Boyd v. Parker

• Decision Date: 24 June 1875
• Parties: WILLIAM A. BOYD v. OLIVER A. PARKER and JOHN C. H. BOSTON, trading as E. L. PARKER & CO.
• Court: Maryland Court of Appeals

43 Md. 182

WILLIAM A. BOYD v. OLIVER A. PARKER and JOHN C. H. BOSTON, trading as E. L. PARKER & CO.

Court of Appeals of Maryland

June 24, 1875

APPEAL from the Circuit Court of Baltimore City.

The bill in this case was filed by the appellees against the appellant and others for the foreclosure of the following mortgage, which was properly executed:

"This mortgage made this 31st of May, in the year 1869, by Matthew W. Kilgore, of the City of Baltimore in the State of Maryland.

Whereas Margaret A. Warner, of the City of Baltimore aforesaid, has this day endorsed three promissory notes all of even date herewith, drawn by the said Matthew W. Kilgore, each note for the sum of five hundred and seventy-five dollars and fifty cents, and interest payable in seven, thirteen and nineteen months respectively after date, and duly stamped, the said notes in the aggregate amount to the sum of one thousand seven hundred and twenty-six dollars and fifty cents.

And whereas, it was a condition precedent, and which condition has induced the said Margaret A. Warner to endorse the three promissory notes aforesaid, that the said Matthew W. Kilgore shall make and execute unto her a mortgage upon his dwelling house and premises hereinafter described, to secure her from any and all loss she may sustain by the non-payment by the said Matthew W. Kilgore, or any one in his behalf, of the said promissory notes, or any of them upon their maturity respectively. And whereas, it is the desire of the parties to these presents, that such agreement shall be carried out in good faith in every particular:

Now this mortgage witnesseth, that in consideration of the premises, and of one dollar, the said Matthew W. Kilgore doth grant and assign unto the said Margaret A. Warner, her executors, administrators and assigns, all that lot or parcel of ground situate in the City of Baltimore aforesaid, and described as follows, that is to say: * * * * * * * *

To have and to hold, the said described property, with the rights and appurtenances aforesaid, unto the said Margaret A. Warner her executors, administrators and assigns, during all the residue of the term of years yet to come, and unexpired therein, with the right and benefit of renewal of said term forever, subject to the payment of the yearly rent of fifty-one dollars, payable in equal half-yearly instalments on the first day of January and July, in each year respectively; provided, that if the said Matthew W. Kilgore, his executors, administrators or assigns, shall pay or cause to be paid the three promissory notes aforesaid, at their maturity, respectively, to the holder or holders of them, or in case the said Margaret A. Warner, her executors, administrators or assigns, shall be compelled to pay the said notes or any of them, and the said Matthew W. Kilgore, his executors, administrators and assigns, shall pay or cause to be paid to the said Margaret A. Warner, her executors, administrators and assigns, the amount she or they may have been compelled to pay, so that it shall not exceed the sum of $1,726.50 and interest, and shall perform the covenants herein contained on his and their part to be performed, then this mortgage shall be void and of no effect. And the said Matthew W. Kilgore doth hereby declare his assent to the passing of a decree by the Circuit Court of Baltimore City, or any other Court of competent jurisdiction, for a sale of the property hereby mortgaged, to take place at any time after default shall have been made in payment of the mortgage debt aforesaid, or any part thereof, or of the interest thereon, whether the time limited for the payment of the whole debt shall have expired or not, pursuant to the provisions of the Maryland Code of Public Local Laws, Article IV, section 782, &c., relating to mortgages in the City of Baltimore, and in the event of a sale under such decree, the proceeds thereof shall be applied to the payment of all claims of the said mortgagee, her representatives or assigns under this mortgage, whether the same shall have matured or not. And it is agreed between the said parties, that until default be made in the premises, the said mortgagor shall hold and possess the hereby mortgaged property, and receive the rents and profits thereof, upon paying, in the meantime, the ground-rent and all taxes thereon, and also the mortgage tax on the debt hereby secured, which groundrent, taxes, mortgage debt and interest, the said mortgagor for himself, his heirs, executors, administrators and assigns, hereby covenants to pay when legally demandable. And also during the continuance of this mortgage, to keep the improvements on the said mortgaged premises named, against damage or loss by fire, to the amount of at least one thousand seven hundred and twenty-six 50/100 dollars, and to cause the policy of such insurance to be so framed or endorsed, as that in case of loss by fire, the avails thereof, shall inure to the benefit of said mortgagee to the extent of her lien or claim under this mortgage."

