Brown v. Hardcastle

• Decision Date: 15 May 1885
• Parties: CHARLES BROWN v. ALEXANDER HARDCASTLE, Catherine Hardcastle, His Wife, and Isaac S. Lapham.
• Court: Maryland Court of Appeals

63 Md. 484

CHARLES BROWN v. ALEXANDER HARDCASTLE, Catherine Hardcastle, His Wife, and Isaac S. Lapham.

Court of Appeals of Maryland

May 15, 1885

Appeal from the Circuit Court for Caroline County, in equity.

The case is stated in the opinion of the Court.

The cause was argued before ALVEY, C.J., YELLOTT, MILLER ROBINSON, IRVING and BRYAN, JJ., for the appellant, and submitted on brief for the appellees.

Philip Frank Thomas, for the appellant.

George M. Russum, John B. Brown and E. H Brown, for the appellees.

Irving J., delivered the opinion of the court.

This appeal is from a pro forma decree of the Circuit Court for Caroline County, dismissing the appellant's bill of complaint. The bill prays the sale of certain real estate for the payment of a mortgage debt due the appellant as assignee of the mortgagee.

The bill charges that on the 27th of July, 1847, William M. Hardcastle of Caroline County, Maryland, being indebted to Mary A. N. Baynard in the sum of $9042.64 3/4, executed his bond to her for the sum of $18,085.29 1/2, "conditioned for the payment of the said sum of $9042.64 3/4 to the said Mary A. N. Baynard, her executors and administrators or assigns, with one per cent. interest per annum thereon, on or before the 13th of January, 1850." It is further charged that this bond was secured by a mortgage deed of certain lands in Caroline County, particularly described, to which mortgage is also appended a condition that it should be void upon the "payment by the said William M. Hardcastle, to the said Mary A. N. Baynard, of the said sum of money, with one per cent. interest per annum thereon, on or before the 13th of January, 1850, according to the condition of the bond aforesaid." It is also charged that it was understood by the parties, and agreed at the time, that if the money was not paid at the time appointed, thereafter it was to draw six per cent. interest per annum until paid. A copy of the bond, and of the mortgage, are exhibited with the bill. The bill further alleges that on the 3rd of August, 1852, the mortgagor paid, upon this debt, the sum of $5324.65, leaving due, at that time, to the mortgagee the sum of $4864.58, with interest from January 1st, 1852; that subsequently by two deeds, which are exhibited with the bill, the mortgagor conveyed all the real estate included in the mortgage to Alexander Hardcastle, one of the respondents. By the second deed, which is exhibited with the bill, the grantee covenants to pay all debts of the grantor. The bill further charges, that afterwards, on the 22nd of December, 1864, the grantee in the mortgage, and obligee in the bond, Mary A. N. Baynard, assigned the bond and mortgage to the appellant, by deed duly executed, acknowledged and recorded, as appears by copy exhibited with the bill; that subsequently, on the 27th of December, 1871, Alexander Hardcastle, the then owner of the mortgaged estate, assumed the payment of the debt to the appellant, and then admitted the sum of $9400 to be due thereon, which sum he agreed to pay in five years, with interest payable semi-annually--a copy of which agreement, duly executed, acknowledged and recorded, is exhibited with the bill; that failing to pay at the expiration of five years, either principal or interest, they came to settlement, and appellant and Alexander Hardcastle agreed with each that the basis of settlement should be as of the 3rd of October, 1878, the day of settlement, $12,000, with interest on the original indebtedness, viz., the sum of $4864.48 from the 1st of January, 1878, making a total of sum due of $12,218.90, as appears by copy of Exhibit "F," filed with the bill; and that, at that time, Alexander Hardcastle paid to the complainant the sum of $7352.45, leaving a balance of $4864.68 due, upon which balance interest at the rate of six per cent. per annum was paid by Alexander Hardcastle for 1879, 1880 and 1881. The bill also charges, that on the 3rd of December, 1881, Alexander Hardcastle and wife executed a mortgage to one Isaac S. Lapham of the same premises, conditioned for the payment to him of the sum of $6000, with interest payable semi-annually, on the 3rd of December, 1886. The death of the original mortgagor is alleged. Isaac S. Lapham is made a party; and the prayer is for a sale of the property to pay complainant's claim, all of which, as last alleged, is claimed to be due, with interest, and unpaid.

The respondent, Alexander Hardcastle, in his answer denies the amount claimed to be due, and pleads payment, and the Statute of Limitations. He denies any knowledge of the agreement respecting the change of the rate of interest in the event of default in payment by his father in January, 1850. He admits the payment on the 3rd of August, 1852, by the mortgagor, as alleged; but denies that after such payment, the balance, charged as remaining due, was due, and alleges that only $4170.12 remained due after such payment. He admits the conveyance of the property to him by the deeds exhibited with the bill. He admits the assignment of the bond and mortgage to the complainant, as charged, but denies the amount alleged then to be due. He admits the making of the agreement by which it appeared there was on the 27th of December, 1871, $9400 then due the complainant, but he denies that such amount was, in fact, due. He avers that agreement to have been cancelled and released. He admits the payment on the mortgage debt on the 3rd of October, 1878, of $7352.45, but he denies that it was paid on account of any agreement of which Exhibit "F" is a true copy, and avers that such payment paid and satisfied the mortgage. He admits the death of William M. Hardcastle, and the mortgage to Isaac S. Lapham. The mortgagee, Lapham, pleads payment, and the Statute of Limitations, and makes, substantially, the same answer in other respects as Hardcastle and wife, and pleads that Alexander Hardcastle had been twenty years in adverse, continuous and exclusive possession of the mortgaged premises before the same were mortgaged to him, and he relies thereon.

The presumption of payment in favor of a mortgagor in possession over twenty years is not conclusive, but may be rebutted by evidence of part payment of principal or interest, or by admissions of the debt's existence, or other circumstances from which it may be inferred the debt has not been paid. In other words, a recognition of the mortgage debt involving a promise to pay it will remove the bar of the Statute of Limitations. 2 Jones on Mortgages, secs 1196-1198, and Wood on Limitations, sec. 229. This is the law in this State. In Stump v. Henry, 6 Md. 209, this court says: "And payment of part of a mortgage will prevent it from being barred by limitations for twenty years afterwards, although the mortgagor may have been in possession for nineteen years and upwards prior to the payment." This disposes of the contention that the Statute of Limitations bars the claim of the appellant; for the debt was a subsisting debt of record when Alexander Hardcastle took a deed for the equity of redemption in 1864, covenanting to pay all existing debts of his grantor. Irrespective of the payment by the mortgagor in 1852, which is admitted, the mortgage in 1864 was only of seventeen years' standing, and only twelve years had elapsed from the large payment upon it by the mortgagor, which payment is admitted. After the deed to him, Dr. Alexander Hardcastle made payments thereon in 1864 and 1865, and in 1871 he entered into a written agreement, which is admitted in the answers, wherein the amount due on the mortgage at that date was ascertained, and a distinct and new promise made to pay it. This agreement, it is contended, was cancelled in 1878, and surrendered, but if it was, this new agreement of 1878, which is proved to have been made, recognized the existence of the debt, and a large payment was then made upon it, which payment it is now insisted extinguished the debt, although a large balance was then found to be due,...