Where, in an action to compel the re-execution of a lost deed, the declaration averred that the consideration of the deed was a certain sum, but defendants averred in their answer and testified that the deed was not made for a money consideration, plaintiff was not estopped from showing that the deed was in fact made upon some other consideration than that named in the declaration. [Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 81.] 4. APPEAL-EXCEPTIONS-OBJECTIONS TO EV IDENCE. Under Code Pub. Gen. Laws, art. 5, § 36, prohibiting any objections to be made in the Court of Appeals to the admissibility of evidence or the sufficiency of the averments of a bill, unless it appears by the record that such objection was made by exceptions filed in the court below, where, on appeal from courts of equity, no exceptions were taken below to the testimony, the case will be determined according to the evidence, whether it corresponds to the allegations of the bill or not. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1503.] 5. LOST INSTRUMENTS-ACTION TO RESTOREDEFENSES. In an action to compel the re-execution of a lost deed, plaintiff testified that the land for which he furnished the money was originally deeded to his wife by reason of the fact that there was pending a suit on a bond on which he was liable, that the suit was subsequently decided in his favor, and that the land was thereafter on the death of his wife deeded by defendants to plaintiff. Held, that there being no creditor before the court, and neither allegation nor proof of any existing creditor of plaintiff, who could be prejudiced by the execution of the proposed deed, the decree in his favor would not be reversed. 6. VENDOR AND PURCHASER-VENDOR'S LIEN. Where, in an action to compel the re-execution of a lost deed, the evidence showed that the lost deed was not in fact executed for a pecuniary consideration, defendants were not entitled to a vendor's lien on the land for the consideration named in the deed. [Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Vendor and Purchaser, § 643.] Appeal from Circuit Court, Carroll County, in Equity; Wm. H. Thomas, Judge. Bill by James L. Shugars against Charles 66 A.-18 Abram Shugars and others. Decree for plaintiff, and defendants appeal. Affirmed. Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. Edward J. Colgan, Jr., and Thomas G. Hayes, for appellants. Charles E. Fink, for appellee. SCHMUCKER, J. The appeal in this case is from a decree of the circuit court for Carroll county, directing that a deed of all of the interest and estate of the defendants in certain land and premises be executed and delivered to the plaintiff, and appointing Charles E. Fink trustee to make the deed. The deed so to be made by the trustee is intended to take the place of a former one for the same property, which was executed directly from the defendants to the plaintiff, but has been lost or destroyed. The substantial facts alleged by the bill of complaint are as follows: On April 11, 1868, one Andrew Schaeffer and his wife conveyed to the plaintiff's wife, Margaret, the land in question, for a consideration of $2,000, which was paid by the plaintiff out of his own money. The plaintiff's wife, Margaret, died intestate seised of the land about 25 years ago, leaving him as her surviving husband; and also a son Charles A. Shugars, who is married to Addie Shugars; a son George H. Shugars, who is now dead, intestate, without issuehe was married in his lifetime to Mollie Shugars, who since his death has married William Hoffman-a son Samuel W. Shugars, who is married to Rosie B. Shugars; and a daughter Ada E., who is married to William H. Ebaugh. All of the said persons are defendants to the bill, except Samuel Shugars and wife, whose absence from the case is hereinafter explained. About 18 years ago, subsequent to the death of the plaintiff's wife, Margaret, all of her children, with their respective husbands and wives, united in a conveyance of their several interests in the said real estate to the plaintiff for a good and valuable consideration. The consideration mentioned in the deed was $2,000, and was fully paid, and the deed was duly executed, acknowledged, and delivered to the plaintiff, and remained in his possession, but was never recorded. Some time after the delivery of the deed, it was sent by the plaintiff to the office of his counsel in a then pending suit to be used as evidence, and it was taken from the office and lost, destroyed, or concealed by one of the sons of the plaintiff without his knowledge or consent. The plaintiff has always resided upon and been in the exclusive possession of the land in question since the death of his wife, and is still in possession of it. Since the loss or