1877. March Utterb'k's V. Cooper. out submitting to some extortion, he voluntarily agreed Term. to shoulder the loss between the 70 per cent. which he allowed for the stock, and the 55 per cent. represented adm'r as its market value. This respondent did not dream however that he was duped so egregiously as he was, until, upon trial, he ascertained that the highest price he could obtain in the market for said stock was 26 per cent., and at this price he was compelled to sell” &c. "It will thus appear that this respondent only in fact received (either in money or value,) the sums of $4,980, $2,236, in all $7,216; and that this was all which the plaintiff gave for this respondent's note of $11,000; and this respondent, insisting that the said transaction is not only tainted with fraud, but also with usury, relies as fully upon both said grounds of defence as if fully and specially pleaded." "This respondent admits, as stated in said bill, that at the time of the pendency of negotiations of said loan, his real estate was encumbered by a deed of trust executed by him to John P. Phillips, to secure six several bonds executed by him to Armistead Utterback, only three of which were due, the rest having been discharged.” "His real estate was also encumbered by several judgments for a large amount, and these incumbrances this respondent was required to remove. With this view this respondent did consult his counsel named in said bill, and under the advice of said counsel proceeded as follows: With regard to the judgments, he made arrangements with the creditors that the amount of their respective judgments should be deposited to their credit in a Baltimore bank, and that when this was done the judgments should be considered as discharged. This plan was adopted, and the judgments satisfied out of the $4,980 aforesaid. With regard to the deed of trust, this respondent supposed that, as a 1877. March Term. Utterb'k's V. debtor, he had a right to pay the debt he owed his father's estate, and being the administrator of that estate, he could pay no one but himself, and could pay himself as administrator only by giving the estate adm'r credit in his administration account. He accordingly Cooper. laid his papers before the commissioner, as stated in said bill, and directed the commissioner to charge him as administrator, with the amount of said three outstanding bonds in an account to be settled by said commissioner." "This respondent then believed, and now believes, that when he laid his accounts before the commissioner for settlement, directing himself to be charged as administrator of the estate of A. Utterback, deceased, with the debt he owed as aforesaid, he was doing what he had the right to do, and that the effect thereof was to discharge the lien of the deed of trust given to secure said debt; and if a different result has followed, it has not been through the agency or by the direction of his said counsel, but in consequence of the loss aforesaid, and the consequent defeat of his plans and purposes." Respondent also made a statement in regard to the receipts for $1,000 each, given to him by three of the distributees, but it is unnecessary to set out the same here. Notice having been given by the plaintiff of a motion for a receiver in the case, and sundry depositions taken and filed in reference thereto, a decree was accordingly made for such an appointment on the 24th of April 1868, and the said C. H. Utterback was injoined from committing waste of the said land. Many depositions were taken in behalf of the plaintiff, and were filed in September 1868; all of them were taken in Baltimore, and of persons residing there, except that of commissioner Pugh, which was taken in Fauquier county, where he resided. Among Utterb'k's V. Cooper. 1877. the persons examined as witnesses in behalf of the March Term. plaintiff were, H. M. Willis, the person who as agent for the defendant, C. H. Utterback, proposed and noadm'r gotiated the loan and purchase aforesaid; James M. Rasin, who, as said plaintiff's agent, went to Fauquier to examine the land proposed to be conveyed and report upon its value; R. W. L. Rasin, trustee in the deed executed by C. H. Utterback to secure the said debt to E. K. Cooper; the said E. K. Cooper himself; Charles W. Ridgely, the counsel of said Cooper, to whom was referred the question of title to the property proposed to be conveyed for the security of the debt, and who, as counsel and agent of the plaintiff, carried his arrangement aforesaid with C. H. Utterback into effect; and S. Teakle Wallis, who, as a legal expert, testified as to the law of Maryland on the subject of usury. Only one person was examined as a witness in behalf of the defendants, and that was the defendant C. H. Utterback himself. It is unnecessary, at least for the present, to state any part of the testimony of any of the witnesses or of the substance thereof; but so much of the same as may be necessary to be noticed in this opinion will be noticed therein hereafter. On the 9th of September 1868, Robert E. and A. W. Utterback, two of the sureties of C. H. as administrator of Armistead Utterback, and also two of the children and distributees at law of said Armistead, filed their answers; and on the 17th day of the same month Lewis Shumate, the other surety of the said administrator, filed his answer. On the 18th of September 1868 the cause came on to be heard; when the court, without deciding any other matters involved in the cause, decreed that an issue be made up and tried on the common law side of the court, before a jury to be impannelled therefor, to ascertain: First, whether the consideration of the note of $11,000 aforesaid was a loan from the said Cooper to said Utterback, and, if so, whether said loan was upon a consideration usurious in law; and, secondly, whether, if the jury find that the plaintiff sold to the said Charles H. Utterback, on the 5th day of July 1866, eighty-six shares of Navassa Phosphate stock, and that the purchase money of the said stock entered into and formed a part of the consideration of said note of $11,000, there were any false representations or fraudulent devices upon the part of the said plaintiff, by means whereof the said C. H. Utterback was induced to become the purchaser of said stock, and, if so, to what extent the said C. H. Utterback hath suffered damages by reason of said false representations or fraudulent devices; in which issues the said Utterback shall have the right to open and conclude. On the 1st of October 1870 another decree was made in the cause appointing commissioners to sell the land in controversy. On the 10th of November 1870 a copy of the verdict rendered by the jury upon the issue ordered in the cause was filed, from which it appeared that the said verdict was as follows: "We, the jury, find, first, that the consideration of the note for $11,000, executed by the defendant Charles H. Utterback to E. K. Cooper, the plaintiff, dated 5th July 1866, and payable two years after date, and secured by deed of trust from said Utterback to R. W. L. Rasin, of date of 5th July 1866, was a loan of money and sale of stock by said Cooper to said Utterback, and that said loan was upon a consideration not usurious in law; we further find, secondly, that there was no false representations or fraudulent device on 1877. March Term. Utterb'k's adm'r V. Cooper. March Utterb'k's 1877 the part of the said E. K. Cooper, the said plaintiff, Term. by means whereof the said Charles H. Utterback was induced to become the purchaser of said stock called. adm'r Navassa Phosphate stock; and that said Charles H. Utterback has suffered no damage by reason of any representation or device of said E. K. Cooper. J. W. James." V. Cooper. And it further appeared that the court, being satisfied with said verdict, ordered the same to be certified to the circuit court of Fauquier county sitting in chancery. And it further appeared that afterwards, during the same term at which said verdict was rendered, a motion was made by the defendants to set it aside for misconduct of the jury; which motion was overruled; to which ruling of the court a bill of exceptions was tendered by the defendants and made a part of the record by the court. On the 23d of September 1871 the cause came on to be heard, on the papers formerly read and the receiver's report returned on the 2d of March 1870 and the verdict of the jury aforesaid. "On consideration whereof, and for reasons contained in a written opinion of the court, then filed and ordered to be made a part of the record in the cause, the court, being of opinion, in accordance with the verdict aforesaid, that there was no fraud or usury in the contract between the plaintiff and the defendant Charles H. Utterback, and that under the circumstances shown by the evidence in the cause the debt due by Charles H. Utterback to Armistead Utterback in the lifetime of the latter, and secured by the deed of trust of the 2d February 1859, became assets in the hands of the said Charles II. Utterback upon his qualification as the administrator of the said Armistead Utterback deceased |