Bond v. Dorsey

Yellott, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Carroll County, sitting in Equity. The bill of complaint was filed by the administrator of Henry Bussard; and it is alleged in said bill and shown by the proof in the cause, that William H. B. Dorsey, being indebted to the Central National Bank of Frederick City on two promissory notes, with the said Henry Bussard as one of his endorsers, did, on the 2nd day of October, 1876, execute a mortgage to said bank as security for the liquidation of said indebtedness. The land described in said mortgage consists of a tract of about forty acres ; of which said tract eight acres and a fraction are situate in Frederick County, and the remaining portion in Carroll County.

This land belonged to the appellee, Fannie Y. E. Dorsey, who was the wife of the said William H. B. Dorsey, and who joined with her ³¹² husband in the execution of the mortgage. Subsequently, but on the same day, the said Dorsey and wife executed another mortgage of the same property to Lewis F. Detrick, of Baltimore City, in which is a recital mentioning the existence of the first mortgage and thus recognizing its priority. On the 9th day of November, 1876, Dorsey and wife executed a mortgage of the same property to The Maryland Fertilizing and Manufacturing Company. On the 14th day of May, 1878, the first mentioned mortgage was assigned, by the Central National Bank, to the said Henry Bussard, he having paid the notes for which this mortgage was intended as security.

The said Henry Bussard held another mortgage executed by John J. Molesworth, of Frederick County, and recorded in the clerk’s office of said county. As shown by the testimony of Molesworth, the money secured by this mortgage was paid, on or about the 17th of May, 1878, to the mortgagee at his house in Carroll County, at which time he promised to enter a release on the record in Frederick County. On the 21st of May Henry Bussard went to Frederick City ; and it is contended by the plaintiff’s solicitor that he went for the purpose of releasing the mortgage executed by Molesworth. The mortgage assigned to him by the bank, having been recorded in Frederick County, on the 27th of May, 1878, soon after his return from Frederick, he sent the same mortgage, with the assignment thereon-, to the Clerk of the Circuit Court for Carroll County to be there recorded. ' It was subsequently discovered that, while on his visit to Frederick City, he had not released the mortgage from Molesworth, but had released the mortgage executed by Dorsey and wife to the bank and assigned to him, which mortgage had not then been, and has never since, been paid.

It is contended by the appellant that this release was made by mistake ; and this question must now be determined by the proof in the cause. ³¹³ The evidence adduced on the part of the plaintiff seems-to be strong enough to remove all reasonable doubt with reference to the occurrence of a mistake in making- the-entry of a release on the record. It is not to be presumed that Mr. Bussard intended to release a mortgage which had never been paid. And it is difficult to suppose that, after executing a release in Frederick County, he would subsequently send the same mortgage to Carroll County to be there recorded. But it is easy to believe that he intended to release the mortgage from Molesworth, which had been paid and which was afterwards released by his administrator.

Such surmises would, of course, avail nothing unless supported by proof. But the testimony of' witnesses, who are not contradicted, is so strong as to show clearly that Mr. Bussard did not intend to release the mortgage assigned to him by the bank. One of the witnesses says, that in March, 1880, the appellee, Fannie Y. E. Dorsey, said to Henry Bussard in her presence, that-it was a mistake, and offered to take him to Frederick in her carriage and have the mistake rectified. Another witness-says, that she heard Mr. Bussard tell Mr. Ross, his attorney, that he • had intended to release the mortgage from Molesworth and had executed the release of the other mortgage by mistake.

These two witnesses are the daughters of Henry Bussard, and may be interested in his estate ; but they are ,pf high respectability, and their testimony, so far from being contradicted, is corroborated by that of other persons who have no interest in the matters in controversy. The mother of William H. B. Dorsey says, that she heard the appellee, Fannie, offer to take Mr. Bussard in her carriage to Frederick, and he said he was too infirm to go, and expressed his apprehension that he would never be able to correct the release. Mr. Bussard 'died very soon afterwards at the age of eighty-two years. This testimony is strongly corroborated by that of Charles W. Ross, who says, that “ Mr. Bussard claimed that the ³¹⁴ release made by him of the Central Bank mortgage, which had been assigned to- him, was an error ; that he intended •to release a mortgage given him by a man of the name of Molesworth.” Mrs. Dorsey, the appellee, was present at ■this