destruction of said deed, the plaintiff has requested and demanded of the defendants to re-execute and deliver to him a new deed for the land which they had conveyed to him by the former one; but, with the exception of his son Samuel W. Shugars and wife, who conveyed their in stated that he had the conveyance made to his wife under the advice of his counsel because he was surety on a replevin bond on which a suit was then pending which was ultimately decided in his favor. The witnesses all agree that the lost deed mentioned in the bill was executed and delivered to the plaintiff about 18 years before the filing of the bill by all of his children and their respective husbands and wives, including those who are defendants to this suit. They also all agree that no pecuniary consideration passed or was intended to pass between the parties to that deed; but different accounts are given in their testimony of what formed the true inducement and consideration for its execution. The plaintiff said that, prior to the making of the lost deed, the property had run down and was badly in need of repairs, and he proposed to the children that he and they should unite in repairing it. They said that they had no money, and he then proposed that they convey their interest in it to him, and he would repair it, to which they consented. They then made the deed to him, and he put the property in repair at a cost of over $500, and that the deed was afterwards lost. Charles A. Shugars, one of the sons, testified that the children gave the deed to their father, who was a blacksmith, because he had been compelled by a cancer to submit to the amputation of his right arm. Samuel, the other son, testified that the children voluntarily executed the deed to their father at his request. Mrs. Ebaugh alone testified that the deed had been made to the father upon an understanding that he would divide the property between the members of the family. Her account of the alleged arrangement was as follows: "Well, pap asked us to sign the deed, that he wanted to get the property so that he could reserve part of it for his own, so that, if anything happened to him, that terest to him, they have all refused to comply with his request. The plaintiff then, after alleging that he is without adequate remedy at law, prays for a decree requiring his son Charles A. Shugars to discover whether he still has the former deed in his possession, and, if so, to require him to deliver it to the plaintiff, and, in case that deed has been lost or destroyed, that the defendants be required by a suitable decree to convey by a good deed to the plaintiff their respective shares in the land and premises, and for an injunction and for general relief. The defendants jointly answer the bill. They admit the making of the deed of April 11, 1868, from Schaeffer and wife to the plaintiff's wife, Margaret, but deny that he paid the $2,000 consideration therefor out of his own money, but aver upon information and belief that it was paid by his wife. They admit the subsequent death of the plaintiff's wife, Margaret, and the making thereafter by her children of the deed to the plaintiff of their several interests in the property, but deny that the consideration for that deed was $2,000, or that any consideration therefor was ever received by them, or any of them, and they aver in that connection that the said deed was executed by them upon the understanding and agreement with the plaintiff, their father, that, upon the receipt of their deed to him, he would at once divide the land into separate portions, and, retaining one portion for himself, would convey one other portion in severalty to each of his sons and his daughter; but he never performed his part of the agreement, although often requested to do so. The answer denies that the defendant Charles A. Shugars had lost, destroyed, or concealed the deed to the plaintiff from his children, but avers upon information and belief that the plaintiff's deceased son, George H. Shugars, destroyed it. The possession and occupancy of the property in question by the plain- | stepmother would have something. He altiff is admitted, except as to about 1% acres thereof, which had been conveyed by the plaintiff and defendants to Samuel W. Shugars in 1898. The alleged demand by the plaintiff upon the defendants for the execution of a new conveyance of the lands by them to him is also denied, except as to a demand made immediately prior to the filing of the bill. The plaintiff, his surviving sons, Samuel and Charles A., his daughter, Mrs. Ada Ebaugh, and Lewis C. Myerly, the scrivener who drew the lost deed, were all put upon the stand as witnesses. We have therefore before us the testimony of all of the living participants in the transactions