McKaig v. Piatt

delivered' the opinion of the Court.

The appeal in this cause is from the decree for a sale of the property, passed on the 19th day of August, 1868, and from the order overruling the exceptions of the appellants, and ratifying the auditor’s report distributing the proceeds of sale, to the exclusion of the claim of the appellants, passed on the 26th day of May, 18o9.

One of the points raised, and insisted on, is that by the bill filed by the appellants and Messrs. Hopkins, in February, 1863, against George Hoblitzell, James H. Hoblitzell, John T. Edwards and George M. Blocher, sheriff, numbered 974 on the equity docket, the complainants in this cause are barred from maintaining it, and the pendency of the former is pleaded as a bar.

The object of the former bill is well defined by the appellants, in their answer to the bill in this cause, to be “for the purpose of enforcing the payment of the balance of the indebtedness mentioned in said deed of trust.” Ancillary to that object was the prayer for an injunction, which was issued, and which restrained the defendants therein from selling or disposing of any property that might be seized by virtue of the writs of fieri facias mentioned in the bill, and “ also from taking or having any or further proceedings on the judgments, or writs of fieri facias.” In this cause the complainants are some of the heirs-at-law of said George Hoblitzell, and the *258defendants are the other heirs-at-law, one of the complainants, claiming that he is also a judgment creditor of said George Hoblitzell, who was dead at the time of filing the bill, August, 1867; and the object is to sell the real estate of the deceased ancestor, for distribution of the proceeds of sale amongst his heirs-at-law, after payment of said judgment. That judgment is not either of those enjoined. For the purposes of this cause, the rule .on this subject is sufficiently stated in Seebold vs. Lockner and wife, 30 Md., 133, where the authorities are referred to. The Court says “it is a good plea to a bill in equity that there is another suit depending in the same Court for the same cause. It is however requi-' site that the whole effect of the second suit should be attainable in the first.” “ It thus appearing that the whole effect of the present suit cannot be attained by the appellees in the other case, we think the plea was properly overruled,” although part of the relief sought in both cases was the same. In this cause no relief is sought in respect of the judgments or fieri facias enjoined in the former. We concur therefore in the opinion of the Circuit Court on this point, that the pendency of the cause, No. 974, was not well pleaded in bar of proceedings in this, and are of opinion - that the decree of 19th of August was properly passed.

The next question is on the order of May 29th, 1869, finally distributing the fund, and excluding the appellants from participation in it. The learned Associate Judge who passed this order, and the auditor who stated the account, appear to have understood the opinion of the Court filed on the 18th of August, 1868, and accompanying the decree of the 19th, as concluding the claim of the appellants, on the grounds of laches, limitations, or lapse of time. We do not so understand the opinion. It said in express language “ if there is really any portion of the debt still due that can be enforced against the estate of the deceased, it will be. competent to the parties to file the claim in this cause, and participate in the distribution of the proceeds of the sale of the *259real estate sought to be sold: the proceedings in this case being as well for the benefit of creditors, as the heirs of the deceased.”

The bill in Wo. 974 was, on its showing, for a legitimate object. It was an assertion of the claim of the appellants made in the only forum which could give any effective relief towards realizing the claim. George Hoblitzell answered and substantially admitted that there was a balance due. These appellees are bound by that admission. This bill was pending when George Hoblitzell died. Wo proceedings had been taken by either party to it to finally dispose of it. Wo suggestion of his death was made in that canse. He might, in his lifetime have brought it to an end by laying a rule, further proceedings or otherwise. After his death, his representatives might have suggested the death, and so compelled the complainants to make new parties, or to abate the suit. But it was not abated when the bill in this cause was filed, and was still pending, and part of the proceedings in it was the answer of George Hoblitzell admitting a balance due. It must be considered as a continuing demand by the appellants, sufficient to save their claim from the bar of the Statute.

We do not think that, under the circumstances of this case disclosed by the record, the appellees can avail themselves of the defence of laches, limitations, or lapse of time, and the presumptions therefrom arising. And we concur in the opinion of the Circuit Court, of August 18th, 1868, that the appellants are entitled to participate in the distribution of the proceeds of sale of the real estate, in this cause, to the extent of any portion of the debt that may still be really duo.

