of the act of 1774 into view, as it will be perceived that the omission of this word, does not materially vary the oath it prescribes,and the obligation is perfect without it; with the word inserted, the oath is, that conveyances have not been made to defraud creditors for his own or any other person’s benefit; without it, that the insolvent “had not sold, corveyed, &c. to secure the same, to receive or expect any profit or advantage. ”

If then the proceedings are regular to the time of the discharge, has. the property in question that passed to the sheriff been transferred by him to the lessor of the plaintiff?

This is a contest on the part of a stranger who, without disclosing any interest except being on the land in contest, now calls in question the • validity of these proceedings. He objects to the sheriff’s sale, because by the deed it is not disclosed what was the notice given. The deed now objected to is that of a public trustee, that is, one who is selected by operation of law, and against whose conduct none who were parties to the original proceedings make any opposition.

To sustain this objection would render inadequate most of the deeds by trustees under decrees in chancery, who always have their course of proceeding pointed out; but, whether it is pursued or not, never appears on the face of the deeds they exécute for the property sold by them.

Although the court have determined on the various objections that have been made to the proceedings in this case, they do not wish it to be understood, that discharges under the insolvent laws are liable to all the objections that are usually reli ed on against proceedings of persons limited by special authorities; it is sufficient to say, that the objections that have been taken to the proceedings given in evidence in this cause, are not sustained, and therefore the judgment of the court below, founded, on their sufficiency, is affirmed.

JUDGMENT AFFIRMED.