Bradley v. Bond

• Decision Date: 22 June 1905
• Citation: 61 A. 504,101 Md. 691
• Parties: BRADLEY v. BOND et al. SAME v. JACOBS.
• Court: Maryland Court of Appeals

61 A. 504

101 Md. 691

BRADLEY v. BOND et al.

SAME v. JACOBS.

Court of Appeals of Maryland

June 22, 1905

Appeals from Circuit Court, Harford County, in Equity; Geo. L. Van Bibber, Judge.

Creditors' suit by Otho S. Lee, on behalf of himself and other creditors of James S. Calder, against James S. Calder and others. From a nunc pro tunc order authorizing Adam Bond to intervene, and from so much of the order of distribution as prefers the judgment of Frank H. Jacobs, one of the defendants, Sylvester A. Bradley, administratrix of Andrew T. Bradley, deceased one of the defendants, appeals. Affirmed.

Where one is a proper party to a creditors' suit, being a creditor and interested in maintaining the priority of a judgment of another creditor, but is not made a party, and files a petition in the suit, notice of which is given all the other parties by subpoena, and testimony is taken, and all parties have opportunity to present their contentions, a nunc pro tunc order authorizing such person to intervene is harmless. The opinion of the court below is as follows:

"This is a creditors' suit for the proper distribution of the property and estate of James S. Calder amongst his creditors according to their legal priorities. It appears from the proceedings that the record liens are more in amount than the proceeds of sale, and that there will be nothing for the general creditors. From the papers it appears that, after costs and trustees' expenses, the liens of record have priority as follows: (1) Alexander S Bell, mortgage, 21st April, 1887, $1,000; (2) Otho S. Lee mortgage, 21st April, 1897, $800; (3) Frank H. Jacobs judgment, 15th October, 1897, $500; (4) Bradley's administratrix, judgment, 18th May, 1900, $705.24; (5) Jas. C. Calder, mortgage, 14th September, 1903, $1,200; (6) Second National Bank, judgment, 15th September, 1903, $304.75; (7) Harford National Bank, judgment, 17th September, 1903, $293.01.

"Bradley's administratrix, in her answer to the bill of complaint, admits that the mortgages to Bell and Lee are liens prior to her judgment, and that the judgment for $500 held by F.H. Jacobs is also prior in date to her judgment, but alleges that it was given as collateral security for a mortgage which Jacobs holds against a certain Adam Bond for $500, and that he should be required to exhaust all of the mortgaged property, and only claim the deficiency against Calder's estate. The deed of trust was made by Calder to Carver October 9, 1903, and upon it a bill was filed the same day asking that the trust be executed under the orders and direction of this court. The parties to the bill, besides Calder and wife and Carver, trustee, are the holders of the seven above-enumerated liens. The decree was passed on the 24th day of November, 1903.

"The question now before the court is raised by a petition filed by one Adam Bond on December 30, 1903, in which he claims that the judgment for $500 held by Frank H. Jacobs should be paid in full before anything is paid upon the liens subsequent to its date, which is in direct conflict with the claim set up by Bradley's administratrix in her answer.

"From the proceedings and testimony it appears that in 1892, and for some time prior thereto, James S. Calder was indebted unto Adam Bond upon open accounts for a sum of money exceeding $650 in amount; that in October of 1892 Bond bargained with S.A. Williams, trustee, for the purchase of a house and lot for $650 cash, and then made demand upon Calder for the payment of that amount. In response to this demand, Calder raised $150 in cash, and undertook to arrange the purchase with Williams, and took Bond to Williams' office for that purpose. The purchase was completed by a deed being given to Bond, and by his giving Williams a balance of purchase-money mortgage for $500, upon which was indorsed Calder's guaranty for its payment. Thereafter, up to the time of his assignment, Calder always paid the interest. The mortgage was assigned by Williams to a certain Schuster, who in 1897 became dissatisfied with the security, and at his instance Calder, as further security, confessed a judgment in the circuit court for Harford county for $500. The mortgage and judgment shortly afterwards were both assigned to Frank H. Jacobs, who held them at the time of Calder's assignment. Bond, in his petition, denies all knowledge of the mortgage, and said he supposed Mr. Williams and Calder had arranged for the payment of the $500 independent of him, but the testimony and papers do not bear out his contention.

"In this case the familiar principle that where there is a lien on two different parcels of land, and a junior lien on one of them, and the party holding the elder liens elects to have his whole debt paid out of the land bound by the lien of the junior creditor, the latter may have the prior creditor thrown upon the other fund, or have the prior lien assigned to him, and receive all the aid it can afford him, does not apply, because the fund or property answerable for the $500 debt is not all the property of the same debtor. The house and lot described in the mortgage belonged to Adam Bond, and the property covered by the judgment lien belonged to Calder. Hall v. Farmers' National Bank, 53 Md 124; Ex parte Kimble, 17 Vesey, 520. The facts disclose a clear case of principal and surety. The mortgagor, Bond, is the principal debtor, and Calder his surety, first by his personal guaranty indorsed on the mortgage, and subsequently by his giving a lien on his farm. In Johns v. Reardon,...