Before determining- what portion of the debt, if any, is still due, it becomes necessary to pass upon the exceptions to the admissibility of the evidence of the appellants. We do not think that they are competent witnesses in respect of the balance due. That question involves the transactions between Hoblitzell, deceased, and themselves. To whatever extent his *260payments to them may be reduced, they are directly benefited. To the extent of payments made by him to them, or of moneys realized by them from the trust property, they may be liable to the cestuis que trust. We do not think, therefore, that they are nominal parties merely.

There is no allegation in the record of payments made by Hoblitzell to, or of proceeds of the trust property received by, the Messrs. Hopkins, except through the appellants. The Messrs. Hopkins might have been properly made parties to the cause. After the final decree they asked, by petition, to be made parties, which was denied by the Court below, and they did not appeal. No question as to parties was made by the appellants by their answer, or otherwise. Nor could any such question affect the point now being considered. If Messrs. Hopkins were parties, with the appellants, that fact would not tend to relieve the position of the appellants from that of interested parties — parties, not nominal merely, but having a direct interest in the result of the inquiry how much had been received by them for the use of the Messrs. Hopkins, and consequently what is the actual amount of the balance due on the single bills from the estate of Hoblitzell.

The authorities referred to by the appellants, 1 Bland, 268; 29 Md., 538, and 31 Md., 293, do not, in our judgment, sustain their position, and we think that the exceptions to their evidence were properly sustained.

The cause will be remanded, to give the parties an opportunity to produce further proof, if they may think proper, and it be accessible to them. And by way of indicating the points to which their proof ought to be directed, as well as of expediting the termination of the cause, in case further proof may not be obtainable, we will proceed to express our view's on the case as now' presented by the record.

_The claim of the appellants consists of the three single bills filed with the auditor, due respectively in June, 1844, June, 1845, and June, 1846, with interest from date, which is 13th of September, 1842. The signature of George Hoblit*261zell to each of those is proved by the testimony of Hiram B. Wolfe, a competent witness. The only evidence for the appellees is the admission in the answer of the appellants to the bill in this cause, that on the 29th of August, 1848, they sold, under the deed of trust, property for the sum of about $5,000. With this admission is coupled an allegation that this sale included the right of the wife of George Hoblitzell, then living on said lands, and who was not a party to the deed of trust; and that after purchasing and paying for the right of the said wife, they applied the net proceeds of the sale to the payment of the debt in the deed of trust mentioned. The right referred to was a potential right of dower, the husband being then alive. The answer does not disclose ■what sum -was paid by them for said potential right of dower. In the testimony of one of the appellants appear two papers, marked respectively “Hunter Deed” and “Agreement,” for the purpose of showing that they did not sell for the sum of $5,000, but for a lesser amount, and consequently that the statement in the answer to that effect was by mistake, and also that the sum of $700, was paid to the wife for her potential right: although that paper, the “Hunter Deed,” by itself, would go to show that the $700, mentioned in it was paid by Hunter the grantee. With the exclusion of the testimony of the appellants, however, both these papers, at all events as now in the record, must be excluded, and the admission of the answer, in the absence of any other competent proof, must be taken to charge the appellants with $5,000, as of the date of 29th of August, 1848, to be applied to the payment of the indebtedness specified in the single bills. The effect of the proof contained in the present record would then he, in our opinion, to charge the appellees, or the proceeds of sale of the real estate, with the three single bills, $3,658.19, and interest from 13th of September, 1842 to 29th of August, 1848, and to credit that gross amount of principal and interest with $5,000 as received by the appellants on the latter day, and the balance remaining. with interest from 29th of August. *262■1848, to the day of sale, together with a due proportion of the interest received by the trustees to make the sale, would be the sum due to the appellants, unless the appellees may produce other proof of further payments. That they may have an opportunity to do so, and also that the appellants may have an opportunity to establish, by competent proof, that in fact they sold the trust property for a less sum than that set forth in their answer, and that the statement therein was by mistake, or that there was paid by them out of the purchase money received by them a sum certain for the potential right of dowei', or that the sum paid therefor ought, in justice, to be deducted from the purchase money chargeable to them, and that both parties may have opportunities to furnish any other proof tending to show the true balance due on the single bills, the cause will be remanded to the Circuit Court, where proceedings may be had in conformity with this opinion.

The decree of August 19th, 1868, will be affirmed, and the order of May 26th, 1869 will be reversed, the costs of this appeal to be paid out of the trust fund in the Circuit Court.

Decree affirmed, order reversed, and cause remanded.