Stewart v. McCadden (State Report Title: Stewart v. McCaddin)
| Decision Date | 08 January 1908 |
| Parties | STEWART v. McCADDEN. [*] |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court No. 2 of Baltimore City; Thos. Ireland Elliott, Judge.
Bill by Hyland P. Stewart, trustee, against James McCadden, to foreclose a mortgage. From an order denying a motion to dissolve an order enjoining a sale, obtained on defendant's petition, complainant appeals. Appeal dismissed.
Argued before BOYD, C.J., and PEARCE, SCHMUCKER, and BURKE, JJ.
Laurie H. Riggs, for appellant.
S Gross Horwitz, for appellee.
On the 7th of February, 1906, James McCadden executed and delivered to Hyland P. Stewart, trustee, a mortgage upon certain property situated in Baltimore city to secure a loan of $4,000. This sum was payable in three years from the date of the mortgage, and was to bear interest at the rate of 6 per cent. per annum, payable half yearly. The mortgage contained an assent by the mortgagor to the passing of a decree for the sale of the mortgaged property, in accordance with sections 720 to 730, inclusive, of Acts 1898, pp. 514-517, c. 123. It also provided that in case of any default being made in the payment of the mortgage debt, principal, or interest, in whole or in part, at the time or times limited and mentioned for the payment of the same, or in case of any default being made in any of the covenants, or conditions of the mortgage, then the whole mortgage secured should be deemed due and payable, and the mortgaged property might be sold by the trustee named in such decree as might be passed under the assent above mentioned. The mortgagor covenanted to pay, when legally payable, all ground rents, taxes, assessments and public charges, and dues levied or assessed, or to be levied or assessed, on the mortgaged property. One piece of property embraced in the mortgage was sold by the mortgagor, and the mortgage was released as to that part, and at that time $1,000 was paid on account of the mortgage debt. On the 20th of April, 1907, the mortgagee filed a petition in circuit court No. 2 of Baltimore city, alleging that the mortgagor had made default in the payment of interest on the debt secured by the mortgage, and also in the payment of taxes on the property, whereby he alleged that, under the terms of the mortgage, the entire mortgage debt had become due and demandable. He filed the original mortgage with the petition and prayed that a decree might be passed for the sale of the two remaining lots of said mortgaged premises in accordance with the assent of the mortgagor contained in the mortgage. On the same day the court passed a decree for the sale of the property, and appointed Hyland P. Stewart, trustee, to make the sale. On the 10th day of May, 1907, the mortgagor filed an answer to this petition, in which he denied that there has been any default made by him in the payment of the interest as alleged, and stated that on the 9th day of April, 1907, he had tendered to the mortgagee a certified check of $90 in payment of interest then due, which the mortgagee had refused to accept. He further stated that on April 9, 1907, he paid the taxes for the year 1905 on certain property mentioned in the mortgage, and that on June 6, 1906, he paid the taxes for 1905 on certain other property included in the mortgage, and that on January 24, 1906, he paid taxes for the year 1906 on both pieces of the property included in the mortgage, and that on April 25, 1907, he had paid taxes on the mortgaged property for the year 1907. He therefore alleged that there was no arrearage of taxes upon any of said property conveyed to secure said debt. He then alleged that neither the principal nor the interest was then due, except the interest which he had tendered in the manner stated in his answer, and that the trustee had no right whatever to sell the mortgaged property or foreclose the mortgage as prayed for in his petition, or as provided by order of court, passed thereon on the 20th day of April, 1907. He filed with his answer the certified check referred to, which he alleged he had tendered to the mortgagee, and also the tax and water bills showing that they had been paid on the date mentioned. He asked the court to rescind its order of the 20th of April, 1907, and to dismiss the petition of the mortgagee upon which the order was passed. He then filed a petition in which he refers to and reiterates the allegations of his answer, and prayed that the trustee may be enjoined from selling the mortgaged property under the decree of April 20, 1907, or from foreclosing the mortgage, or proceeding in any manner with the foreclosure thereon. The court ordered the injunction to issue, upon the filing by the petitioner of an approved bond in the penalty of $ 2,000. An approved bond was filed, and the injunction was accordingly issued. On June 19, 1907, the trustee filed an answer to the appellee's petition for an injunction. In this answer are stated with particularity the defaults of the appellee under the mortgage, and all the equities of the petition relied upon by the mortgagor for an injunction were directly denied. This answer, which was under oath, stated that at the time of the...
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