Subers v. Hurlock

• Decision Date: 06 December 1895
• Parties: SUBERS v. HURLOCK.
• Court: Maryland Court of Appeals

33 A. 409

82 Md. 42

SUBERS v. HURLOCK.

Court of Appeals of Maryland

December 6, 1895

Appeal from circuit court, Kent county, in equity.

Bill by Burris Subers against Samuel Hurlock to enforce indemnity under a mortgage executed to defendant's assignor (plaintiff's grantor) to indemnify such grantor in case remainder-men, on attaining majority, failed to confirm the assignor's deed in fee of land in which he held only a life estate, by executing a deed of their interests. From a decree for defendant, plaintiff appeals. Affirmed.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, PAGE, and BOYD, JJ.

J. B Brown and E. H. Brown, for appellant.

James A. Pearce and Samuel Hurlock, for appellee.

FOWLER J.

In the year 1854 James Hazle, of Queen Anne county, conveyed to Charles W. Hendrix an undivided half interest in a farm in that county, by deed purporting to be a conveyance in fee simple; the said grantee at the same time taking from certain other persons a deed in fee of the remaining interest therein, it being conceded that the last-named grantors had a right to convey. But when Hazle made the deed above mentioned he had only a life interest in the undivided half conveyed by him, the remainder in fee being in his three children. In order to indemnify the grantee against loss by reason of his purchase, Hazle executed to Hendrix a mortgage of indemnity on a tract of land in Kent county. By several mesne conveyances, Burris Subers, the appellant, became, and is now, the owner of the land in Queen Anne county which was in part conveyed by Hazle to Hendrix, and Samuel Hurlock, the appellee, likewise became the owner of the land mortgaged in the manner above mentioned. For the purpose of this case it has been agreed that the appellant has been actually evicted by the children of said Hazle, who, he being dead, are the real owners in fee of the undivided interest conveyed by their father. By reason of this eviction the appellant claims indemnity and remuneration of said Hurlock, by virtue of said mortgage. This claim is resisted by the appellee generally and because the statutory plea of limitation is a bar thereto. It is also contended that this claim is stale, and without merit, by reason of appellant's laches, which will prevent any recovery by him against the appellee.

The only question we need consider is, conceding no proceedings were taken on the mortgage until more than 20 years after the youngest of said children came of age, whether the statute of limitations constitutes a bar to the claim now made. The answer to this question depends upon another, namely, when did the cause of action accrue, and the statute begin to run? In order to answer this question, we must examine the mortgage, or rather that part of it in which the parties themselves declare what is the true intent and meaning thereof. The language used is as follows: "Provided always, and it is the true intent and meaning of these presents, and of the said parties hereunto, that if the said Joseph Benjamin Hazle, James Hazle, and Alice Ann Hazle do or shall, when and so soon as they shall have severally attained the age of twenty-one years, at the cost and charges of the said James Hazle, convey and assign unto the said Charles W Hendrix, his heirs and assigns, by such deeds. and conveyances as the said Charles W. Hendrix, his heirs or assigns, or his or their counsel learned in the law, shall approve of, all their rights, title, interest, and estate in and to the said lands and real estate contained in the said deed from James Hazle to the said Charles W. Hendrix, and hereinbefore referred to, and recorded among the land records of Queen Anne's county, without any consideration to be paid to the said Joseph Benjamin Hazle, James Hazle, and Alice Ann Hazle for so doing, and also if and in case the said James Hazle, his heirs, executors, or administrators, do and shall in the meantime, and until the said Joseph Benjamin Hazle, James Hazle, and Alice Ann Hazle shall have executed such conveyance as aforesaid, and delivered the same, save harmless, defend, keep harmless, and indemnify the said Charles W. Hendrix, his heirs and assigns, executors and administrators, and his and their goods and chattels, lands and tenements, and the said tract or parcel of land and premises (an undivided half part, as aforesaid) so to be conveyed by the said Joseph Benjamin Hazle, James Hazle, and Alice Ann Hazle to the said Charles W. Hendrix as aforesaid, and the rents, issues, and profits thereof, from all claims and demands to be made thereto by or on the part and behalf of the said Joseph Benjamin Hazle...