George Fitzhugh and others vs. William S. McPherson, adm'r d. b. n. of Lewis Neth, 9 G. & J. 51

Dorsey, Judge, delivered the opinion of the court. The appellants’ first ground assigned for the reversal of the chancellor’s decree is, that there is no evidence in the cause to sustain it, because, as is alleged, the commissioners did not take the oath annexed to the commission, and their proceedings under the commission are therefore null and void. Had this objection been taken by an exception filed at the proper time in the chancery court, it would necessarily have been considered and determined by the chancellor, and his determination would have been a fit subject for review in this court. But the question as now presented by the record is, by the 5th

section of the act of 1832, ch. 302, excluded from our consideration. That

section enacts “ that hereafter in all causes in the court of chancery or any county court as a court of equity, all objection to the competency of witnesses, and the admissibility of evidence, and to the sufficiency of the averments of the bill or petition, shall be made by exceptions filed in the cause, and no point relating to the competency of witnesses or to the admissibility of evidence, or the sufficiency of the averments of the bill or petition, shall be raised in such causes in the court of Appeals, or noticed, or determined, or acted on, by the court of Appeals, unless it- shall plainly appear- in the record that such point had been raised by exceptions as aforesaid in said court of .chancery or county court.” • It is true that the defendants more than a. month after the passage of the decree did file a series of 'objections to it, one of which was, that now relied on against the admissibility of the evidence taken under the commission.

But such a proceeding, was wholly irregular, „and cannot be regarded as in any wise relieving the defendants - from the effects of the prohibitory enactment of the above méntioned section. The manifest design of the legislature was, that all objections to the admissibility of evidence should be taken by exceptions filed in the cause before the passage of the decree, that the chancellor whilst decreeing, might have them in view, and that the opposite party might resort to the appropriate means of obviating their effects, whilst the cause, continued before a tribunal where such resort could be had.

The second ground of reversal to wit: because it does not. appear from the record that the defendants in the original bill were summoned to answer to the amended bill, is equally unsustainable. When the amended bill was filed, none of the defendants had answered, save Daniel D. Fitzhugh, who, in his answer to the original bill had fully responded, as to all the matters in the- amended bill by which his interest could be affected. To have required of him a second answer, would have been such

an act of supererogation, as is never imposed upon its suitors by a court of equity jurisdicdiction. As regards the other defendants to the original bill they were called upon by the amended bill simultaneously to answer both. Such a call we deem sufficient, and no valúa-, ble result could have been obtained by the issue of new subpoenas. The third ground is because the order, pro confesso, of the 19th December, 1833, was not served upon George Fitzhugh and Mary Fitzhugh by the 25th February, 1834, or at any other time. This we think equally untenable.

In the absence of all direct proof to the contrary, we regard the statement of the chancellor in his order of the first of April, 1834, “that the above mentioned order had been duly served,” sufficient evidence of the truth thereof. Rigden vs. Martin, 6 Har. and John. 407. The fifth ground asserts that there is no evidence that William Cooke who signed the assignment to Thomas Buchanan as attorney for Rebecca Dulany was the attorney of Rebecca Dulany. Such an objection comes with an ill grace from the defendants under the circumstances of this case. The assignment was made in 1806.

It has been acquiesced in, and recognized by the appellants from that time, until the filing of their notes in this court, a period of more than thirty years. They have for about twenty-five years continued time after time, to pay to the said assignee and those claiming under him interest due on the debts assigned. Daniel D.

Fitzhugh, one of the appellants, in his answer in express terms admits the assignment of the debts due to the said Rebecca Dulany, to Thomas Buchanan; and three of the four appellants, by a bond and agreement under their hands and seals, the first dated in 1822, the second in 1825, by necessary implication, and also in the said agreement in express terms admit the assignment and its validity, and in like manner make the same admission in 1835, in their instructions to the auditor to state the accounts.

And they exhibit and claim credit for a receipt given in 1808, by Thomas Buchanan, (and which has been allowed to them) in which this assignment is expressly stated. In addition to all this, a decree, pro confesso, has been entered in this cause against Rebecca Dulany and her representatives, by which she admits all the allegations in the appellee’s bills, one of which is the assignment of the said mortgage debts of the said Rebecca Dulany.

