Bruce v. Levering
| Decision Date | 08 July 1865 |
| Citation | 23 Md. 288 |
| Parties | HELEN BRUCE and others, v. THOMAS L. LEVERING and others. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court of Baltimore city.
This was a bill in equity, filed on the 12th December 1862, by the appellants, against the appellee, Levering, for an injunction restraining the said appellee and the Sheriff from proceeding to sell certain property of Daniel C. Bruce, levied on under a judgment obtained by said appellee against said Bruce, the appellants claiming to have been prior mortgagees of the same property. The case is fully stated in the opinion of this Court.
The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH, COCHRAN and WEISEL, J. Wm. Daniel, for the appellants, argued:
1st. That the writing referred to in the record as exhibit A, is a bona fide bill of sale, in due form, and conveyed all the interest of the grantor in the servants and the several articles therein mentioned, to the grantees.
2nd. Admitting the said bill of sale to be a mortgage, the appellees have no interest therein, and, therefore, no right to ask the aid of a Court of Equity, as it is clearly proved there is not enough to pay the appellants' claim, and therefore, no equity of redemption. Harris & Chauncy & c., vs. Alcock, 10 G. & J., 226. Furlong & Miller, vs. Edwards, 3 Md Rep., 110. It is no where alleged by the appellees, that there is a sufficiency or more than a sufficiency to pay the claims of the appellants. Rose & Gauss, vs. Bevan, et al., 10 Md. Rep., 466.
3rd. The holder of an equitable title has a right to file a bill to compel the conveyance of the legal title upon paying off the incumbrance. Smith vs. Orton, 21 How., 241.
4th. Against the legal title, Courts will interfere with great reluctance. Furlong & Miller, vs. Edwards, 3 Md. Rep., 112. Speights vs. Peters. 9 Gill, 472. Williams vs. Wilson, 1 Bland, 422.
5th. When a defendant, in a Court of Law, applies for relief to a Court of Chancery, it is competent for the Court to decide facts, or send them to a jury, & c. Key vs. Knott, 9 G. & J., 342.
6th. The title to personal property becomes absolute in the mortgagee upon failure of the mortgagor to comply with the condition of the mortgage. Brown vs. Brement, 8 Johns., (N. Y., ) 96. Patahin vs. Pierce, 12 Wend., 61. Dane vs. Mallory, 16 Barb., 53 and 61. Evans & Iglehart, vs. Merriken, 8 G. & J., 39. 1 Powell on Mortgages, 3.
O. Miller and Robert C. Barry, for the appellee, argued:
1st. That the instrument of the 1st of November 1861, is a mortgage, and will be so treated in a Court of Equity. The grantor could undoubtedly have so treated it, and by paying the debt which it was given to secure, have redeemed his property; and, if so, he cannot deprive his creditors of the right so to treat it by any subsequent act, or by any election on his part to consider it an absolute conveyance. Dougherty vs. McColgan, 6 G. & J., 281.1 Md. Ch. Dec., 178 and 536. 2 Id., 430. 3 Id., 521.
2nd. A judgment creditor has the undoubted right to levy his execution upon the mortgaged property of his debtor, and then apply to a Court of Equity for a sale, making the mortgagees parties to the proceeding. He has the right to have the property sold, and its value tested in this way, so that if it should sell for more than sufficient to pay the mortgage debt, the residue may be applied to his claim. Griffith vs. Frederick County Bank, 6 G. & J., 424. Harris vs. Alcock, 10 G. & J., 252.
3rd. The exceptions of the appellee to the evidence were well taken, and for the reasons assigned in the exceptions themselves.
The facts, upon which the questions in this case depend, are these: An execution, issued on a judgment obtained by Levering, one of the appellees, against Daniel C. Bruce, was levied on certain chattels and household stuff previously conveyed or mortgaged by him to the appellants, who thereupon filed their bill, and obtained an injunction restraining Levering from selling this property under his execution. Levering answered this bill, denying that the appellants had shown a proper case for an injunction, and insisting that he was entitled to a sale of the property, without, however alleging that his debtor had no other assets, or that the property levied on was more than sufficient to satisfy the appellant's just claims; and then prayed the Court to decree a sale, and dissolve the injunction. This response to the bill was followed by a motion to dissolve, and an agreement, that certain exhibits, filed by the appellants, to show the consideration for which the conveyance from Bruce to them was executed, should be read in evidence upon the hearing thereof, " but not at the final hearing, except proved in the regular way." This motion appears to have been neither heard nor disposed of until it was overruled by the final decree continuing the injunction. The depositions of Daniel C. Bruce, William M. Woods, and John H. Lloyd, were also taken under another agreement, that they should be read upon the final hearing " as if regularly taken under a commission, and with the same effect, and subject to like exceptions." Other depositions were taken and filed by the appellants, but, for reasons apparent upon the face of the record, we shall exclude them from consideration in disposing of the appeal. Upon these proceedings and evidence, the decree, continuing the injunction, and appointing a trustee to sell the property in question, was passed; and, in reviewing that decree, we must bear in mind that the proceedings, although instituted by the appellants, to prevent the appellee from selling under his execution, was, nevertheless, so far modified by his prayer for a decree to sell, and the evidence subsequently offered, as to take the character of proceedings commenced by himself for that purpose. The complainants below, notwithstanding the decree affords the specific relief sought by the bill, took this appeal upon the alleged ground, that the proceedings and proof were not sufficient to authorise the Court to decree a sale; and we shall therefore review the evidence, as well as the answer of the appellee, for the purpose of ascertaining whether such a case was presented as will sustain the decree. We may concede, without however so deciding, that the conveyance from Bruce to the appellants was intended to operate as a mortgage. This accords with the theory of the appellee, and will afford him the relief sought by his prayer for a decree to sell, if his case, in other material particulars, is sufficiently made out by proper averments and proof. It was agreed that certain exhibits should be read in evidence upon the motion to...
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