Alexander v. Hergenroeder, 86

• Citation: 215 Md. 326,138 A.2d 366
• Decision Date: 21 January 1958
• Docket Number: No. 86,86
• Parties: Raphael ALEXANDER et al. v. Marie Louise HERGENROEDER et al.
• Court: Maryland Court of Appeals

Page 326

215 Md. 326

138 A.2d 366

Raphael ALEXANDER et al. v. Marie Louise HERGENROEDER et al.

No. 86.

Court of Appeals of Maryland.

Jan. 21, 1958.

Joseph H. Colvin, Baltimore, for appellants.

Malcolm J. Coan, Baltimore (Calvert Ross Bregel and Howard C. Bregel, Baltimore, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, and HORNEY, JJ.

BRUNE, Chief Judge.

The appellants, Raphael and David Alexander, brought a suit in assumpsit in the Baltimore City Court against John Hergenroeder, Sr. and Marie Louise Hergenroeder, his wife, and against John E. Hergenroder, Jr. and Dorothy C. Hergenroeder, his wife. The case grew out of the sale by the Alexanders of an apple orchard in Hampshire County, West Virginia, and certain personal property located on the orchard premises or used in connection therewith. The Alexanders claim that the Hergenroeder wives, as well as their husbands, are liable for the unpaid balance of the purchase price; the Hergenroeders deny that the wives are liable. There were extensive pleadings, motions and hearings in the trial court. Ultimately, judgments were entered against the defendant husbands (sometimes referred to below as the 'Husbands') and in favor of the defendant wives (sometimes referred to below as the 'Wives'). The appeal is by the plaintiffs from the judgment in favor of the wives. The husbands did not appeal.

The plaintiffs' original declaration contained one count, which was based upon a real estate and chattel deed of trust (usually referred to below as the 'Mortgage'). This document was executed by all four of the defendants. It is dated June 1, 1950, was executed and acknowledged on that date by the husbands in West Virginia, was executed and acknowledged by the wives in Maryland on June 9, 1950, and was recorded in the office of the Clerk of the County Court of Hampshire County, West Virginia, on June 15, 1950. The amended declaration repeated as its first count what had been the only count in the original declaration and added a second count based upon eleven promissory notes executed by the husbands only. Ten of these are referred to in the mortgage.

The appellants alleged in their first count that they sold the orchard and the personal property above mentioned to all four of the defendants. This was flatly denied by the defendants, who say that the husbands only were the purchasers. The appellants rely upon the mortgage to establish liability on the part of the wives; the defendants asserted in their affidavits in opposition to each of the plaintiffs' motions for summary judgment that the wives joined in the mortgage solely to release their dower interests.

The case turns upon the construction of the mortgage. Among the provisions thereof which seem pertinent to this controversy are, in substance, the following: first, the recital that the 'parties of the first part [i.e., all four of the Hergenroeders] have purchased the hereinafter described real estate * * * and * * * personal property' from the Alexanders and their respective wives; second, the recital that 'the parties of the first part have executed this instrument and the negotiable notes herein described, to secure to the * * * Alexander[s] in the payment of $51,250.00 of unpaid purchase money due on the sale of the real estate and personal property hereinafter described * * * subject * * * to a prior lien' thereon (then in amount of about $18,750); third, the grant of the real and personal property to a trustee (the other party to the mortgage) 'to secure Raphael Alexander and David Alexander, * * * beneficiaries under this trust, in the payment of a certain indebtedness of * * *' $51,250, 'which said indebtedness is evidenced by ten certain negotiable promissory notes of even date herewith each for the sum of * * *' $5,125, 'made, executed and delivered by the said John Hergenroeder, Sr. and John E. Hergenroeder, Jr. to the said Raphael and David Alexander * * *'; and fourth, provisions for the payment of any net proceeds of sale of the mortgaged property remaining after payment of the indebtedness to the Alexanders 'to * * * John Hergenroeder, Sr. and John E. Hergenroeder, Jr., their heirs, personal representatives or assigns.'

There are also certain covenants by the 'parties of the first part' expressed in the mortgage, but the only express covenant to be found therein to pay any indebtedness is to pay the indebtedness secured by the prior lien. That indebtedness was paid out of the proceeds of the sale effected by the trustee and no question pertaining to it is here presented.

There is an obvious inconsistency between the recital in the mortgage that 'the parties of the first part have executed the negotiable notes herein described' and the specific statement when the notes are actually described that they have been executed only by the husbands. The notes themselves show the latter statement to be correct. It would be a wholly unwarranted stretch of construction to convert the above erroneous recital into the equivalent of an execution of the notes by the wives or into a covenant on their part to execute the notes. We do not understand the appellants to assert such a construction.

Their claim is that the acknowledgment of the existence of an indebtedness which is contained in the mortgage is sufficient to create an implied promise to pay it.

Before going further we pause to note that it is possible that a question of conflict of laws might have arisen in this case, if (as we do not undertake to determine) the mortgage should be construed under the laws of West Virginia rather than of Maryland and if the laws of the two States should happen to differ. However, no such point has been raised or decided (see Rule...