Under circumstances like these to compel the appellee to produce further proof of the validity of the assignment in question, would be a departure from the settled doctrines of a court of equity, .and at war with the dictates of reason and common justice.' The sixth ground assigned' is “ because the decree is for the salé of all the lands mentioned in the proceedings for payment of the two debts of £230 and £400 added together and interest compounded thereon; when complainants’ exhibits A and B shew that the life estate of George Fitzkugh, the elder, (who held a life estate in 500 acres) and his fee simple estate in 188 acres never were charged or chargeable with payment of the debt of £400.

To this objection it is only necessary to refer to the aforesaid bond and agreement of 1822 and 1825, in the latter of which the said George Fitzkugh, the.elder, ratifies and confirms the said mortgage of 1805, and makes as far as he is concerned, the land and premises therein mentioned, including both his said life and fee simple estate, liable for the debt for which the chancellor has decreed its sale.

We do not concur with the appellee’s counsel, when they insist on the rejection of Samuel Ridoufs testimony, as having no relation whatever to the matters of account referred to the auditor, nor do we believe it to be the interest of the appellee that we should do so; but for the proof that the bond and agreement of 1822 and 1825, were executed by George Fitzkugh, the elder,, it is not easily discoverable from the record how his life estate in the 500 acres, or his fee simple in the 188 acres, can be charged with the debt of £400, on the compound interest thereon and on the £230 debt.

But for this proof the auditor’s statement No. 5, could not be sustained as against George Fitzkugh, the elder, nor could the decree of the chancellor predicated upon it, share a better fate. The accounts between the parties, the charges upon the respective mortgaged estates of the several appellants,- could not have been correctly stated by the auditor until the facts established by Ridoufs testimony were laid before him. The order of the chancellor therefore was in this respect a sufficient warrant for the acts of the auditor.

The tenth ground upon which a reversal of the decree of the chancery court has been claimed is, “ because exhibits A and B, being conveyances of different estates, by different parties, at different times, to secure (in part) different debts, ought to have been the subject of separate and distinct bills, and could not properly be embraced by one. There is no weight in this objection, The chancellor could not have decreed definitively in reference to the mortgaged premises or any of the rights of the respective parties upon any other bill than that which embraced in it, all the conveyances.

Had the bill been filed only upon the deed of 1791, and the defendants in their answer had set out the deed of 1805, the complainant would have been compelled to amend his bill, and introduce into it the latter conveyance, and had the respondents then have set out the bond of 1822 and agreement of 1825, the complainant must again have asked leave to amend his bill to charge in it, the execution of such bond and agreement.

The correctness of the decree therefore stands unimpaired by any thing alleged in the first, second, third, fifth, sixth, and tenth grounds, on which, its reversal has been insisted on; but under the present proceedings and proofs in the cause it cannot evade the force of the fourth, seventh, eighth, and ninth objections. The fourth is because the said order, pro confesso, (meaning the order of the 19th December, 1833,) gives the defendants until the 4th of December, 1834, to answer the bill, and yet a decree, pro confesso, was passed against them on the 1st day of April, 1834.

To have made absolute the order, pro confesso, as was done on the 1st day of April, 1834, the chancellor must have been satisfied that the order of the 19th of December had been served upon the defendants, and that they were knowingly guilty of a default in not filing their answer within the time limited by the order. It is true that a solicitor in chancery, knowing the terms of the Chancery court to be held in March, July, September, and December, and that by the second

section of the act of assembly of 1799,ch. 79, the chancellor was not authorized to fix a day for the filing of the defendants’ answer, beyond the ensuing March term, would contrary to the natural import of its terms have understood the order as -fixing the time for filing the answer on or before the 4th day of March, next term, instead of on or before the 4th day of December term next, yet it would be unreasonable and inconsistent with the principles of equity and justice to impute to an uninformed suitor, the same knowledge and understanding, to visit on him the sins of a wilful defaulter, and to punish him accordingly.

