Brawner v. Watkins

Grason, J., delivered the opinion, of this Court. On the 26th October, 1850, Lyne Shackelford executed a mortgage to Gwyn, Reid & Taylor, to secure the payment of his note to them for $2,364.37. On the 6th May, 1853, they obtained a decree, on the equity side of the Circuit Court for Charles county, for the' sale of the mortgaged premises for the sum of $1,583.77, the balance then due upon the mortgage. Subsequently to the date of the decree, Thompson, Stewart and Mathews endorsed a note for Shackleford to Walter Mitchell for the sum of $1,750, and with the money thus raised, Shackelford’s indebtedness to Gwyn, Reid & Taylor was paid, and the mortgage and decree were assigned to Thompson, Stewart and Mathews, for the purpose of securing and indemnifying them as such endorsers; and on the 13th December, 1853,' Shackelford executed a mortgage to them of the same premises, for the purpose of fully securing and indemnifying them against their liability as said indors•ers; in which mortgage the assignment of the previous mortgage and decree to them for the same purpose is recited.

At the February Term, 1853, of the Circuit Court for Charles couniy, the appellees obtained a judgment against Lyne Shackelford for the sum of $396.59. In March, 1854, Shackelford died intestate, and on the 26th June, following, William P. Mills filed a creditors’ bill against his administrator and heirs-at-law, for the sale of his real estate for the payment of his debts, on the ground that his personal estate was insufficient for that purpose. Thompson, Stewart and Mathews not having been made parties to the original bill, Mills filed an amended bill, asking that they might be made parties aiid that their interest in the said real estate might be decreed to be sold. They filed their answer admitting that they were the holders of the mortgage of the 13th December, 1853, and alleging that the mortgage and decree of Gwyn, Reid & Taylor had also been assigned to them.

The appellees were not made parties to these proceedings. A decree was passed for the sale of the said real estate, and one ²²⁵ Peregrine Davis became the purchaser; the sale was ratified, the purchase money was paid and distributed under the direction of said Court, after due notice to the creditors of Shackelford to file their claims in the cause; and the appellant derived his title to the land from Davis, the purchaser at the trustee’s sale. In April, 1861, the appellees sued out a writ of scire facias upon their judgment, which was served upon the appellant, as terre-tenant of Shackelford, and at the trial two prayers were offered, one by the appellees and the other by the appellant ; the former of which was granted and the latter rejected by the Court; and the judgment being against the defendant below, he appealed. The question, presented by both prayers, is whether or not the judgment of the appellees could be enforced against the land,