out of which the present controversy arose. None of the witnesses, except the plaintiff, professed to have any knowledge of who paid the $2,000 purchase money mentioned in the deed of April 11, 1868, from Schaeffer and wife to Mrs. Margaret Shugars. The plaintiff testified positively that he paid that purchase money out of his own funds, and further ways told us that he would equally divide it and give her a portion, but, as to receiving anything for it, I never did." Myerly, the scrivener, testified that he drew the lost deed at the request of the plaintiff, who, in response to an inquiry, said that all of the children were satisfied. The witness talked to two of the sons, and he thought also to the third, about it, and they said that it was all right, and they signed it in his presence after it had been written. He testified, further, that he had stated $2,000 as the consideration in the deed when he drew it; but that he saw no money pass between the parties to it, nor did he hear any mention of any understanding among them in reference to the making of a reconveyance from the father to the children. Each of the sons denied, when on the stand, that he had destroyed or concealed the deed or knew anything of its present whereabouts. We are satisfied from the evidence that the deed to the plaintiff from his children was executed and delivered by them to him at his request, without pecuniary consideration, from motives of filial affection and owing to his then almost helpless condition by reason of the loss of his right arm, and that the deed was subsequently lost. Under such circumstances, the jurisdiction of a court of equity upon the filing of a proper bill for that purpose to decree a restoration of the lost deed or a new coneyance of the property according to its terms is undoubted. We do not understand the appellants to controvert the existence of jurisdiction in equity for that purpose, although they deny, for reasons which we will notice, that this is a proper case for its exercise. They insist that the appellee's claim to relief is barred by his own laches in delaying so long after the loss of the deed to bring his suit. This not being a proceeding to impeach, set aside, or reform a deed, but to restore a lost one, the execution and delivery of which is not denied, the rights of the parties would not be altered or destroyed, but would be left in statu quo by the restoration. Under such circumstances, it has been held that neither laches, limitations, nor the illegality of the original instrument constitutes a good defense to the suit. Encyc. Pleading & Practice, vol. 13, p. 354; Com'rs of Suwannee Co. v. Com'rs of Columbia Co., 18 Fla. 78. Rockwell v. Servant, 54 Ill. 251. The execution and delivery to the appellee of the deed from his children vested the title to the land in him, and the loss of the deed has not deprived him of his title or revested it in the children, and they have therefore not been injured by the delay in bringing this suit. The restoration of the lost deed will not deprive them of any interest of value, but it will supply the appellee with appropriate evidence of the title which he now has. Under such circumstances, the doctrine of laches cannot be successfully invoked in their favor. Demuth v. Old Town Bank, 85 Md. 326, 327, 37 Atl. 266, 60 Am. St. Rep. 322; Sinclair v. Auxiliary Realty Co., 99 Md. 234, 57 Atl. 664. The record does not show a sufficient lapse of time between the loss of the deed and the institution of this suit to make limitations, if it be available to the appellants, a sufficient defense, for by analogy the period of 20 years would be requisite to extinguish the appellee's claim for the restoration of the lost deed of the land. Balto. & Ohio R. R. Co. v. Trimble, 51 Md. 110-112; Baldwin v. Trimble, 85 Md. 406, 37 Atl. 176, 36 L. R. A. 489; Crook v. Glenn, 30 Md. 70. A more serious objection by the appellants to the propriety of the decree from which they have appealed is that the lost deed on its face recited a consideration of $2,000, which the record shows was never paid, and that the decree makes no provision for its payment. They insist that the appellant was estopped, by the allegation in his bill that the consideration mentioned in the deed was $2,000, from showing that it was in fact made upon some other consideration. The defendants rely, in this connection, especially upon Thompson v. Corrie, 57 Md. 197, and Christopher v. Christopher, 64 Md. 583, 3 Atl. 296, and upon the general proposition, frequently asserted by this court, that it is not competent for the parties to a deed to prove a consideration different in kind from that stated in the instrument itself. Those two cases are quite distinguishable from the one before us. In Thompson