Blanch v. Collison

• Decision Date: 18 May 1938
• Docket Number: 3.
• Citation: 199 A. 466,174 Md. 427
• Parties: BLANCH v. COLLISON.
• Court: Maryland Court of Appeals

199 A. 466

174 Md. 427

BLANCH v. COLLISON.

No. 3.

Court of Appeals of Maryland

May 18, 1938

Appeal from Circuit Court, Anne Arundel County; Linwood L. Clark Judge.

Suit in equity by Lula A. Blanch, individually and as administratrix of the estates of Richard W. Ward and Sarah E. Ward deceased, against David W. Collison, individually and as executor under the last will and testament of Nicholas G Collison, to recover income, rents, and profits arising out of mortgaged property, to recover insurance money paid on a dwelling on the property destroyed by fire, to procure release of mortgages and a declaration that the property would be held by Lula A. Blanch free and clear of defendant and those claiming by or under him. From an adverse decree the plaintiff appeals.

Affirmed.

William J. McWilliams, of Annapolis, and John A. Cochran, of Baltimore (George W. Haley and McWilliams & Duckett, all of Annapolis, on the brief), for appellant.

Noah A. Hillman, of Annapolis, for appellee.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

PARKE Judge.

The appeal here is from a decree of the chancellor which sustained the demurrer to an amended bill of complaint, and dismissed the suit, with costs to the defendants. A certain Richard W. Ward owned some years ago a parcel of land of sixty square perches in Anne Arundel county, and became indebted to Nicholas G. Collison in the sum of $100. To secure the indebtedness, Ward executed a mortgage whereby he conveyed the land to Collison by deed dated May 22, 1899, and duly recorded. Later and after the maturity of the mortgage debt, Ward, who was then intermarried with Sarah E. Ward, executed a deed, dated July 30, 1904, which purported to convey the land to his wife, Sarah E. Ward. The deed was recorded. On December 29, 1905, Richard W. Ward and Sarah E. Ward, his wife, are alleged to have executed a second mortgage on the same land to Nicholas G. Collison to secure an extension for two years of the payment of the original debt, which had been reduced to $85, and for which a second note of even date therewith for $85 and payable to Collison two years after date was given by the husband. The mortgage was recorded. During the year 1906, Richard W. Ward and Sarah E. Ward, his wife, who were negroes, moved from Anne Arundel county, where they had been living, to Baltimore City. Before they left, it is alleged that they entered into an agreement with Collison whereby he undertook to act as the agent of the mortgagors for the purpose of managing the mortgaged premises and other property and of collecting the rents and applying any collections to the credit of the then existing mortgage debt. The bill of complaint further charges that Nicholas G. Collison did collect the rents and profits from 1906 until the time of his death on May 30, 1908, and that the amounts so charged to have been received were in excess of the principal and interest due on the mortgage debt, but the mortgage and the debt secured were not released. It will be observed that the agreement set up charges that the receipts were to be applied on the 'then existing mortgage debts,' and that the later allegations are in reference to a single mortgage debt, without any attempt to identify which mortgage debt is meant. The conflicting nature of these statements introduces an element of uncertainty and indefiniteness, which are inconsistent with good pleading.

Nicholas G. Collison died testate, and letters testamentary were granted on June 9, 1908, by the orphans' court of Anne Arundel county to David W. Collison, his son and executor. The further allegations are that David W. Collison in his representative capacity instituted foreclosure proceedings in the circuit court for Anne Arundel county under the power contained in the first mortgage deed, but that the mortgage note filed with the statement of the mortgage claim is the note of $85, dated December 29, 1905, for which the second mortgage deed was given. Again, there is indefiniteness with respect to the matter of the mortgage debts, which arises from the facts that there is no averment nor disclosure of the amount of the debt claimed and as set forth in the statement of the mortgage claim, and that there is no inconsistency in filing the evidence of a second mortgage debt under a second mortgage lien on the same land which is being foreclosed by virtue of a power of sale contained in the first mortgage deed. After the application of the proceeds of sale to the payment of the first mortgage lien, the lien of the second mortgage or other subsequent mortgage liens would be enforced according to their respective priorities against the residue, if any, of the proceeds. Code, art. 66, § 12.

