INSOLVENTS 2033

An. Code, 1924, sec. 24. 1912, sec. 24. 1904, sec. 24. 1888, sec. 24. 1880, ch. 172, sec. 25.

1896, ch. 446.

26. If any deed, conveyance, assignment, gift, transfer or delivery be
made of any goods, chattels, money, choses in action, lands, tenements or
other property, or lien created thereon when the grantor or person creating
the same is insolvent or in contemplation of insolvency, the same shall be
prima facie intended to hinder, delay and defraud the creditors of the per-
son by whom the same is made, and the burden of proof shall rest upon him
and the grantee to explain the same and show bona fides thereof; provided
the creditors of the grantor in such deeds, conveyances or assignments shall
avail themselves of the provisions of this article.

This section prescribes a new rule of evidence which is applicable as well to deeds,
conveyances, gifts and transfers relied on to have a debtor adjudged insolvent, as to
same instruments and acts when attacked by insolvent trustee. The rule is applicable
alike in insolvent court and in court of law and equity. Vogler v. Rosenthal, 85 Md. 46.

This section was aimed at conveyances which stripped an insolvent of any part of
his property, at same time placing it beyond reach of creditors, and hence has no
application to a deed of trust for benefit of creditors made bona fide and giving no
preferences. Pfaff v. Prag, 79 Md. 370. (See sec. 36).

This section applied. Smith v. Pattison, 84 Md. 344.

Prior to the adoption of this section the law was to the contrary. Syester v. Brewer,
27 Md. 316; Maennel v. Murdock, 13 Md. 178.

Cited but not construed in Applegarth v. Wagner, 86 Md. 474; Brown v. Smart, 69
Md. 332 (affirmed in 145 U. S. 454).

An. Code, 1924, sec. 25. 1912, sec. 25. 1904, sec. 25. 1888, sec. 25. 1880, ch. 172, sec. 26.

1888, ch. 275. 1892, ch. 658.

27. If any real estate, chattel, real or personal property of the insolvent
shall have been decreed to be sold by virtue of any decree of any court of
equity for the enforcement of a mortgage, or if there be a power of sale,
or a consent to a decree for a sale contained in any mortgage, or bill of sale
of real estate, chattels, real or personal property of the insolvent, as the case
may be, the filing of the petition in insolvency, either by or against the
insolvent, as hereinbefore provided, and the subsequent proceedings in
insolvency on such petition shall not disturb, defeat or impair the right of
the mortgagee to apply for a decree, or of the trustee named in the decree,
or the mortgagee, or bargainee, or his assignee, or person authorized in the
mortgage or bill of sale to make sale to proceed with such sale, or to execute
the power of sale contained in said decree, mortgage, or bill of sale, unless
the right, or power or consent to decree shall be waived in writing by the
mortgagee or his proper representatives, and in all such cases, in the ab-
sence of waive of right by the mortgagee or his proper representatives, as
hereinbefore provided, the trustee in insolvency shall only be authorized
to sell the equity of redemption of the insolvent in all such property by
decree, mortgage or bill of sale as aforesaid.

This section is not retrospective, and has no application to proceedings commenced
before it was passed. Gable v. Scott, 56 Md. 182; Mackubin v. Boardman, 54 Md. 384.

Prior to the adoption of this section a non-resident mortgagee was held to have a
right of sale paramount to that of the insolvent trustee. Ensor v. Lewis, 54 Md. 397.

Prior to the adoption of this section, the law (subject to certain conditions), was
to contrary. Ensor v. Keech, 64 Md. 381; Mackubin v. Boardman, 54 Md. 384;
Zeigler v. King, 9 Md. 332; Bank of Westminster v. Whyte, 3 Md. Ch. 512; Alexander
v. Ghiselin, 5 Gill, 178. See also Gable v. Scott, 56 Md. 184.

Cited but not construed in Crocker v. Hopps, 78 Md. 265 (involving a chattel
mortgage); Buschman v. Hanna, 72 Md. 4.

An. Code, 1924, sec. 26. 1912, sec. 26. 1904, sec. 26. 1888, sec. 26. 1880, ch. 172, sec. 27.

28. It shall be the duty of the several clerks of the courts of this State,
wherein any proceedings in insolvency may be pending under any of the