v. Corrie, the grantor, under a deed which stated on its face that it was made for a money consideration, filed a bill to have it set aside for fraud. The fraud alleged in the bill was not proven, and the defendant offered evidence tending to prove that the deed was made voluntarily, upon the understanding and agreement that the grantor should have a home with the grantees in the property, and that they were willing to let her have the home then, if she desired it. That testimony was excepted to by the appellant. The court sustained the exception, holding that the parties must be bound by the terms of the writing into which they had voluntarily entered. Although the plaintiff had failed to make out her case of fraud, and the court did not set aside the deed, they retained the bill to allow her to assert a claim for a vendor's lien for the purchase money under the prayer for general relief. In Christopher v. Christopher, the grantor, under a deed stating on its face a money consideration, filed a bill to enforce a vendor's lien on the land conveyed for the purchase money, which was alleged to be unpaid. The grantee admitted in his answer that he had not paid the purchase money called for by the deed, but by his own testimony sought to prove that the real consideration for the deed was "moneys advanced, services rendered, and necessaries furnished" by him to the grantor, without showing how much money was advanced or the value of the services or necessaries. This testimony was contradicted, but the report of the case does not show whether it was excepted to or not. The court held that proof was not admissible to show a consideration different in kind from that stated in the deed, and that the plaintiff was entitled to the vendor's lien. In the first place, it is to be observed that in both of the cases just mentioned proof was held to be inadmissible to show, against a plaintiff insisting that a deed truthfully stated a money consideration, that the consideration was of a different kind. In the present case, all of the defendants aver in their answers, and testify as witnesses, at the ɑeed was not made for a money consideration, and the plaintiff testifies to the same fact. No exceptions were flied by the defendants to testimony or to the sufficiency of the averments of the bill. Under section 36 of article 5 of the Code of Public General Laws, prohibiting any objections to be made in this court to the admissibility of evidence or the sufficiency of the averments of a bill, unless it shall appear by the record that such objection was made by exceptions filed in the court below, this court has repeatedly held that on appeals from courts of equity, where no exceptions were taken below to the testimony, the case will be determined according to the evidence, whether it corresponds with the allegations of the bill or not. Schroeder v. Loeber, 75 Md. 195, 23 Atl. 579, 24 Atl. 226; Engler v. Garrett, 100 Md. 387, 59 Atl. 648; Harwood v. Jones, 10 Gill & J. 419, 32 Am. Dec. 180. The appellants also contend that the appellee should be denied the relief for which he asks, because his own testimony shows that he had the deed of 1868 from Schaeffer made to his wife in order to defraud his creditors, and that he kept the lost deed from his children off of the public records for a similar purpose. The only evidence in the record on that subject is his own, and he testified that the suit on his bond, which caused him, under the advice of counsel, to have the first deed made to his wife, was decided in favor of the defendants, and no liability to any creditor arose from that source, and that he paid off the contested debt, which caused him to omit recording the second deed. There being no creditor before the court, and neither allegation nor proof of any existing creditor of the appellee who could be prejudiced by the execution of the proposed deed, we see no reason for reversing the decree appealed from on that ground. Nor do we think that the appellants are entitled to a vendor's lien on the land for the $2,000 consideration mentioned in the lost deed, when all of the parties to the suit agree that the lost deed was not in fact executed for a pecuniary consideration. We find in the record no sufficient reason for reversing the decree appealed from, and it will be affirmed. Decree affirmed, with costs. (105 Md. 620) TURPIN et al. v. DERICKSON et al. (Court of Appeals of Maryland. April 2, 1907.) 