McGonigal v. Plummer

Decision Date09 April 1869
Citation30 Md. 422
CourtMaryland Court of Appeals

APPEAL from the Circuit Court for Caroline County, in Equity.

Thomas Postles sold certain land in Caroline County, to Joseph McGonigal of said county. Appended to the deed was a receipt in full for the purchase money. On the same day McGonigal executed and delivered to Thomas Postles his bond obligatory with S.D. McGonigal, of the State of Delaware, as surety conditioned for the payment of the sum of $2,300, with interest, and containing a power to confess judgment thereon in any Court of record in the State of Delaware. Postles assigned this bond to Wm. K. Lockwood, and Lockwood assigned it to S.D. McGonigal, "at his risk of collection."

The property so conveyed was afterwards sold under a deed of trust made by Joshua McGonigal, and the proceeds of sale brought into Court for distribution.

In the auditor's account A, the claim of S.D. McGonigal upon the abovementioned bond was allowed as a preferred claim, and upon exception taken to such allowance, the Court (CARMICHAEL, J.,) delivered an opinion adverse to the claim and concluding as follows: "The objections to the statement of the auditor allowing the claim of Samuel D McGonigal as a debt of preference are sustained, and the audit in this respect is set aside." From this decision the present appeal was taken.

The cause was argued upon the merits, and upon a motion to dismiss the appeal, before BARTOL, C.J., STEWART, BRENT, MILLER and ALVEY, J.

H. M. Murray and George H. Williams, for the appellant:

In Maryland, the vendor's lien, so long as it exists overrides the claims of all but specific lien claimants; it overrides all claims of those holding general liens, such as judgment creditors, or those purchasing under executions levied on such judgments; and on the distribution of a decedent's or an insolvent's estate, equity will marshal the assets so as to put the vendor altogether upon his equitable lien for the benefit of other creditors. Iglehart vs. Armiger, 1 Bland, 519; Schnebly vs. Ragan, 7 G. & J., 120, 126; Repp vs. Repp, et al., 12 G. & J., 341.

It is admitted that when the note or bond taken for the balance of the purchase money is assigned, the lien does not pass unless specially assigned, and that it cannot pass by implication. Watson vs. Bane, 7 Md., 117. And it is further admitted that endorsing a note "without recourse" would destroy the lien, also the assigning of a bond without specially assigning the lien with it, but this law is only applicable to those who claim as assignees under the assigned instrument. Here the appellant claims not as assignee of a bond secured by the vendor's lien, but as a surety who claims to be subrogated to the rights of the creditor, as existing at the time he entered into the contract--he claims that lien "given to him by law as an inducement to enter into the bond," as Judge MARTIN says, on page 526, in 4 H. & J., delivering the opinion of the Court of Appeals, and to the destruction of which his consent was never given or asked. It is in vain to apply to him law only applicable to assignees when he does not claim as assignee, but as an obligor who has discharged his principal's liability. According to LORD ELDON, as quoted and endorsed by what fell from the Court in Schnebly vs. Ragan, 7 G. & J., 120, were Postles to have the bond re-assigned to him, the lien would be revived; why should it not be revived for the surety to Postles, who now stands in Postles' place and stead? and why should not his possession be, as to the lien, equivalent to the re-acquisition of it by Postles? That ordinarily he is so substituted, the following cases establish:-- Ghiselin vs. Ferguson, 4 H. & J., 522; Magruder vs. Peter, 11 G. & J., 245; Welch vs. Paran, 2 Gill, 329.

The equity of the vendor's lien attends the claims for the purchase money, although the vendor may have parted with the legal title, because the land is not in the hands of innocent purchasers without notice, seeking protection, but has been sold by the trustee, who now holds the money subject to the equities of all parties, as they might have been enforced against the grantor in the deed of trust.

Alex. B. Hagner and Alex. Randall, for the appellees:

The appeal in this case should be dismissed, first--because there is no final decree or decretal order passed by the Circuit Court from which an appeal could be taken. There is indeed no decree or order of any description passed by the Court. The Judge has merely stated at the conclusion of his opinion, that certain objections taken to the statement of the auditor are sustained, and the audit in that respect set aside, but nothing is finally done. Code, Art. 5, sec. 20, Act of 1864, ch. 156; Snowden vs. Dorsey, 6 H. & J., 114; Hagthorp vs. Hook, 1 G. & J., 270; Roberts vs. Sailsbury, 3 G. & J., 425; Hatton vs. Weems, 10 G. & J., 377; Ware vs. Richardson, 3 Md., 505; Phillip's Exe'r vs. Pearson, et al., 27 Md., 242.

