Ahern v. White

• Court: Maryland Supreme Court
• Writing for the Court: MILLER, J., delivered the opinion of the Court.
• Citation: Ahern v. White, 39 Md. 409 (Md. 1874)
• Decision Date: 05 February 1874
• Parties: JOHN AHERN v. MILES WHITE.

39 Md. 409

JOHN AHERN v. MILES WHITE.

Court of Appeals of Maryland

February 5, 1874

APPEAL from the Superior Court of Baltimore City.

This was an action of ejectment. The case is stated in the opinion of the Court. The first bill of exception taken by the appellant, the defendant below, after setting out the deed in fee to White, the proof of White's possession under it the lease by White to Ijams, and the mortgage from Ijams to him, all of which was offered in evidence by the plaintiff White, concluded as follows: "And [the plaintiff] then proved, that the two papers were executed on the same day and together left for record at the same time, to wit, at 3 1/2 o'clock, on the 4th April, 1871, in the Record Office of the Clerk of the Superior Court, and the plaintiff himself, being then examined as a witness, the question was asked of him by his counsel, 'Were those two papers the embodiment in writing, of one transaction?' And the witness answered, 'they were,' but to the admissibility of this question and the answer to it in evidence, the defendant excepted."

The second and third bills of exception are sufficiently set forth in the opinion of the Court.

The cause was argued before BARTOL, C.J., STEWART, GRASON, MILLER and ROBINSON, J.

Thos. R. Clendenin and Orville Horwitz, for the appellant.

The appellee has proved no title and has no right to recover because in ejectment the plaintiff must recover, if at all, on the strength of his own title, and must show title by possession for twenty years in himself, or those under whom he claims; as against the appellant he must show that he has the legal title and a right of possession.

In this case, there is no such evidence. The title of the appellee began in 1857, and even the alleged title of his grantor, as to which there is no proof, only began in 1856. Mitchell's Lessee vs. Mitchell, 1 Md., 52; Hammond's Lessee vs. Inloes, 4 Md., 174.

Assuming that the appellee had proven a prima facie title for 20 years, the appellant's title from the sheriff is paramount to that of the appellee under the equity proceedings. The judgment of 1869 in favor of Grafflin attached to, and became a lien upon the leasehold interest of Ijams. Act of 1861, ch. 70; Alex. British Stats., 550, 551, and the judgment binds the equitable as well as legal interest in property, subsequently acquired, as well as that previously owned. Hayden vs. Stewart, 1 Md. Ch. Dec., 463, 464.

The sheriff's sale assigned to Ahern, Ijams' title and interest to the property sold. The mortgage from Ijams to White, was subsequent to the judgment of Grafflin, by about two years; it was entitled to no priority over the judgment; it is not a mortgage for purchase money such as is specially exempted by Art. 64, sec. 3, of the Code, from operation of previous judgments against the mortgagor, and there is no other provision of the law of Maryland, which gives a mortgage a preference over a judgment prior in date or previously obtained.

Even had Ijams wished to give White a lien in preference to the judgment, (about which there is not the slightest evidence, nor anything appearing in either of the papers,) it was not in his power to do so. Martin vs. Martin, 7 Md., 377; Anderson vs. Tydings, 8 Md., 442; Henderson vs. Mayhew, 2 Gill, 442.

As to the first exception to evidence, the ruling of the Court below was erroneous.

1st. Because it attempted by oral evidence to control, change and contradict a written sealed instrument--to control the interpretation, and to alter and vary the effect of the same. Henderson vs. Mayhew, 2 Gill, 409.

2d. The question was leading. 1 Starkie on Evidence, 149.

3d. The question submitted a question of law to the witness.

In order to authorize a decree under Art. 4, secs. 782 to 792, (the Codification of Act of 1833, ch. 181,) the assent in the mortgage to proceedings under that Act must be special and direct. Kenly vs. Wierman's Exr's, 18 Md., 304.

Besides, this was not a mortgage upon which a decree could have been obtained before default--it could only be asked for after default, that being a condition. The Act of 1839, ch. 9, and the Act of 1864, ch. 124, (enacted in its place,) authorize decrees ex parte after default only, in cases where like decrees could have been passed before default, and that could not under any circumstances have been done under this mortgage.

The title under the judgment of Grafflin was in any event paramount to the title to the mortgage to White. Watson vs Bane, 7 Md., 117; Neidig vs. Whiteford, 29 Md., 178; Holida vs. Shoop, 4 Md., 465.

But the doctrine on which the plaintiff chiefly relies for the priority of his mortgage over a senior judgment is that of instantaneous seisin.

