Standford v. Horwitz

• Decision Date: 23 July 1878
• Citation: 49 Md. 525
• Parties: THOMAS H. STANDFORD, JR. v. BENJAMIN F. HORWITZ, Administrator of David Davis.
• Court: Maryland Court of Appeals

49 Md. 525

THOMAS H. STANDFORD, JR. v. BENJAMIN F. HORWITZ, Administrator of David Davis.

Court of Appeals of Maryland

July 23, 1878

Appeal from the Circuit Court of Baltimore City.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BRENT, GRASON, MILLER and ALVEY, JJ.

T Alexander Seth, for the appellant.

The appellee is estopped from denying that the mortgage debt was the debt of Thomas H. Standford, Junior. Not only have we the solemn recitals of the deed, but the more solemn affidavit of his intestate. 2 Washburn R. P. 469; Shep. Touch. (Prest. Ed.) 53; Comstock v. Smith, 13 Pick 116.

As the notes only evidenced the debt, they were, as between the original parties, the notes of the principal, although signed in the name of the agent without words showing that he acted as agent; as it must have been known to the said Davis that Standford, Senior, was acting as agent. Sumwalt v. Ridgely, 20 Md. 114; Haile v. Peirce, 32 Md 332.

If they were the notes of Standford, Senior, they were not the notes of Standford, Junior, and there was a failure of consideration for the execution of the mortgage and under the Statute of Frauds it was void. Brown on Stat. Frauds, 387-408; Frank v. Miller, 38 Md. 450.

It is true that this mortgage is a contract under seal which imports a consideration where none is expressed. The consideration is clearly expressed to be the indebtedness of appellant to appellee. If the appellee is allowed to show by parol that this was not the consideration--simply to deprive appellant of the testimony of the only witness who knows the facts--the appellant should not be estopped from denying a total failure of consideration because the instrument happens to be sealed, especially in the face of the evidence that it is not his seal. If the seal or the signature to the mortgage is not the signing and sealing of the appellant, the purchaser under these proceedings acquires no title, and the sale should be rescinded, but if the signature and seal are those of the appellant, they were thus solemnly attached because of the recital that the mortgage was to secure the notes of appellant, and not of his father. The appellant has never promised to pay the debt of his father, and would not have so promised.

There is no evidence that Standford, Senior, acted other than as the agent of his son; and this court has expressly decided that an agent can testify under the Act of 1868, ch. 116, of which the Act of 1876, ch. 222, is a copy, so far as it applies to the question now before the court. Spencer v. Trafford, 42 Md. 1; Jones v. Jones, 36 Md. 457; Johnson v. Heald, 33 Md. 352.

The evidence under the remanded commission, so far as it is the simple identification of a paper that had in no way been referred to in the previous examination, was admissible, and clearly proved the agency. German Luth. Church v. Heise, 44 Md. 455.

The court erred in refusing to act on or grant appellant's petition of December 7th, 1877, because as the appellant's property was being used to pay certain promissory. notes, he had a right to ask their production for cancellation, else he might still be sued thereon, by any one in whose hands they have come, for a bona fide consideration; and the appellee is estopped from denying that such notes are outstanding. Boyd v. Parker, 43 Md. 201.

After the court had decided that the notes were the notes of Standford, Senior, and the debt his debt, it erred in ratifying the auditor's account, which charges the appellant with $151.62, balance due on mortgage debt. For conceding for the argument that Standford, Junior, pledged his property for his father's debt, he did not promise to pay any balance after the fund arising from the sale of the pledged property had been exhausted.

Benjamin F. Horwitz, for the appellee.

Miller J., delivered the opinion of the court.

The record in this case shows that on the 14th of August, 1867, a mortgage of leasehold property was executed, (as appears on its face,) by Thomas H. Standford, Junior, to David Davis, to secure the sum of $1680 and interest. The mortgage is in the usual form, reciting an indebtedness for this sum and that for this amount "the said Standford has passed his promissory note unto said Davis bearing even date with this instrument and payable three years after date, and also three interest notes of like date, each for the sum of $90, and payable respectively in one, two and three years from date." In May, 1877, after the death of the mortgagee, his administrator procured the passage of a decree for the sale of the mortgaged property, in accordance with the assent clause contained in the mortgage. The property was sold, and the auditor stated an account distributing the proceeds in payment of costs, commissions and the expenses of the sale, and then applied the residue to the payment in part of the mortgage debt, leaving a balance of $151.60 still due thereon. To the ratification of this account, Thomas H. Standford, Junior, filed...