McNiece v. Eliason

• Decision Date: 16 November 1893
• Citation: 27 A. 940,78 Md. 168
• Parties: MCNIECE v. ELIASON ET AL., (TWO CASES.)
• Court: Maryland Court of Appeals

27 A. 940

78 Md. 168

MCNIECE v. ELIASON ET AL., (TWO CASES.)

Court of Appeals of Maryland

November 16, 1893

Appeal from circuit court, Kent county.

Creditors' bill, aided by injunction, by William McNiece against Thomas Eliason, Jr., and others. From orders sustaining a demurrer to the bill and dissolving a temporary injunction complainant appeals. Affirmed.

Argued before ROBINSON, C.J., and BRISCOE, BRYAN, BOYD, McSHERRY and FOWLER, JJ.

H. W Vickers, Hope H. Barroll, and W. Frank Tucker, for appellant.

James A. Pearce and Richard D. Hynson, for appellees.

FOWLER J.

The appellant, William McNiece, filed a creditors' bill in the circuit court for Kent county on the 30th of November 1892, suing for himself and all other creditors of Norris Bernard, deceased, in the usual form, making the administrators and heirs at law of the deceased debtor, and also Thomas W. W. Eliason, Jr., the appellee, parties defendant. The bill alleges that said "Bernard was in his lifetime indebted to the appellant and other persons in large sums of money which were unsecured, and that there was an outstanding overdue mortgage which the said Bernard had executed to secure the payment of two single bills amounting to nine thousand dollars, and that by the terms of said mortgage the mortgagee, who is the appellee here, might at any time proceed to sell the real estate therein mentioned. In order to prevent a sale, which the appellant alleges would result in injury to him and the other unsecured creditors of the mortgagor, he tenders himself ready and willing to satisfy and pay unto the said mortgagee"the mortgage debt and interest, and asks that the mortgagee may be required to show cause why he should not accept the same; and he prays also that he may be subrogated to the rights of the mortgagee under the mortgage. To this bill the appellee demurred on the ground that, the appellant being only a general creditor, he had no legal right to redeem or pay off the mortgage debt, and be subrogated to the rights of the mortgagee; and this demurrer was sustained by the court below. The first question, however, is presented by the motion to dismiss the appeal. This motion is based upon the ground that the order appealed from is not in its nature a final order; but we think it is clearly of that character. The object of the bill was to secure a sale of the mortgaged real estate under the creditors' bill for the benefit of all the creditors, after paying the mortgage debt, and as a means to that end the prayer was that the mortgagee should be required to accept and that the appellant might be allowed to pay the same. In no other way could the object of the bill be attained, for, if the estate mentioned in the mortgage should be sold under the power therein contained, the bill might as well have been dismissed, because its main--indeed, its whole--object was to secure a decree for a sale of said property. In a word, the appellant claimed the right to redeem and to sell the land; but by the order appealed from it was declared that such rights did not exist. It is true this order does not in terms dismiss the bill, but that was its necessary result. It denied the relief sought, and there was no other course open to the appellant. Hazlehurst v. Morris, 28 Md. 71; Association v. Buck, 64 Md. 343, 1 A. 561. To proceed further with the creditors' bill, as was suggested by the appellee, would have been altogether fruitless, for in effect it had been finally decreed by the court below that the appellee, and not the appellant, had the right to sell. The motion to dismiss will therefore be overruled.

Was the demurrer properly sustained? We think it was. The questions presented by the demurrer to the creditors' bill and by the pleadings in the injunction case (being two appeals argued before us by agreement of counsel) are: First, whether the appellant, who is a general, unsecured creditor of the deceased mortgagor, has a legal right to redeem and be subrogated; and, secondly, if so, has he properly exercised that right? The conclusion we have reached in regard to the first question renders it unnecessary to consider the second in regard to the appellant, but we will presently consider it as applied to the administrators of the mortgagor. There can be no doubt upon the general question here involved. The doctrine is thus expressed by Mr. Pomeroy, (Eq. Jur. § 1212:) "The payment must be made by or on behalf of a person who has some interest in the premises, or some claim against other parties which he is entitled in equity to have protected." And in 2 Story, Eq. Jur. § 1023, we find a full statement of this principle. It is there said that the equity of redemption is not only an interest in the land in the hands of heirs, devisees, assignees, and representatives of the mortgagor, but it is also in the hands of any other persons who have acquired any interests in the land mortgaged, by operation of law or otherwise, in priority of title. All such persons, says Judge Story, have a clear...