Parsons v. Urie
| Decision Date | 01 November 1906 |
| Citation | 64 A. 927,104 Md. 238 |
| Parties | PARSONS et al. v. URIE et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Kent County; Edwin H. Brown, Judge.
Suit by Harry B. Parsons and others against John D. Urie and others. From the decree, plaintiffs appeal. Reversed and remanded.
Argued before McSHERRY, C.J., and BRISCOE, BOYD, SCHMUCKER, JONES and BURKE, JJ.
Hope H Barroll and James P. Gorter, for appellants.
Wm. W Beck and Richard D. Hynson, for appellees.
Isaac Parsons devised a farm, known as "Mt. Pleasant," to Harry B. Parsons, Gracie N. Parsons, William G. Parsons Louis B. Parsons, and Mary E. Morris, wife of J. Elwood Morris. The testator directed that his real estate be charged with any deficiency in his personal estate necessary to pay his debts, and, as Gracie N., William G., and Louis B. Parsons were then minors, a proceeding was instituted in the circuit court for Kent county, wherein Harry B. Parsons was authorized, on behalf of the infants, to unite with the adults in the execution of a mortgage for the sum of $1,522.35; that being the amount chargeable on the farm, together with interest thereon, and costs that were incurred. On January 2, 1894, a mortgage was given for said sum to Thomas W. Eliason, Jr., by Harry B. Parsons, in his own right and as trustee for the three minors, and by Mr. and Mrs. Morris. It contained a power of sale and covenants by Harry B. Parsons, trustee, for the three infants, that they would pay one-half, by said Parsons individually that he would pay one-third, and by Mr. and Mrs. Morris that they would pay one-sixth, of the mortgage debt and interest as stipulated. No interest was paid on the mortgage, and on the 18th of June, 1901, $1,500 of it was assigned to John D. Urie, committee, and the remainder ($357.89) to him individually. Before this controversy, Gracie N. Parsons and William G. Parsons had become of age. The former had married John F. Clark, and Mrs. Morris had died, leaving surviving her an infant child, E. Romie Morris, and her husband, J. Elwood Morris. On December 17, 1901, W. W. Beck and Richard D. Hynson purchased the one-third interest of Harry D. Parsons in the farm, under an execution issued on a judgment against him and his father. The interest not being paid, Mr. Urie advertised the property for sale on February 1, 1902, under the power contained in the mortgage. Efforts were made to induce him to assign the mortgage on payment of the amount due, including accrued costs; but he declined to do so. On the day of sale Mr. Clark, representing his wife, Harry B. and William G. Parsons, together with several friends, called upon Mr. Urie and tendered him $2,025, the amount he claimed to be due. He asked if they wanted the mortgage released, and one of them said, "No," they wanted it assigned, to which Mr. Urie replied that he would not do that, and declined to receive the money. They reported what had occurred to Mr. Barroll, the attorney who represented the mortgagors, and he instructed them to again tender the money, without asking for an assignment or anything else. They did so, and Mr. Urie testified about that interview as follows: That shortly before the hour of sale J. R. Usilton, accompanied by Harry B. Parsons and others, again made him a tender of the $2,025, "saying that he did not want any release or any assignment of the mortgage; that he simply wanted me to take the money and make no sale of the farm." He asked for a few minutes to consider the matter, and said he then saw Messrs. Hynson and Beck, who were anxious to have the property sold in order to realize on their interest, as the
When the sale was about to take place at the courthouse door, Mr. Barroll went there with his clients and tendered the money. There is some conflict between the witnesses as to what then occurred. Mr. Urie testified that he told Mr. Barroll that he would sell the property unless they agreed that the mortgage should be released; that Mr. Barroll replied: He said he repeated once or twice that it was understood that he was to release the mortgage, to which Mr. Barroll assented, and he (Urie) called the clerk and released the mortgage in Mr. Barroll's presence. Mr. Barroll testified that he tendered the money to Mr. Urie, told him he must not sell the property, and that he asked for no assignment or anything else; that Mr. Urie said he would release the mortgage, and "I replied with some emphasis that I did not care what he did, that whatever he did would have no effect, but there was his money." Others present at the courthouse gave their versions of what took place and, while there is some difference in their recollections, there can be no doubt Mr. Barroll never gave his consent to any action by Mr. Urie that would have the effect of permanently relieving the property from the lien of this mortgage. Mr. Urie had emphatically refused to accept the money unless he released the mortgage, as he testified himself, and, when Mr. Barroll tendered him the money, he, in effect, made the same statement to him. The sale was about to take place, and, although the money was then tendered Mr. Urie, he again refused to accept it unless the mortgage was released. It is true he did release it in the presence of Barroll, but it cannot be properly said that he gave his consent to that; on the contrary, Barroll warned him it would have no effect
The money paid to Mr. Urie had been borrowed by Harry B. Parsons, William G. Parsons, and Mrs. Clark from or through Mr. Barroll, and subsequently a judgment was given to the Second National Bank of Chestertown for the amount, which it still holds. Harry B. Parsons, Mr. and Mrs. Clark, William G. Parsons, and Harry B. Parsons, trustee, filed this bill against John D. Urie and Louis B. Parsons, who was still a minor, and subsequently Mr. Morris and his infant child were made defendants. The prayers of the bill are: (1) That a decree be passed for the sale of the real estate; (2) that an order be passed annulling and vacating the release of the mortgage; (3) that a decree be passed for said sale under the terms and conditions named in the mortgage, and that the amount due under the mortgage be paid to the plaintiffs to reimburse them for the amount they paid Urie; (4) that the proceeds of sale be distributed among the parties entitled thereto, according to their respective rights and interests; and (5) for general relief. The lower court decreed that the release be annulled, vacated, and revoked as to the undivided one-sixth of Louis B. Parsons, and also as to the one undivided sixth formerly owned by Mrs. Morris, but as to the other mortgagors that the release was operative and effective; that Harry B. and William G. Parsons and Mrs. Clark be subrogated and substituted for each of said one-sixths, which the decree fixed at $337.50, with interest from February 1, 1902. The decree then required each of those sums to be paid by March 15th, together with one-half of the costs of this suit, and in default thereof authorized the sale in the usual form. From that decree this appeal was taken by the plaintiffs.
1. Messrs. Hynson and Beck, who now own the undivided third in the property which formerly belonged to Harry B. Parsons were not made parties to the bill. They were, however, consulted by Mr. Urie before he declined to accept the money, and he unquestionably adopted the course he did for their supposed benefit, as his testimony shows, and they appeared as solicitors for him in the court below, as well as in this court. They filed a demurrer in the name of Urie, which was overruled, and then a disclaimer was filed by Mr. Hynson for Mr. Urie. Both of them were witnesses in the case, and they were unquestionably the real defendants, although not parties to the bill. They not only had a full and thorough opportunity presented for making all the defenses at their command, but they did in fact, as solicitors, conduct and control the defense. They will, therefore, be bound by the decree in this case as fully as if they were formal parties to the bill, as it has long since been held by this court that the term "parties" "includes those who are directly interested in the subject-matter of the suit, knew of its pendency, and had the right to control and direct or defend it." McKinzie v. B. & O. R. R. Co., 28 Md. 174. The subject has been further considered by this court in Parr v. State, 71 Md. 235, 17 A. 1020, Albert v. Hamilton, 76 Md. 304, 25 A. 341, Fetterhoff v. Sheridan, 94 Md. 454, 51 A. 123, and other cases; but in none of them did the parties held to be bound take such active parts throughout the controversies as these gentlemen did....
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