Lee v. Early ex rel. Neale, Harris & Co.

Bartol, C. J., delivered the opinion of the Court. The writs of scire facias in these cases were issued at the instance of the appellees, and were made known to the appellant as terre-tenant of John T. Eversfield. By agreement, the two cases were tried together, and as they present the same questions, we shall speak of them as one case. The defences relied on by the appellant are, first, that she is not terre-tenant of Eversfield, the defendant in the judgment, and secondly, that the judgment had been satisfied. The facts material to be stated, are as follow»: At October Term 1853, the appellee, Early, obtained judgment against John T. Eversfield for $538.00, and costs. On appeal, the judgment was affirmed by the Court of Appeals at December Term 1855, and was entered for the use of Neale, Harris & Co., on the 17th day of April 1860. On the 17th day of May 1860, a scire facias was issued from the Court of Appeals, and a fiat obtained against John T. Eversfield, at April Term 1861. On the 18th day of October 1872, this writ of scire facias was issued, and made known to the appellant, seeking to charge certain lands, held by her, of which Eversfield was seized at the time the judgment was recovered against him. The appellant claims title to the lands, not as alienee of Eversfield, after the judgment, but claims to hold the same by adverse title, not subject to the lien of the judgment. Her title was derived in this way: Eversfield had executed three mortgages of the lands, as follows: One to M. Carroll and C. C. Magruder, dated April 22nd 1853, for $1400, (this was before the original judgment.) One dated January éih 1854, to C. C. Magruder for $1200, and another to the same person, dated March 14th 1854, for $5600. All these mortgages were assigned to William Worthington on the 26th day of January 1861, and by him were assigned to George Forbes, on the 30th day of — 90 — January 1861, who filed a hill in equity on the 3rd day of December 1861, against Eversfield the mortgagor, praying for a sale of the lands to satisfy the three mortgages. Afterwards, and before decree, he filed an amended hill, setting forth that since the filing of the original bill, Eversfield had sold a part of the mortgaged premises to O. O. Magruder, who had paid a part of the purchase money to Eversfield, that there remained a balance thereof, due from Magruder, of $1520, with interest from December 9th 1862, which he was desirous to pay to the complainant, and praying to have the sale to him confirmed, that he be directed to pay the same to the complainant, and that the trustees to be appointed in the cause,. he directed to execute a deed of conveyance. to Magruder of the parcel of land so purchased by him. An answer was filed by Magruder, admitting the facts, as stated in the amended bill, and praying that a decree be passed as prayed. Thereupon, the following statement was filed in the cause. Statement. GEORE FORBES vs. JOHN T. EVERSFIELD. In the Circuit Court for Prince George’s County, as a Court of Equity. This amount were upon mortgage debt with interest from date to 9th Dec., 1862..... $12,820 96 By this sum to be paid by C. O. Magruder, for the land purchased by him............. 1,520 00 $11,300 96 Interest on balance, due 1st August, 1863... 435 04 $11,736 00 — 91 — Tlie above amount' to be paid in the following instalments: On 1st August, 1863 ........ $2934 00 On 1st August, 1864 ............... 2934 00 On 1st August, 1865 ............... 2934 00 On 1st August, 1866 ............... 2934 00 ---.- $11,736 00 This — to certify, that the above is the statement upon which the decree in this cause is predicated. Daniel Clarke, Attorney for Complainant. Samuel H. Berry, Solicitor for Defendant. On the 19th day of February 1863, a decree was passed by consent, directing a deed to be made to Magruder, as prayed, upon his payment of $1520, balance of purchase money due, and decreeing that the residue of the mortgaged premises be sold, in default of payment by the mortgagor of the several sums, or instalments of the mortgage debts, at the times mentioned in the foregoing statement. The decree was entered for the use of the appellant and W. John Belt, administrators of Benjamin Lee. Mr. Clarke, the trustee, made sale of the residue of the mortgaged premises on the 30th day of November 1869, and the sale was finally ratified on the 21st day of January 1870. The purchaser not complying, a resale was ordered and the land was resold on the 30th day of September 1871, and this sale was finally ratified on the 24th day of November 1871. The purchaser not complying, another order for resale was passed, and on the 23rd day of February 1872, the property was sold to the appellant, and on the 2nd day of May 1872, this sale was finally ratified, and the cause referred to the auditor, who stated an — 92 — account, whereby after deducting costs, commissions, &c., the balance of purchase money in the hands of the trustee was awarded to the administrators of Benjamin Lee, who were the assignees of the decree passed on the 19th day of February 1863 ; leaving a balance of $2186.26 due upon the decree, still unpaid. The report of the auditor