Rappanier v. Bannon
| Decision Date | 18 February 1887 |
| Citation | 8 A. 555 |
| Parties | RAPPANIER v. BANNON. RAPPANIER v. PUMPHREY. JENKINS AND ANOTHER v. RAPPANIER. PUMPHREY v. RAPPANIER. |
| Court | Maryland Court of Appeals |
Four appeals in one record from circuit court, Anne Arundel county. In equity.
James Mackubin and Frank H. Stockett, for appellants.
James Revell and Michael Bannon, for appellees.
There are four appeals in this record, which will be disposed of in one opinion. They are so inseparably connected by the facts upon which each depends that we shall consider them together. The cases are singularly complicated by an unusual combination of circumstances; and the real questions presented for decision cannot be understood without a clear statement of the facts which have given rise to the controversies now before us for final adjudication.
By the will of William Jenkins, who died in August, 1866, all his estate, real and personal, except a few pecuniary legacies was devised to his wife, Anne Jenkins, for life, with remainder to his son, Daniel A. Jenkins, whom he left executor. Mrs. Anne Jenkins owned in her own right a tract of land called "Griffith's Lot," containing about 175 acres, which was devised to her by her father. The land of William Jenkins which was devised to his wife, Anne Jenkins, for life, and then to his son Daniel A. Jenkins, contained about 160 acres, and is described by the names "Pinkstone's Fancy" and "Trusty Friend." On the tenth of November, 1866, Anne Jenkins and her son Daniel A. Jenkins and wife executed a mortgage to Nathan Pumphrey for $5,000, evidenced by their notes aggregating that sum, and all to be paid three years after date, with interest payable annually, and notes therefor for $300 for each of said three years were given and recited in the mortgage as thereby secured, as well as the principal sum of $5,000. The mortgage was upon Griffith's lot, which belonged to Mrs. Jenkins absolutely, and also upon "Pinkstone's Fancy" and "Trusty Friend," which the mortgagors acquired by the will of William Jenkins. In the event of default in paying the principal sum when due on the promissory notes for the interest, the mortgagee, "Pumphrey, his heirs, and assigns," were clothed with power "to sell the said mortgaged premises at public sale, at such time and place as he or they may think fit, agreeably to the provisions of article 64 of the Maryland Code of Public General Laws," "the purchase money to be paid in cash, having given at least twenty days' public notice by advertisement in some newspaper published in Baltimore city, and such other notice as may be deemed necessary, of the time, place, manner, and terms of sale; and, in the event of a sale under the power hereby granted, the proceeds shall be applied to the payment of all claims of the said mortgagee, his representatives or assigns, under this mortgage, whether the same have matured or not." Until default, the mortgagors are to remain in possession and receive the rents and profits, and pay taxes, including tax on the mortgage debt. This mortgage was duly executed, acknowledged, and recorded. On the eleventh day of March, 1867, Anne Jenkins and Daniel A. Jenkins executed a mortgage to Thomas Cottingham upon the same property included in Pumphrey's mortgage, to secure a note of Daniel A. Jenkins for $1,200, with interest from date, and dated same day as the mortgage. A power of sale in the event of default was also given to the mortgagee, and there was a covenant to keep the property's improvements insured for the benefit and additional security of the mortgage. This deed was also duly acknowledged and recorded, and an affidavit of consideration was appended to this and the Pumphrey mortgage. On the seventh of May, 1868, Daniel Jenkins and wife mortgaged the same property, which was conveyed by the previous mortgages, to Samuel S. Linthicum, to secure $2,000, and interest thereon, in one year from date, with like power of sale as in the former mortgages. This mortgage was duly executed, and affidavit of consideration was duly made; but the mortgage does not appear to have been recorded until the twenty-eighth day of May; and in the mean time, on the ninth day of May, 1868, Daniel A. Jenkins and wife executed another mortgage upon the same property to Thomas Cottingham, Nathan Pumphrey, and Christian F. Rappanier, to secure to each of those persons the sum of $1,000, with interest annually, two years from date, a note for $1,000 being executed to each of said persons, and recited in the mortgage. In this mortgage the property is divided up into eight lots, described by courses and distances, with number of acres included in each being mentioned. A like power of sale to that in the others was put into this; and the mortgage was duly executed and recorded on the thirteenth of May, 1868.
