Nally v. Long

• Decision Date: 30 June 1881
• Citation: 56 Md. 567
• Parties: EZRA NALLY v. SIMON LONG, and others.
• Court: Maryland Court of Appeals

56 Md. 567

EZRA NALLY v. SIMON LONG, and others.

Court of Appeals of Maryland

June 30, 1881

APPEAL from the Orphans' Court of Washington County.

The case is stated in the opinion of the Court.

The cause was submitted to BARTOL, C.J., GRASON, MILLER, ALVEY ROBINSON, IRVING, RITCHIE and MAGRUDER, J.

Edward Stake, for the appellant.

H H. Keedy, for the appellees.

BARTOL C.J., delivered the opinion of the Court.

Under the Acts of 1866, ch. 81, and 1878, ch. 336, (Revised Code of 1878, Art. 50, secs. 204, 205,) the real estate of Jacob Newman, deceased, being less than $2500 in value, was sold in accordance with a decree of the Orphans' Court of Washington County, passed on the 14th day of August 1877, at the suit of creditors of the deceased. The sale was reported and ratified, and a part of the purchase money was paid to the trustees, and was in their hands for distribution. The principal claims filed were,

1 st. A mortgage for the sum of $975 from Jacob Newman to John Reichard, dated May 6th 1864, not recorded until February 22nd 1868. This mortgage was assigned to Peter Long April 1st 1874, and by Peter Long to Ezra Nally, the appellant, October 30th 1877.

2 nd. A single bill for $353.62 payable to the same John Reichard, dated April 1st 1874, made by Jacob Newman as principal, and Simon Long and Jonathan Slifer as his sureties. This single bill was paid by Simon Long, one of the sureties, September 15th 1880.

3 rd. A note for $73.25 held by Dr. Wm. H. Grimes against Jacob Newman, dated February 19th 1876.

4 th. A judgment rendered by a justice of the peace, June 19th 1875 against Jacob Newman for $33.01 debt, and 95 cents costs, in favor of C. Downs, and by him assigned to Joseph R. Long.

The case was referred to the auditor, who stated an account, by which, after allowing expenses and commissions, there appeared a balance of $514.04 which was all distributed to the appellant, assignee of the mortgage, in preference to, and to the exclusion of, the other claims. Simon Long, Slifer and Dr. Grimes filed exceptions to the ratification of the auditor's account upon the ground that the mortgage was not entitled to priority.

An agreed statement of facts was filed, whereby it was admitted

1st. That the mortgage was not withheld from record, with any fraudulent intent.

2nd. That John Reichard, the holder of the note for $353.62 with Simon Long and Jonathan Slifer as sureties, * * is the mortgagee named in the mortgage given on the 6th day of May 1864.

3rd. That Long and Slifer, the sureties on said note, Dr. Grimes, and Joseph R. Long who are creditors subsequent to the mortgage, had no notice of the existence of the mortgage, until the filing of the bill of complaint in this cause.

4th. That Simon Long has paid the note of $353.62 to John Reichard on the 15th of September 1880.

Upon the hearing of the exceptions, the Orphans' Court delivered an opinion, and on the 29th day of September 1880, "ordered, adjudged and decreed that the distribution of the sum of $514.04 to Ezra Nally in part payment of the mortgage and interest, amounting to $877.82 in the audit, be and the same is hereby set aside, rejected and made void, and they further ordered that the sum of $514.04 shall be distributed pro rata among the creditors of Jacob Newman, deceased, as follows, to wit, to Ezra Nally on his mortgage; to Dr. Grimes on his note; Simon Long and Jonathan Slifer as sureties for said Jacob Newman on a note dated April 1st 1874, which said Simon Long has paid to John Reichard the payee therein; to Joseph R. Long on magistrate's judgment unrecorded, &c., &c." And the case was "referred to the auditor to make distribution of the said sum of $514.04, according to this opinion and decree, &c."

From this order the present appeal was taken, and the first question arises upon the motion to dismiss the appeal. The reason assigned in support of the motion is that the order from which the appeal has been taken is merely interlocutory, and not in the nature of a final order or decree.

We have referred to the cases cited in the appellees' brief, and also to Snowden vs. Dorsey, 6 H. & J., 114; Thompson vs. McKim, 6 H. & J., 302; Hagthorp vs. Hook, 1 G. & J., 270; Clagett vs. Crawford, 12 G. & J., 275; Hill vs. Reifsnider, 39 Md., 431; and Meyer vs. Stewart, 48 Md., 425; in each of which was involved a question somewhat similar to the one here presented. An examination of the decided cases has satisfied us that the order of the Orphans' Court is not merely interlocutory, but is in its nature a final order. It is in form a judgment or decree, deciding and settling the very matter in controversy between the parties, and determining the question of right in issue in the cause.

From such an order or decree on appeal properly lies. Thompson vs. McKim, 6 H. & J., 328. The motion must therefore be overruled.

The only question presented by the record is the proper distribution of the fund in the hands of the trustees.

The mortgage having been placed upon record after the lapse of the time prescribed by law, and without any order or decree of a Court of Chancery for that...