Dubin v. Mobile Land Corp.

• Decision Date: 28 June 1968
• Docket Number: No. 219,219
• Citation: 243 A.2d 585,250 Md. 349
• Parties: Max DUBIN v. MOBILE LAND CORPORATION.
• Court: Maryland Court of Appeals

Page 349

250 Md. 349

243 A.2d 585

Max DUBIN v. MOBILE LAND CORPORATION.

No. 219.

Court of Appeals of Maryland.

June 28, 1968.

Paul Jacobs, Baltimore (Irvin Jacobs, Baltimore, on the brief), for appellant.

Nathan Patz, Baltimore (Harry M. Ashman, Baltimore, and Charles E. Wehland, Ellicott City, on the brief), for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS and FINAN, JJ.

BARNES, Judge.

This appeal is by a mortgagee, Max Dubin, from a decree of the Circuit Court for Howard County in equity (Mayfield, J.) enjoining the mortgagee from instituting any foreclosure proceedings for any default alleged to have occurred prior to April 26, 1967, the date of the decree. The decree also allowed the mortgagee such expenses as he may have incurred in instituting foreclosure proceedings upon producing vouchers or statements to the court, ordered the Clerk of the Circuit Court to pay to the mortgagee such sums paid into court by the mortgagor, Mobile Land Corporation (Mobile or mortgagor), appellee in this appeal, representing monthly payments required to be paid under the mortgage and requiring the mortgagee to pay the costs.

The mortgage in question, dated August 19, 1966, was for $35,000 with monthly payments of $388.59, the balance being payable in full, seven years after date, upon three parcels of land in Howard County owned by Mobile and was duly recorded on August 24, 1966. The dispute on the merits involves an alleged default resulting from a supposed breach of the covenant to pay taxes, and raises questions involving the construction of the language of the mortgage itself, and questions of estoppel and waiver. We do not reach these interesting questions considered by the Chancellor in a well reasoned and comprehensive written opinion because we have concluded that the appeal in this case must be dismissed.

The decree of April 26, 1967, from which the appeal was taken, provides as follows:

'It is, thereupon, this 26th day of April, 1967, by the Circuit Court for Howard County, In Equity, ADJUDGED, ORDERED and DECREED that Max Dubin, his agents, servants and employees, be, and they are, hereby restrained and enjoined from instituting any foreclosure proceedings of the mortgage hereinbefore referred to for any defualt alleged to have occurred prior to the date of this Decree, and

'It is further ORDERED that the said Max Dubin be, and he is, hereby allowed such expenses as he may have incurred in instituting foreclosure proceedings which are the subject of the within cause, upon producing vouchers or statements therefor to this Court, and

'It is further ORDERED that the Clerk of this Court be, and he is, hereby directed to pay to the said Max Dubin such sums as have been paid into this Court by Mobile Land Corporation, representing monthly payments required to be made under said mortgage, and

'It is further ORDERED that the said Max Dubin pay the costs of this case.'

In accordance with the decree, counsel for the mortgagee, on May 9, 1967, filed a 'Submission of a Voucher' as follows 'In accordance with the decree of this Court dated April 26, 1967, the Plaintiff (the mortgagee, Max Dubin) hereby submits a voucher from A. J. Billig & Company dated December 28, 1966 in the sum of $330.56.'

The attached voucher shows the following items:

                  "Withdrawal fee--Re--3 parcels--
                unimproved and improved land, situate on
                N.W. Side of Balto.  Wash. Blvd., U.S
                Rt. #1, Howard Co., Md.  $ 150.00
                Ellicott City Times         77.28
                Sun Adv.                    71.60
                Daily Record Adv.           31.68
                                         -----------------
                                         $ 330.56"
                

This voucher was approved by an order of the Chancellor the same day reciting that the allowance of the expenses of $330.56 was in accordance with the decree of April 26, 1967.

On May 24, 1967, the mortgagee filed with the Clerk of the Circuit Court an order for appeal which stated:

'Enter an appeal to the Court of Appeals of Maryland from the decree entered in this action on April 26, 1967.'

It is not disputed that a check for $330.56 was given to the mortgagee made payable to him and his attorney and marked 'To satisfy the order of Court for the payment of expenses,' was endorsed by the payees and cleared the bank on August 9, 1967, so that the amount of the check, $330.56, was received by the mortgagee for his expenses as provided in the decree of April 26, 1967.

Thereafter on August 29, 1967, the mortgagor-appellee filed a motion to dismiss the appeal, reciting the above facts, attaching a photostatic copy of both sides of the check and reciting that the appeal had become moot by the acceptance by the mortgagee-appellant of the benefits and performances decreed by the Chancellor, derived from a single and indivisible final decree. After the mortgagee had filed an answer, but without hearing argument, we declined to dismiss the appeal without comment on September 5, 1967. In its brief filed in this appeal, the mortgagor-appellee again filed a motion to dismiss the appeal reasserting the same grounds alleged in the prior motion. At the argument we reserved our decision on the motion to dismiss and heard argument on the merits.

It is well settled in Maryland, and the law generally is to the effect, that if a party, knowing the facts voluntarily accepts the benefits accruing to him under a judgment, order or decree, such acceptance operates as a waiver of any errors in the judgment, order or decree and estops that party from maintaining an appeal therefrom. Silverberg v. Silverberg, 148 Md. 682, 130 A. 325 (1925); Stewart v. McCaddin, 107 Md. 314, 68 A. 571 (1908). See 4 C.J.S. Appeal and Error § 215, p. 644. If, however, the portion of the decree adjudicates a separate and distinct...