Banks v. McClellan

Weisel, J., delivered the opinion of this Court. The complainant, Eliza A. McClellan, the appellee in» this Court, claims as assignee of her brother, William W.. McClellan. The subject matters of the assignment are : 1st.

All the claim, interest and benefit of the assignor-in the sum of thirty-three hundred dollars in Baltimore City stock, deposited with Messrs. Brown and Bruñe, attorneys of Henry Y. Ward, to whom the assignor sold certain real estate in Baltimore, on the corner of Baltimore- and Charles streets, on which Banks, the appellant, held a mortgage, and claimed an amount, which was disputed ;. the said stock for $3,300 being withheld by Ward, the-purchaser, to abide the determination of said dispute, and the assignee undertaking to satisfy the said claim of the mortgage as it may be legally or equitably determined. 2nd. All the claim of the assignor against said Banks for or on account of the value of a yearly rent of one hundred, dollars, conveyed by him aüd wife to said Banks by deed of the 28th of May, 1841, and all the agreements between them concerning said rent, and relating to the claim or right of the grantors to have the same reconveyed to him, the said McClellan, upon his paying a certain sum for so-much in value lent to him by Banks, for which said conveyance was meant only as a security. This property is-on Bank lane, in said city, and particularly described in the deed of said McClellan and wife to said Banks, exhibited with the bill and marked Exhibit E, No. 2. 3rd.

All the right, title, claim, interest and estate, legal and equitable, of the assignor, in and to, and all his right ⁷⁹ under an agreement with, said Banks for a reconveyance and release of the rent and reversion of a piece of ground in said city, on Baltimore street, near Green street, leased by said Banks to John T. Purcell, and to and in the rent reserved on said lease, and the reversion of and in the ground; the said assignee (the complainant) to satisfy said Banks the debt due to him for which said property was originally mortgaged by Catharine McClellan. The consideration of this assignment, besides the undertakings by said Eliza to pay said mortgage claims, was a conveyance by her to said William of certain leasehold property in the city of Baltimore, executed a short time before said assignment to her, viz: on the 9th of June, 1859, and the said assignment was made without any recourse whatever to said William W. McClellan, his heirs, executors or administrators. The Record contains written evidence that the property out of which the lease to Purcell was carved, and also the reversion in the portion covered by that lease, (which is the third subject matter of the assignment,) were to he reconveyed to William W. McClellan, upon payment of the money and interest thereon, to secure which said property was originally mortgaged by Catharine M. McClellan. The appellee, as assignee of the equity of redemption, is entitled to the aid of a Court of Chancery to redeem said property by paying the mortgage debt and simple interest thereon, or by bringing the same into Court to be paid to the said Banks.

This she proffers in the bill to do, and prays for its reconveyance to her. In order to extricate the $3,300 city stock held on deposit by Messrs. Brown & Bruñe, to indemnify Ward, the appellee undertakes by the hill to litigate with Banks touching the amount due him on his mortgage on the property at the corner of Baltimore and Charles streets. As by the terms of the assignment to her, and as part of ⁸⁰ its consideration, she engaged to pay -whatever might he found due on that mortgage, we think she can maintain her position in a Court of Equity for this purpose.

That claim is a lien upon the city stock assigned to her, and its true amount was a matter of controversy. She alleges that the consideration of the mortgage was usurious, and that the sum claimed by Banks should be purged of the usury and thereby largely reduced, as well as by deductions for certain charges for taxes, for which the mortgagor was not bound. To reduce it still further, she claims an account touching the transaction which forms the second subject matter of the assignment to her, the conveyance of the property on Bank lane, which, it is alleged in the bill, was intended as a mortgage between her brother and Banks, but which the latter, in fraud of his agreement, insisted on treating as an absolute conveyance, and after-wards sold and conveyed the property to a third party. The consideration of these questions involves the exceptions by the defendant below to the competency of William W. McOlellan as a witness, and the admissibility of his proof; and also the objection urged in the argument to the ability of the complainant to maintain this suit in her own name as assignee of these subjects of contest.

We regard William W. McOlellan as divested of all interest in the subjects in controversy, by the assignment to his sister and its terms, and therefore competent to be a witness for her, on the authority of Crawford vs. Brooke, 4 Gill, 217 . Pegg vs. Warford, 7 Md. Rep., 603. Reynolds vs. Manning, 15 Md. Rep., 518, 522. Nat.

Fire Ins. Co. vs. Crane, 16 Md. Rep., 294 . We also regard these matters of the assignment as not unmixed choses in action for the payment of money, and therefore as not embraced within the