1. APPEAL-RIGHT OF REVIEW-PERSONS ENTITLED-PRIVITY WTH PARTIES. A trustee reported to the court and had ratified a sale of a farm to two parties. Afterwards he made a deed to only one of them. This grantee subsequently deeded all his property to a trustee for the benefit of his creditors, who sold the farm to various persons. A decree was rendered reforming the ratification of the sale by the court to conform to the deed, and ratifying the sale by the grantee's trustee. Held, that the grantee should not be deprived of an appeal from the decree because he had deeded his interest to a trustee, who had admitted the allegations of the bill upon which the decree was rendered, in his answer thereto, and had proved their truth as a witness, where by the terms of his deed to the trustee the latter was to reconvey to him the surplus remaining after his creditors' claims had been satisfied. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 934, 938.] 2. SAME-PARTIES INJURED OR AGGRIEVED. The fact that a decree in an action against a defendant reforms a ratification of sale by the court to make it conform to defendant's deed, thus benefiting him somewhat, does not deprive him of an appeal therefrom, where the decree provided for other relief, and he had filed an answer thereto denying most of its material allegations. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 947, 950.] 3. SAME-REVIEW-APPEAL FROM Judgment BY CONFESSION. Code Pub. Gen. Laws, art. 16, § 143, provides that a defendant against whom a bill has been taken pro confesso may appear before final decree and file his answer, and such proceedings shall be had as might have been had in case the answer had been filed before the passage of the decree. Section 140 gives the court power to require that the allegations of a bill taken pro confesso be supported by proof. Held, that where the defendant appeared, demurred, and pleaded, and testimony was taken, he was entitled to have the action of the court on the demurrer and pleas reviewed as well as the de cree. [Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error, § 3464.] 4. PLEADING-PLEAS-AFFIDAVIT OF TRUTH. Under the express provisions of Code Pub. Gen. Laws, art. 16, § 149, no plea or demurrer will be allowed to be filed, unless supported by affidavit that it is true in point of fact. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, § 861.] 5. SAME AMENDED AND SUPPLEMENTAL PLEADINGS-LEAVE OF COURT TO AMEND. Where a party in default was granted leave "to appear and answer the allegations," and filed an answer to which exceptions were sustained, and he was granted leave to file another answer, he cannot, in place of an answer, file a demurrer or plea without obtaining leave for that purpose. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 575, 832, 833.] 6. PARTIES-PLAINTIFFS-INTEREST. Purchasers at a trustee's sale have no such interest in the properties before the sales are ratified as to give them the right to apply to a court of equity to correct the title to the property sold them by the trustee. 7. SAME. A party who had held a mortgage on property, and had assigned it before proceedings were commenced to correct the title to the property, has no interest therein that would entitle him to appear as a plaintiff in the cause. Appeal from Circuit Court, Wicomico County, in Equity; Henry Lloyd, Judge. Bill by James C. Derickson and others against John W. and H. Gale Turpin. From a decree for plaintiffs, defendants appeal. Decree reversed, and appeal dismissed. Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. S. R. Douglass and Robt. P. Graham, for appellants. F. Leonard Wailes, for appellees. BOYD, J. In 1894 E. Stanley Toadvin, trustee, reported to the circuit court for Wicomico county the sale of a farm in that county to John W. Turpin and H. Gale Tur pin, which was duly ratified by the court. On September 20, 1895, he made a deed to John W. Turpin for said farm, in which he recited that the sale had been made to him, and that the purchase money had been fully paid. On August 28, 1900, Mr. Turpin made a deed of trust to Alonzo L. Miles, by which he conveyed all his property for the benefit of his creditors. Mr. Miles sold part of that farm to Messrs. L. E. and J. D. Williams, and the rest to Messrs. W. K. Leatherbury and D. J. Elliott. John W. Turpin gave a mortgage on the farm to Jas. C. Derickson for $1,500, the proceeds of which were used in part payment of the purchase money paid Mr. Toadvin. This bill was filed by Mr. Derickson and the four purchasers above named against the two Turpins, E. S. Toadvin, trustee, and Alonzo L. Miles, trustee, in which they prayed: (1) That the order of ratification of the sale made by Toadvin to the Turpins be set aside and reformed, so that John W. Turpin be shown to be the sole purchaser; (2) that the sales of Alonzo L. Miles, trustee, to the four purchasers, be ratified and confirmed; (3) that he be ordered to convey the lands to them free, clear, and discharged of any claim of the Turpins; and (4) for general relief. John W. Turpin and