On the first day of August, 1868, another mortgage, and the last one involved in this suit, was executed, by the same grantors as in the last two mortgages, to Horatio G. Lawrence, to secure $3,000, two years after date, with interest notes, four in number, of $90 each, falling due in 6, 12, 18, and 24 months after date. This mortgage not only included the property described in the first preceding mortgage to Thomas Cottingham, but also all the grantor's right to a farm called the "Chaney Farm," and further described in the mortgage. There was a power of sale in the event of default, and a covenant to keep buildings insured for mortgagee's further protection. This mortgage was also duly executed, with affidavit of consideration appended, and was recorded within two days after execution. Some time in 1867, Anne Jenkins, the widow of William Jenkins, and life-tenant of his real estate under his will, died intestate, leaving Daniel A. Jenkins, her son, and three grandsons, John T. Jenkins, William Jenkins, and James Mordicai Jenkins, the children of a deceased son, her only heirs at law; so that on her death Daniel A. Jenkins became one-half owner of Griffith's lot, and his nephews, above mentioned, owned the other half by descent from Anne Jenkins.
After all these mortgages had been executed, it transpired that William Jenkins died indebted to one Hercules R. W. Andrews in a large sum of money, being the balance due upon a promissory note for $15,000, dated the first day of April, 1864, payable to the order of Jenkins & Williams three years after date, with legal interest from date, which was by the firm of Jenkins & Williams indorsed in the life-time of William Jenkins to Hercules R. W. Andrews. On the twenty-first day of April, 1869, Andrews, by Thales A. Linthicum and J. J. Alexander, his solicitors, filed his bill in equity in the circuit court for Anne Arundel county, as a creditor of William Jenkins, against the heirs at law of William Jenkins, asking for a sale of the real estate of William Jenkins for the payment of his debt, and that of any other creditor who would come in and contribute to the payment of the costs of suit, the personal estate being alleged to be exhausted. This bill set out the several mortgages executed by D. A. Jenkins and his mother after the death of William Jenkins, and made the several mortgagees hereinbefore named parties defendant to his suit. The bill averred the balance due on the note upon the nineteenth of August, 1868, to be $7,196.97, after deducting credits, with interest from that day. Upon the same day that the bill was filed, Michael Bannon filed a written order in the case directing his name to be entered as solicitor for all the defendants except Daniel A. Jenkins and wife, which appearance was accordingly entered without subp na actually issuing for them. Subp na did go for D. A. Jenkins and wife, and was returned "summoned," and Judge Tuck afterwards appeared as their solicitor. Beyond the simple filing of his bill, the complainant took no further proceeding in his suit by way of pressing the same. On the second day of October, 1869, an agreement was filed in the cause by which it appeared the complainant's claim was provided for satisfactorily to him, and the suit was no longer to be continued. The agreement is dated the nineteenth day of August, 1869, and is signed by Thales A. Linthicum as solicitor for complainant, and by Michael Bannon as solicitor for all the defendants, including Daniel A. Jenkins and wife.
That agreement recites in substance that, whereas the complainant Andrews, had filed his bill against Daniel A. Jenkins, sole devisee of William Jenkins, the heirs at law of William Jenkins, and the incumbrancers of the property, for a sale of the real estate of William Jenkins for the payment of complainant's claim against William Jenkins, for which the land of William Jenkins was liable to him in priority of the defendant's incumbrancers; that whereas, on the twenty-second day of June, 1869, Daniel A. Jenkins and wife, William A. Jenkins, John J. Jenkins, and James Mordicai Jenkins had sold and conveyed to a certain Helena Hoover, wife of George W. Hoover, for the sum of $11,000, a part of the real estate of William Jenkins, deceased, and a part of the real estate of Anne Jenkins, deceased, devised her by her father, and to which the grantors were entitled as her heirs at law,--that, for the purpose of paying the ...
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