That doctrine only applies to a case where the party has no beneficial interest of any sort, but is a mere conduit pipe, and where the seisin is merely transitory. But wherever the party has a seisin beneficially for his own use, if even for an instant only, then all the usual consequences and burdens follow that seisin.

This doctrine has been fully examined and passed upon in questions of dower. Co. Litt., 31 b; 1 Thomas' Coke, sec. 36; 2 Bl. Com., 131; Nash vs. Preston, Cro. Car., 190; 2 Bac. Abr., 371, note; Preston on Estates, Title Dower; Crabb's Real Prop., sec. 1172; Broughton vs. Randall, Cro. El., 503; McCauley vs. Grimes, 2 G. & J., 324; Rawlings vs. Lowndes, 34 Md., 643.

And the only exception intimated, is in reference to a mortgage for the balance of purchase money, made and delivered simultaneously. This however, is rendered unnecessary as an exception, being provided for by Act of Assembly.

Nor can a party deny the seisin of him from whom he derives his estate; he is estopped. 2 Bac. Ab., 371, note.

But this doctrine of instantaneous seisin, does not apply to an ordinary mortgage, which is but a security for a debt, and the mortgagor is seised as to every body but the mortgagee sub modo. Slaughter vs. Culpepper, 44 Geo., 319.

The mortgage here relied on, however, to give paramount title to the purchaser under it, is a mortgage not for money loaned at the time, or for a balance of purchase money, but for future adrances.

Now, it is true, that this Court has determined in the case of Wilson vs. Russell, 13 Md., 494, on the authority of a case (Gordon vs. Graham, 7 Vin. Ab.,) since overruled by the House of Lords, ( Hopkinson vs. Rolt, 9 H. of L., 514,) that a junior intervening equity, will not prevent the validity of advances made subsequent thereto, but no such rule prevails in regard to a senior judgment, of which the mortgagee is presumed to have notice at the time of making the contract.

William F. Frick, for the appellee.

The judgment creditor was not a purchaser with any right to the land, with neither jus in re, nor ad rem, and his claim must stand or fall, not by the apparent but by the real rights of the judgment debtor. Knell vs. Green Street Building Association, 34 Md., 67, and cases referred to, p. 68; Hampson vs. Edelen, 2 H. & J., 64-66; Eschbach vs. Pitts, 6 Md., 77; Farmers Bk. vs. Heighe, 3 Md., 361; Coombs vs. Jordan, 3 Bland, 298, 300.

It may, therefore, be assumed that the purchaser under the fi. fa. acquired no better title than Ijams himself could have assigned, at the time he received the lease. But the mortgage which he executed eo instanti, was given, " under a condition agreed upon prior to the making of the lease. " Therefore he took the lease, subject to a condition to execute the mortgage. The two papers formed together only one transaction; and Ijams was never by the contract, invested for one moment with a leasehold title, which he could have transferred, except subject to the mortgage.

The question is entirely analogous to that, whether the wife is dowable, in cases of instantaneous seisin by the husband; and this Court has said in Rawlings vs. Lowndes, 34 Md., 644, that the dower right is excluded "where the deed and mortgage constitute and form part of one and the same transaction."

Now we have in this case not merely the inference of its being one and the same transaction from the simultaneous execution, delivery and recording of the two instruments; but we have an express declaration and admission of the fact, from the parties, on the face of the papers themselves.

The decision of this Court in the case of Heuisler, Trustee, vs. Nickum, 38 Md., 270, is not in conflict with these views, but rather confirms them.

The defendant's second prayer, that the plaintiff was not entitled to recover, because he had not proved possession for twenty years in himself or those under whom he claimed, was properly refused. The proceedings were under the Act of 1872, ch. 346, under which the only issue between the parties was "the title to the premises and right of possession." The plaintiff proved title and actual possession in himself from 1857 until 4th of April, 1871, when Ijams acquired from the plaintiff the leasehold estate and possession, and the plaintiff still holding the fee, acquired the legal title to the leasehold estate under the mortgage. Assuming the proceedings for sale under the mortgage to be regular, the plaintiff, at the time of the institution of the suit, had acquired the absolute title by the purchase of Ijams' equity of redemption, and was entitled to possession.

The defendant claimed under Ijams. He defended himself upon the ground, that he had purchased Ijams' leasehold estate and was in possession under that title. He, therefore, did not claim adversely to, but under Ijams, the mortgagor. If the views heretofore contended for are correct, the plaintiff had, as against Ijams and all persons claiming under him, both the legal title and the right of entry or possession....