We think therefore that the order, pro confesso, of the 1st of April, 1834, was erroneously passed, and can give no support to the decree in this cause. The point raised by the appellants’ seventh ground under the insufficient proofs taken in the cause cannot be resisted.

To bind the interest of George Fitzhugh, junior, in the mortgaged premises for the interest compounded at the dales of the assignments of the mortgage debts to Buchanan and Neth, his concurrence in the making of such assignments must be proved, or his subsequent ratification of, or assent to such compounding must be shewn — he cannot infer it solely from the credit claimed from exhibit E, because the payments on which those credits rest do not appear from any testimony in the record to have been made by him, or with his knowledge or approbation.

Had the appellee have proved (as doubtless he could have done) the truth of the endorsements of payments made on the bond of 1822, the difficulty in question would have been effectually obviated. The eighth ground is, because the legal representatives of Walter Dulany, deceased, mentioned in complainant’s exhibit A, and Upton Scott, or his legal representatives are parties in interest, and should have been parties to the cause.

The debt due to the representatives of Walter Dulany having since the deed of 1791 been of more than forty years standing, and there being in the record nothing to show such a continuance, revival, or recognition of that debt, as would render it a subsisting lien upon the mortgage premises or any part thereof, and the appellee having in his bill of complaint alleged, that the said debt was paid and discharged; we think the presumptive bar from the lapse of time, is so conclusive against their claim, that it was not necessary that the appellee should have made them parties to this suit.

But Upton Scott, or his representatives stand in a very different situation. Daniel D. Fitzhugh, one of the mortgagors, in the deed of 1805, explicitly admits in his answer, the present existence of Upton Scott's debt. Such admission although it does not so far revive the debt as to make it available, when in conflict with the claims of the appellee, does operate to remove the presumptive bar from length of time so far as the rights of Daniel D. Fitzhugh are concerned, and restores it to full life as an effective lien on all such interest of Daniel D.

Fitzhugh in the mortgage premises as may remain after satisfying the claim of the appellee. Upton Scott then, if living, or his representatives in the event of his decease, have such an interest in the mortgage premises, that as parties to these proceedings they should have an opportunity of asserting and protecting their rights.

The 9th ground which is relied on by the appellants, for reversing the decree is thus stated, because the mortgagors cannot by any agreement compound the interest on the principal debt, and render the whole a charge upon the lands to the prejudice of those whose debts are secured by the same mortgage, and of the Bank of Maryland a subsequent mortgagee.

The first branch of this proposition has not been, and cannot be contended for, if by debts secured by the same mortgage, is meant debts which are subsisting liens upon the mortgaged premises and are obnoxious on the part of the plaintiff, if otherwise conflicting with his claims, to no other bar to their recovery, than that arising from the compounding of interest.

But the last branch of the proposition (as to the rights of the Bank of Maryland,) involving in its consideration some important principles of law, as yet unsettled in Maryland, not appearing to have been decided by the chancellor and its decision neither tending to the affirmance or reversal of his decree, we mean to express no opinion upon it. The proceedings in the cause have not as yet reached that state of maturity, which they must obtain before that question is presented for adjudication.

The decree as respects the conflicting claims of the parties upon the mortgaged premises makes no decision ; it simply orders a sale of the property, and that the proceeds be brought into court for distribution. JVon constat that as between such claimants there will be any conflict; the mortgaged premises may sell for enough to satisfy all the liens upon it. In the event of its not doing so, when the auditor has stated the account distributing the fund, and not before, will the chancellor be called on to adjudicate upon the rights of the claimants.

It appearing to this court that the substantial merits of the cause will not be determined by the reversing or affirming of the decree of the chancellor, and that the purposes of justice will be advanced by so doing, it is thereupon this 22d day of December, 1837, ordered and adjudged by the authority of this court, that this cause be remanded to the court of Chancery, for the purpose of amending the pleadings, making Upton Scott, if living, or if dead, his legal representatives, a party or parties defendant, and that such further testimony be taken therein, and other proceedings had under the chancellor’s direction, as shall be necessary for determining the cause upon its merits.

CAUSE REMANDED TO CHANCERY.