The chancellor treated both mortgages as being for the same indebtedness, which by the time of the execution of the second mortgage had been reduced from its original amount of $100 to $85. The allegations of the bill leave the matter factually ambiguous, since it appears from the recitals in the second mortgage that the mortgagee had agreed to extend the payment of the first mortgage for a period of two years in consideration of the execution of the note for $85 and of the mortgage to secure the payment of this second note. The bill of complaint should not have left the matter so doubtful, although this vice is not vital as it does not control the decision. 19 R.C.L.§ 235, p. 452; 41 C.J. § 203, p. 387.

Without further comment on the indefinite quality of the bill of complaint, the statement of its averments will be resumed. It is set forth that under the foreclosure proceedings mentioned which were had pursuant to the power of sale contained in the mortgage deed, the land in question was sold at public auction to David W. Collison, the highest bidder, for the sum of $75; and the sale so made was reported and filed in the cause and an order nisi was passed, but the sale has never been ratified, and after the report nothing further appears to have been done in the equity cause. Rieman v. Wagner, 74 Md. 478-480, 22 A. 72; Stoll v. Smith, 129 Md. 164, 98 A. 530; Code, art. 66, §§ 9, 13. Since the death of Nicholas G. Collison in 1908, it is charged that David W. Collison has collected the income, rents, and profits of the land which it is said have aggregated the sum of $1,700 in that time; and that, in addition, David W. Collison has been paid the sum of $800 as insurance for the destruction by fire, on March 13, 1934, of a frame dwelling on said property.

Richard W. Ward died intestate on December 1, 1934, and his widow, Sarah E. Ward, attempted to convey said land unto their daughter, Lula A. Blanch, by deed dated December 10, 1935, and, on March 25, 1936, the widow and mother died intestate. On April 20, 1937, the daughter, Lula A. Blanch, was appointed by the orphans' court of Anne Arundel county the administratrix of both her father and her mother.

The bill os complaint concludes with the statement that Richard W. Ward could neither read nor write, and that his wife, Sarah E. Ward, could read and write but little, and that neither understood anything about business or business affairs. In the absence of any allegation which charges either duress, mistake, deceit, misrepresentation, or any form of fraud, these last allegations are immaterial on demurrer. Nor, under the averments made, is the further statement that neither of the mortgagors was personally notified nor had knowledge of the mortgage foreclosure proceedings of any legal consequence. Each of the mortgages contained the power of foreclosure on default of the mortgagors in any of the covenants of the mortgage deeds, and no other notice is contemplated and required other than the proceedings begun and conducted in conformity with the terms of the mortgage and the statute. Code, art. 66, §§ 6-14; Cockey v. Cole, 28 Md. 276, 282, 92 Am.Dec. 684; 19 R.C.L., § 419, p. 603; Dyer v. Shurtleff, 112 Mass. 165, 17 Am.Rep. 77.

Again, both mortgages were on record and were unreleased, and the records of the circuit court for Anne Arundel county showed the foreclosure proceedings under the earlier mortgage deed to have been conducted and carried to the point of a sale made and reported, with an order nisi passed thereon, but not finally ratified and confirmed. Of all these records the grantee, Lula A. Blanch, had constructive notice. Code, art. 21, §§ 13, 15, 29, 32; Baker v. Baker, 108 Md. 269, 273, 70 A. 418, 420, 129 Am.St.Rep. 439; Sanders v. McDonald, 63 Md. 503, 507-513; Wilmer v. Light Street Savings and Bldg. Ass'n, 143 Md. 272, 279, 122 A. 129, 131.

It is upon the alleged facts here recited that Lula A. Blanch in her own behalf and as the administratrix of the separate estates of her father, Richard W. Ward, and of her mother, Sarah E. Ward, began a suit in equity against David W. Collison individually and in his representative capacity as executor of Nicholas G. Collison in order to obtain general relief, and, specifically, to secure an accounting for the income, rents and profits arising out of the mortgaged property as well for those that were received by his testator, Nicholas G. Collison, as for those which were received by David W. Collison for the benefit respectively of Richard W. Ward and Sarah E. Ward; and for the insurance money paid to the defendant for the dwelling destroyed by fire; and to procure a release of the two mortgages mentioned, and a declaration that the property is and would be held by Lula A. Blanch free and clear of him and those claiming by or under him.

The demurrer to this bill of complaint raises many obvious questions which affect its form or sufficiency of content to show any...