Sumwalt v. Tucker

Grason, J., delivered the opinion of the Court. The facts of this case, as found in the record, are that Wilkinson obtained a decree in the Circuit Court for St. Mary’s county, for the sale of certain real estate which had been mortgaged to him by Tucker, and that Downs was appointed trustee, who sold the property, and the sale was reported to, and ratified by the Court; and the auditor’s account, after allowing expenses, &c., distributed the entire balance of the proceeds of sale to the mortgagee, that sum being insufficient to pay the whole of the mortgage debt, and still leaving a balance due the mortgagee. The appellant having obtained a judgment against the appellees Tucker and Wilkinson, after the dates of the two mortgages to Wilkinson, obtained an execution upon it after the decree for the sale of the property had been passed, and it was levied upon the land so decreed to be sold, but the sheriff forbore selling under the execution, in consideration of a promise made by [91] the appellees that they would pay him the amount of the judgment at the next succeeding term of the Court. The money not having been so paid, a venditioni exponas was issued, to which the sheriff made return that the property had been sold at trustee’s sale. The appellant then filed his petition in the'equity case of Wilkinson vs. Tucker, setting forth the above facts verified by the affidavit of the sheriff, in which it was also shown that the sheriff could find no property of the appellees, besides that upon which he had made the levy, out of which he could make the money. The appellant at the same time also filed exceptions to the auditor’s report and account. The Court below dismissed the petition and overruled the exceptions to the auditor’s account, and from that order this appeal is taken; and the question to be determined is, whether a judgment creditor can come into a case pending in equity and have a fund, which has been audited to the mortgagee, who is the defendant in the judgment, applied in satisfaction of his judgment. We have no difficulty in deciding this question. Although the lien of the judgment attached upon the equity of redemption of the mortgagor and any fund remaining, after the payment of the mortgagee’s debt, might have been applied to the payment of the judgment of the appellant, yet in this case no surplus remained, and therefore the equity of redemption, upon which the judgment was a lien, proved to be of no value. The judgment was not a lien upon the interest or estate of the mortgagee in .the mortgaged premises. If it was, then the payment of the mortgage debt by the mortgagor, or an assignment of the mortgage by the mortgagee, could not defeat the lien of an older judgment, upon the mortgagee’s interest, in the land. A mortgage is regarded in equity as a security for the payment of money, and it is not liable to execution and sale. 4 Kent’s Comm., 161, marg., and the cases there cited. The case of Brawner vs. Watkins, et al., 28 Md., 217, cited in argument by the counsel of the appellant as authority for a judgment creditor coming into an equity case by petition, [92] is not to the point. In that case a bill was filed to foreclose a mortgage prior in date to the judgment of Watlcins, and others, as well as a creditor’s bill for the sale of the real estate of Shaclcleford, whose personal estate was insufficient to pay his debts, and the cases were consolidated and a decree passed,' and notice was given to creditors to come in, but Watlcins did not come in, and it was held by the Court that he was bound to seek payment of his judgment out of the proceeds of sale, and that he could not enforce his judgment against the land in the possession of Brawner, the purchaser at the trustee’s sale. In the case now before us, the appellant had no right to come into the case pending between the appellees and have his judgment paid out of the fund audited to Wilkinson, the mortgagee and complainant in that case, but ought to have pursued his remedy at law, by attachment, against that fund in the hands of Downs, the trustee, his right to such remedy being fully established by the cases of Cockey vs. Leister, 12 Md., 124; McPherson vs. Snowden, 19 Md., 233, and Groome vs. Lewis, 23 Md., 150. Having no standing in a Court of Equity, he consequently had no right to file exceptions to the auditor’s account, and they were properly overruled, and the order of the Court below overruling the exceptions and dismissing the petition of the appellant must be affirmed. (Decided 16th February, 1871.) Order affirmed and cause remanded. Stewart, J., dissented.