Early v. Dorsett

• Citation: 45 Md. 462
• Parties: JOSEPH Q. E. EARLY, Guardian to MARY M. EARLY v. DORSETT, HARRIS & CO., and others.
• Decision Date: 11 January 1877
• Court: Court of Appeals of Maryland

45 Md. 462

JOSEPH Q. E. EARLY, Guardian to MARY M. EARLY v. DORSETT, HARRIS & CO., and others.

Court of Appeals of Maryland

January 11, 1877

APPEAL from the Circuit Court for Prince George's County, in Equity.

The case is stated in the opinion of the Court. Account K referred to in the opinion, awarded John T. Sasscer's distributive share of the proceeds of the re-sale, to his mortgagee, the appellant. The Circuit Court passed an order rejecting Account K, and affirming Accounts L and M, and dismissing the petition of Joseph Q. E. Early, guardian, &c filed on the 23rd of April, 1875. From this order the present appeal was taken.

The cause was argued before BARTOL, C.J., GRASON, MILLER, ALVEY and ROBINSON, J.

C C. Magruder and William H. Tuck, for the appellant.

Joseph K. Roberts, Jr., for the appellees.

MILLER J., delivered the opinion of the Court.

The controversy in this case relates to the disposition to be made of the distributive share of the proceeds of certain real estate belonging to one of the distributees. The material facts, as disclosed by the record, upon which the questions to be decided arise, are substantially as follows:

In December, 1858, a decree was passed by the Circuit Court for Prince George's County, for the sale of real estate devised by will, for the purpose of distribution amongst the devisees. The trustee sold the property to Sasscer, one of the devisees, for $14,175, and that sale was finally ratified in May, 1859. The purchaser complied with the terms of sale by paying the cash instalment, and giving bonds with approved security for the other instalments, and in January 1862, while in possession of the estate as purchaser and equitable owner, but before he had paid the purchase money in full, or obtained a deed from the trustee, he mortgaged the land to Early, the appellant. After having paid more than half the purchase money he made default as to the rest, and on petition of the trustee an order of re-sale was passed in March, 1870. That order is in the usual form, directing the trustee to sell the property for payment of the purchase money due therefor, with interest and costs, and that the sale shall be at the risk of Sasscer the purchaser. Under this order the trustee re-sold the property for $9600, and this sale was finally ratified in November, 1870. In April, 1872, Early recovered a judgment against Sasscer, on which in November, 1872, he issued an attachment, and caused it to be laid in the hands of the trustee as garnishee, to affect all Sasscer's interest in the proceeds of sale of this property, and it appears that this attachment proceeding is still undecided and pending in the law Court. After the attachment had been thus laid, Sasscer, in order to secure certain debts due them, made assignments of his distributive share of these proceeds, to the appellees, that to Dorsett, Harris & Co., being dated the 3rd of December, 1872, and that to Clarke and Hance, the 18th of April, 1873. These assignees filed their assignments on the 22nd of April, 1873, and claimed that Sasscer's share should be paid to them thereunder. Shortly before this, on the 8th of April, 1873, Early filed a petition in the cause, claiming all of Sasscer's interest in the proceeds of the re-sale, under the mortgage of January, 1862, and asking that the case be referred to the auditor, with direction to state an account distributing the fund with a view to ascertain Sasscer's share therein, and directing the trustee to pay such share to the petitioner in part payment of his mortgage debt, or to have it credited on his purchase, he having purchased the property under the re-sale.

Afterwards in January, 1874, the auditor stated and reported several accounts, some of which are in the record and others omitted. These accounts profess to deal solely with the proceeds of the re-sale, and we have nothing before us showing any distribution of the purchase money under the original sale. In one of these accounts the distributive share of Sasscer is ascertained to be $1718.55 and this is the fund in controversy. By one account this sum is awarded to Early, in part payment of his mortgage debt, and by others, to the appellees under the assignments by Sasscer to them, and exceptions were taken by both parties to the several accounts opposed to their respective claims. Up to this period, and indeed as it appears until after the exceptions had been argued, the appellant based his claim exclusively upon his mortgage. But on the 23rd of April, 1875, before the Court had rendered any decision, he filed an additional exception and a petition, in which he relies also upon his attachment, and insists that by laying the same in the hands of the trustee, he has acquired a prior lien, giving him a better right to the fund than that derived to the appellees under their subsequent assignments, and praying that the fund may be awarded to him as attaching creditor, or that such order or decree may be passed in reference to his claim under the attachment, as may be equitable in the premises. We have therefore to decide whether the appellant is entitled to this fund, or any part of it under his mortgage, or to any relief in respect to his claim thereto based on his pending attachment.

1st. As to the claim under the mortgage. It has been the settled law of this State since the case of Leadenham vs Nicholson...