Second. The appeal in this cause was taken on the 18th of January, 1864, and the record was not transmitted to this Court until after the 22d of April, 1868, more than four years after the appeal had been entered, and it does not appear that such delay was occasioned by the neglect or omission of the clerk, but on the contrary, it does appear that it was not from his neglect or omission. Hannon vs. the State, use of Robey, 9 Gill, 440; Contee vs. Pratt, 9 Md., 67; Dugan vs. Hollins, 11 Md., 41; Sample vs. Motter, 5 Md., 368; Mayor, &c., vs. Reynolds, 18 Md., 270; Code, Art. 5, secs. 29 and 30, Act of 1842, ch. 288; Act of 1864, ch. 322.

Should the Court, however, entertain the appeal, it is submitted on behalf of the appellees, that the decision of the Judge below ought to be affirmed for the following reasons, viz:

The auditor's accounts A and B, and third report dispose of the trust funds, and are the subject of this litigation. In account A the auditor gives preference to the claim of the appellant for $2,929.81, because he alleges it is entitled to be paid as a vendor's lien on the proceeds of the sale of parts of this real estate sold by the trustee.

The claim of the appellent as a lien, is founded on a joint and several bond, executed by the grantor and the appellant as his surety, to Thomas Postles, for the payment of $2,300, for which they agreed to confess judgment; it was assigned to Lockwood, and by him to the appellant. This bond does not refer to any real estate sold, nor show who is the principal debtor, but parol proof is offered for these purposes by affidavits taken before the auditor.

The appellant is not entitled to claim a vendor's lien, first: Because the real estate was sold and conveyed by the vendor, the creditor, to the vendee, the grantor of this trust, the vendor taking a bond with security for the purchase money, and there is no reference in it to any lien whatever. Bond vs. Kent, 2 Vernon, 281; Nairn vs. Prouse, 6 Vez. Jr., 752; 4 Kent's Comm., 153; Hummer vs. Schott, 21 Md., 310.

Second: Because, if any lien existed, the assignment of the debt given for the purchase money without any transfer of the lien, would destroy the lien; it cannot pass by implication or construction, only by express assignment and agreement.-- Dixon vs. Dixon, 1 Md., Ch. Dec., 220; Hayden vs. Stewart, 4 Md., Ch. Dec., 280; Schnebly & Lewis vs. Ragan, 7 G. & J., 120; Alderson vs. Ames & Day, 6 Md., 52; Watson vs. Bane, et al., 7 Md., 117.

Third Because the assignment was evidently made to be without recourse to the vendor's lien. It...

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4 cases
  • Brinsfield v. Mather
    • United States
    • Maryland Court of Appeals
    • March 2, 1934
    ...5 Md. 368, Marx, Ex'r, v. Reinecke, supra; State v. B. & O. R. Co., 117 Md. 289, 83 A. 166, or of both appellee and appellant, McGonigal v. Plummer, 30 Md. 422, Lockerman, Garn., v. Eastern Shore Trust Co., 146 Md. 126 A. 140, Forest Lake Cem. Co. v. Baker, 113 Md. 532, 77 A. 853, or of the......
  • Carrico v. Farmers & Merchants' Nat. Bank
    • United States
    • Maryland Court of Appeals
    • July 1, 1870 this respect, quite analogous to Gilman v. Brown, supra, and is not at all distinguishable, in principle, from Schwarz v. Stein and McGonigal v. Plummer, before referred to; and those cases must control this. We of opinion, therefore, the lien does not exist. Then, as to the second quest......
  • Forest Lake Cemetery of Prince George's County v. Baker
    • United States
    • Maryland Court of Appeals
    • June 22, 1910
    ... ... further insertions, and the inability of the clerk to make ... them in time. It was said in McGonigal v. Plummer, ... 30 Md. 422, that, where the delay in transmitting the record ... "seems to be equally attributable to appellee as to the ... ...
  • O'brien v. O'brien
    • United States
    • Maryland Court of Appeals
    • February 4, 2002 occur, Colleen's appeal was plainly premature and it should have been dismissed by the Court of Special Appeals. But cf. McGonigal v. Plummer, 30 Md. 422 (1869). We shall vacate the judgment of that court and direct that the appeal be dismissed. That will return the case to the Circuit C......

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