The bill stated: "That on the 31st of May, 1869, a certain Matthew W. Kilgore, then of the City of Baltimore, but now residing in Baltimore County, being indebted to your orators in a large sum of money for goods sold and delivered, made and executed his three several promissory notes for $575.50 each, payable respectively in seven, thirteen and nineteen months after date, to the order of Margaret A. Warner, now of Baltimore County; that the said Margaret A. Warner, on the same day, endorsed the said notes to your orators, and on the same day the said Kilgore executed to the said M. A. Warner, a mortgage upon certain property in the City of Baltimore, to secure the payment of said notes to whomsoever might be the holder thereof, and to indemnify her from loss by reason of the endorsement thereof. All of which will appear by a duly certified copy of said mortgage, to be hereafter filed; that the said notes were duly protested for non-payment, and are still held by your orators-- as will appear by said notes and the protests thereof, herewith filed as Exhibits E. L. P. & Co., Nos. 1, 2 and 3."

"Your orators further shew, that the said Matthew W. Kilgore did, on the 30th of June, 1870, sell and convey the said mortgage property to William A. Boyd, of said City of Baltimore; and your orators are advised that they are entitled, as holders of said notes, to the benefit of the security afforded by the said mortgage, but that they can only obtain the same by the aid of this Honorable Court."

There was a prayer for a sale of the mortgaged premises and for subp na, against Matthew W. Kilgore, Margaret A. Warner and William A. Boyd.

The separate answer of William A. Boyd, states, "That he is ignorant of the fact charged in said bill, that the said Matthew W. Kilgore, one of the defendants, being indebted to the complainants in a large sum of money, for goods sold and delivered, made and executed his three several promissory notes for $575.50 each, payable respectively in seven, thirteen and nineteen months after date, to the order of Margaret A. Warner, and that the said Margaret A. Warner, the same day, endorsed the said notes to the complainants, and requires proof of such indebtedness, and of the making, execution and endorsement of said notes."

"This defendant denies, as is alleged in said bill, that the said Kilgore executed to the said Margaret A. Warner, a mortgage upon certain property in the City of Baltimore, which was afterwards conveyed by said Kilgore to this defendant, to secure the payment of the said notes to whomsoever might be the holders of the same, and to indemnify her against loss by reason of endorsement, but, on the contrary, avers that the said mortgage was expressed to be for the purpose of indemnifying her against loss by reason of the endorsement of certain promissory notes mentioned in said mortgage, and for no other purpose, but that it does not appear from said mortgage that the notes therein mentioned had been endorsed to any one, or had even been passed out of the possession of the said Kilgore and Warner--as will appear by reference to the copy of said mortgage filed in this case. This defendant denies that the notes mentioned in the bill of complaint, and filed therewith, are the notes mentioned in the mortgage of said Kilgore.

This defendant admits that on the 30th of June, 1870, he purchased from the said Kilgore, the leasehold lot of ground on Eden Street, which is described in the said mortgage from Kilgore to Warner, but he charges and avers, that at the time he made said purchase, the said property was free from all incumbrances, and especially the said mortgage from Kilgore to Warner, had been released by the mortgagee therein named, in the form and manner provided by the Code of Public General Laws of Maryland, for releasing mortgages--as will appear by reference to the copy of said mortgage filed in this case.

This defendant avers, that on or about the 30th of June, 1870, he agreed to purchase from said Kilgore through said Kilgore's agent, a certain Samuel H. Hooper, (this defendant having no acquaintance with the said Kilgore,) the property mentioned, for the sum of three thousand one hundred dollars cash, said property to be free from all incumbrances that this defendant employed counsel to examine the title to said property, and that his said counsel reported to him that there were several mortgages and a judgment, existing liens thereon, viz: a mortgage to David W. Caskey, dated the 30th of October, 1867, for the sum of twenty two hundred dollars, which had been subsequently assigned by the said Caskey to a certain Robert D. Berry, a mortgage to the Steuben Building Association, dated 30th of October, 1867, and * * * the mortgage to ...