H. Gale Turpin filed separate answers to the bill. Exceptions were filed and sustained to each of the answers, but leave was granted to them to file sufficient answers by January 19, 1905. John W. Turpin filed another answer and H. Gale Turpin filed a demurrer to the whole bill, excepting as to a part of the fifth paragraph, to which he filed a plea, and a plea to the whole bill, in which he alleged that the case was res adjudicata. The plaintiffs filed objections to the demurrer and pleas of H. Gale Turpin being allowed and a general replication to the answer of John W. Turpin. The court afterwards passed an interlocutory decree against H. Gale Turpin, and granted the plaintiffs leave to take testimony. The trustees each answered, and testimony was taken. The docket entries show that exceptions of John W. and H. Gale Turpin were filed to the testimony, but they are not in the record. The court passed a decree in accordance with the first and second prayers of the bill, and from that decree John W. and H. Gale Turpin appealed. mands against him, the trustee shall pay the surplus over to him and reconvey the property which may remain. John W. may therefore be interested in several ways. In the first place, it is not shown by the record that it was necessary to sell all of the farm, if it be decided that he owns the whole of it. His answer alleges that Gale has paid and satisfied the debt due to James C. Derickson, who assigned his mortgage to him. If that be true, he will be subjected to unnecessary costs and expenses by a sale of the whole farm, if Gale does not require it, yet this decree not only provides for the reformation of the report of sale, by Toadvin to John W., but it ratifies and confirms the sales made by Miles. But, independent of that, the bill specifically charges John W. with fraud and made him a party defendant. He filed an answer denying most of the material allegations of the bill, and now, when the decree is against his contention, and in favor of the plaintiffs, it does not come with very good grace from the plaintiffs to insist that his appeal should be dismissed, because the decree benefited, and did not injure, him, although the bill shows him to be adverse to the contention of the plaintiffs. The motion as to him. must be overruled. The ground for the motion to dismiss the appeal of H. Gale is that there was a decree pro confesso against him, and hence it is contended he cannot appeal. As both sides seem to treat the interlocutory decree passed in this case as a decree pro confesso against Gale, we will not now stop to determine whether it is technically such. It simply decreed "that the plaintiff is entitled to relief in the premises as to the said H. Gale Turpin," and gave the plaintiffs leave to take testimony to sustain the allegations of the bill; but, whether or not that should be regarded as taking the bill as confessed, we are of the opinion that the motion must be overruled as to Gale. There seems to have been some apparent conflict between the early decisions in this state. In Ringgold's Case, 1 Bland, 12, the chancellor, in discussing the right of appeal, said: "Nor can any appeal be made generally available from a decree by default, * or, as it would seem, from a decree taking the bill pro confesso." See, also, page 19 of that volume, where the chancellor further considered the question, where, however, he added: "But this is a matter which yet remains to be carefully considered and finally determined by the proper tribunal." In Chesapeake Bank v. McClellan, 1 Md. Ch. 329, it was held that "an appeal will lie from every decision which settles a question of right between the parties, no matter whether the decision was adverse, or by consent, or default," although in Gable v. Williams, 59 Md. 46, it was held that an appeal would not lie from a decree by consent. In Lippy v. Masonheimer, 9 Md. 310, it was held that "a defendant, in an The appellees have made a motion to dismiss the appeal. It is contended that John W. Turpin has no right of appeal because (a) his trustee, Mr. Miles, is in privity with him, holding his title and admitted in his answer the allegations of the bill, and proved their truth, as a witness, and (b) because the decree does not injure him, but enlarges his estate; therefore, if there was any error, it was not harmful but beneficial to him. If John W. Turpin was injuriously affected by the decree, the reason first mentioned (a) would not necessarily preclude him from appealing. The deed of trust not only recites that he claims to be able to pay his debts in full, but cannot without a sale of part of his property, but it expressly provides that, after payment of all the debts, claims, and de- | equity case, has the right of appeal, notwith |