was finally ratified, on the 6th day of December 1872. Accompanying the report-was a statement of the amount of the decree, with interest, deducting therefrom the various sums, received thereon from the proceeds of grain and tobacco, in successive years, from July 1868, till August 1871, inclusive. These sums were received under an agreement made by John T. Eversfield, with the administrators of Dr. Benjamin Lee, on the 24th day of March 1868 ; whereby it was agreed that the proceeds of said crops should he paid over to them “ in part payment of a mortgage on said lands which was assigned to them by a certain George Forbes, for which said administrators shall receipt to Samuel H. Berry and Daniel Clarke, trustees for the sale of said lands.” This statement made by the auditor was also ratified by the -Court, on the 6th day of December 1872. The appellant contends that having purchased under a decree, passed to enforce the payment of a mortgage prior in date to the judgment, she acquired a superior title, adverse to the judgment debtor, and free from the lien of the judgment. There is no doubt of the correctness of the general proposition, that the title of a purchaser under a decree to enforce the payment of a mortgage debt, is not impaired or affected by the lien of a judgment rendered against the mortgagor subsequent to the mortgage. This proposition is not denied by the appellees, hut they seek to avoid its effect in the present case upon the ground that the payment of $1520, made by Magruder on the 9th day of December 1862, and the moneys received from the — 93 — crops, should be first applied to the payment of the first, or eldest mortgage debt; and if so applied that the same had been satisfied and the lien thereof extinguished, before the sale to Berry on the 30th day of November 1869 ; and they maintain as a consequence, that the sale to Berry, and the subsequent sale to the appellant, were made subject to the lien of the judgment, which was prior in date to the second and third mortgages. Have the appellees the right to insist upon such application of payments? The rule is well settled that “the debtor has the right, if he so elects, to make the application of payments in the first instance, and if he omits so to do, the creditor may make the appropriation ; but if neither make any appropriation, the law appropriates the payment to the earliest and generally the most onerous debt,” Neidig vs. Whiteford, 29 Md., 185. In this case it appears from the evidence furnished by the proceedings in the Chancery case, to which we have referred, that the payment of $1520, made by Magrudcr was appropriated by the debtor, Eversfield, in part satisfaction of the aggregate debt due upon the three mortgages. This is shown by the statement, which formed the basis of the decree, and which was signed by Eversfield’s solicitor. There can be no doubt, or question of the right of Eversfield, the mortgagor, to make that application. And in the same manner, under the agreement of March 24th 1868, the proceeds of the crops of grain and tobacco, were properly applied by the auditor in part satisfaction of the money due upon the decree. Such is our construction of the agreement, which though it provides that the proceeds of the crops shall be applied “in part payment of a mortgage on said lands,” goes on to state “which was assigned to them by a certain George Forbes.” Now this cannot be construed as referring to the first mortgage, or any other of the several mortgages ; but to the decree; for it was the decree which had been assigned, not the — 94 — mortgage; besides tbe payments were to be made to tbe trustees, appointed under tbe decree. (Decided. 1st March, 1876.) It follows from what has been said, that the Circuit Court erred in granting the second prayer of the appellees, whereby it was ruled that the money paid by Magruder, and the money received from the proceeds of the crops should be first applied to the payment of the eldest mortgage. Whereas they had been applied by the mortgagor himself to the aggregate debt and interest due upon the three mortgages, and to the decree recovered thereon. It may be added that the appropriation of the proceeds of the crops, in part satisfaction of the decree, had been sanctioned and ratified by the Court of Chancery ; and cannot be disturbed, or impeached by the appellees, in this collateral way. It follows also that it was error to refuse the appellant’s fifth prayer, which asserts the proposition, that the effect of the purchase made by tbe appellant, under the decree and the ratification thereof, was to' vest in her a title, which related back to the date of the first mortgage, free from the lien of the judgment upon which the scire facias was issued ; and that the lands so held by ber are not liable for the payment of the judgment. Or in other words that she is not a terre-tenant within the meaning of the law. Polk vs. Pendleton, 31 Md., 118. As the decision of this point is conclusive of the case, it is unnecessary to consider the question raised by the other prayers of the appellant, as to whether the facts therein referred to, amounted in law to the payment and satisfaction of the judgment. Judgment reversed.