Daniel O'Neill vs. William J. Cole, 4 Md. 107

Tuck, J., delivered the opinion of this court. This bill was filed by the appellee against the appellant, aud others, for an injunction, which was granted. After the answers were filed the chancellor passed an order continuing the injunction, and on taking evidence under a commission issued by consent, a final decree was passed making the injunction perpetual. From this decree the appellant, one of the defendants, has appealed.

Much of the argument of the counsel for the appellant sought to show that the chancellor in his opinion accompanying the-order continuing the injunction, had taken an erroneous view of the law applicable to the case as then before him. It is not necessary to express our views upon the neglect discussed by his honor, because the evidence subsequently brought into the cause, in our opinion, relieves the case of all difficulty. We are also-relieved from considering the character and construction of the deeds mentioned in the proceedings, believing that Mrs.. O’Neill, then Mrs.

Drake, understood and voluntarily executed the conveyance now charged to be void as against the appellant. It appeals that after the marriage engagement had been broken off, Mrs. Drake executed the deed in question, and that it was recorded on the second day thereafter. Subsequently the engagement was renewed and the marriage took place.

If the recording of this deed were not constructive evidence of knowledge on the part of O’Neill — and we are of opinion that such was the effect. 1 Story's Eq., 403 — the testimony very clearly shows that he had actual knowledge of the existence ami character of the conveyance before his intermarriage with the grantor. If the appellant had reason to suppose that his late wife before their marriage, had been imposed upon, or induced to execute a conveyance of which she did not know the contents and meaning, it was quite proper for him to resist the attempt of the appellee to possess himself of the property.

In this we think he has failed ; and, if, failing in this, lie seeks to make out a case of fraud in law upon his marital rights, there is no reason why he should not be bound by the notice which our recording acts imputes to others when seeking to vacate conveyances, or whets claiming against them. It was objected that the complainant did not, in his hill, aver that the appellant had notice of the deed before his marriage.

This is not made the ground of exception in the court below] and, besides, we do not think that a party in pleading, in a case like this, must negative every hypothesis on which the defendant may possibly rest his defence. The bill shows a case entitling the complainant to relief, and that is all that is required. It is said, however, that the exceptions to the the testimony sufficiently raise this objection to the bill. We do not concur in this view. The defendants denied knowledge of the deed under which the complainant claims.

It then became necessary for him to furnish this proof, which he might well do without amending his bill. It was within the issue raised by tiie defendant himself. Upon the sufficiency of the exceptions on both sides for any purpose we express no opinion. See Berrett vs. Oliver, 7 Gill and Johns., 191. Upon the question of jurisdiction we think, clearly, that the point is made too late, under the act of 1841, ch. 163. The object and use of the general reservation at the commencement of an answer is explained in Story's Eq. Pl., secs. 694, 870. In our judgment it has no application to the present case.

It might as well be relied upon as a general demurrer, or as an exception to the sufficiency of the averments of the bill of complaint, which office most clearly it. could not perform. Decree affirmed, with costs.