Perkins v. Emory

Bartol, C. J., delivered the opinion of the Court. By the last will of the late William Emory the husband of the appellee, the three pieces of property devised to the appellant Mrs. Perkins, who was the testator’s daughter, were charged with the payment of $125 per annum to Mrs. Emory. The annuitant not having been a party to the deed from Perkins and wife to William R. Realey, or to the mortgage from Realey to Carroll, her rights were in no manner affected thereby; but she was entitled notwithstanding those transactions, to enforce her charge against any or all of the property devised to Mrs. Perkins. It appears however from the proceedings that she has agreed, the payment of the arrears of her annuity, and of amounts payable to her in the future, may be enforced against the several parcels of property in their just and equitable proportions, in such manner as may be conformable to the equitable rights of Perkins and wife and Carroll, growing out of the transactions between those parties. This we understand to be the substance and effect of the agreement “ Exhibit B,” contained in the record. If the deed from Perkins and wife to Realey stood alone, we should be inclined to construe it as intending to subject [36] the land thereby conveyed, to the payment of the whole of Mrs. Emory’s annuity, to the exoneration of the Chester-town and Centreville property; and as a consequence the mortgage of Carroll would he subject to the same burden. But conceding that such would be the true construction of the deed, it is very clear that this arrangement was modified by the subsequent transactions between the parties. It appears that on the 1st day of February, 1861, a few days after the deed, Realey executed a mortgage of the land in favor of Mrs. Perkins, to secure the payment of $1000, and interest, being for the purchase money of the land. Afterwards, on the 9th day of November 1861, Perkins and wife having released the mortgage of Realey, the latter executed a mortgage of the same land to David Carroll for $5000, which as therein recited, it was agreed should he a first mortgage of the land; and on the same day Realey executed a second mortgage of the same property in favor of Mrs. Perkins, to secure the payment of $2084, the balance of purchase money due by him. In the last-mentioned mortgage it is recited: “ whereas Elizabeth Emory, widow of William Emory, late of Queen Anne’s County aforesaid, deceased, has an annual rent-charge upon the land and premises above described, of the sum of one hundred and twenty-five dollars; it is further provided that the said William B. Realey may at his option, defer the payment of the said sum of $2084, for and during the natural life of the said Elizabeth Emory, unless the rent-charge shall be sooner released; the said William B. Realey paying the interest thereof to the said Elizabeth Emory, and charging the same against any interest due the said Margaret R. Perkins, anything herein contained to the contrary notwithstanding. But it is expressly hereby provided, that if the said Elizabeth Emory shall at any time release the rent-charge aforesaid, that then the said last mentioned proviso shall be void and of no force or virtue in law.” [37] It is obvious tbat tbe intent of the parties in these transactions, as far as they were able to do so, was to give to Carroll a first mortgage upon the property free and clear from the charge of Mrs. Emory’s annuity, and to transfer the charge from the land, to the balance of purchase money due from Realey. So far as the claim of Mrs. Emory is concerned, her right to subject the property to the charge of her annuity was not impaired or affected^ she being no party to the transaction. But as between Mrs. Perkins and Carroll the mortgagee, there is no equitable ground upon which the former can claim that the whole burden of the annuity shall rest upon the farm; and that her property in Centreville shall be exonerated. As between Mrs. Perkins and Carroll, his mortgage is entitled to he exempted from the charge of the annuity, so far as the property of Mrs. Perkins in Centreville may suffice for that purpose. It appears that Carroll held also a mortgage of Mrs. Perkins’ property in Chestertown, as a security for the $5000, due him, from which he received the sum of $1528.99. It was proper therefore for the auditor, under the agreement ec Exhibit B,” to charge the proceeds of the farm with the proportion of the annuity, chargeable upon the Chestertown property, before allowing for the payment of Carroll’s mortgage. To this part of the auditor’s account of April 23rd 1879, ratified by the Circuit Court, the appellant makes no objection. We think there was no error in the decision of the Circuit Court, or in the principles upon which the auditor's account of April 23rd was stated — whereby the sum payable on account of the annuity in arrear, was apportioned ratably between the three parcels of property devised to Mrs. Perkins; — charging upon the proceeds of the land sold the proportion chargeable thereon, and on the Chestertown property, and leaving the property in Centreville still liable for its ratable proportion, according to the ageement of the parties. [38] (Decided 9th December, 1880.) The annuity heing given to Mrs. Emory during her life, she is entitled to have the same secured to her, by setting apart a sufficient sum to be invested, so as to yield in accruing interest the amount of her annuity. Buchanan vs. Deshon, 1 H. & G., 280, 298. There is nothing in the agreement “Exhibit B,” by which she has waived this right, or consented to receive in lieu of her annuity a gross sum regulated according to her age and health, in accordance with the chancery rule which prevails in cases of dower. On this question we concur in the decision of the Circuit Court, and the auditor’s report stated in conformity thereto is in this respect correct. We find however that in ascertaining the proportion of the arrears of the annuity chargeable on the Ohestertown property and the farm, the auditor has committed an error. In the audit of April 23rd, he states this to be $810.61. We find by a careful calculation, that the correct amount is 1118, — leaving $311.84 as the proportion chargeable on the Chestertown property. But the order of the Circuit Court cannot be reversed on account of this error; it not having been made a matter of exception to the auditor’s statement. It is proper however that the error should be corrected; and to that end, as also to enable the appellee to enforce her claim against the property of Mrs. Perkins in Centreville, the cause will be remanded to the Circuit Court, under Article 5, section 28, of Code. In such case no disposition of the costs is made in this Court, but the same is left to the order and direction of the Circuit Court. Doub vs. Mason, 5 Md., 613, (Appendix.) Cause remanded.