Cade v. Dukes

Bond, C. J., delivered the opinion of the Court. This is a second appeal in this case. The decision on the first was reported in 151 Md. 45 . By that former decision the case was remanded for proof of the time of recording an assignment of mortgage, so that the court might determine ³⁰⁹ whether the mortgagors had constructive notice, by the record, of the fact of assignment, before they made payments to the original mortgagee in disregard of the assignment.

The mortgagee failed to turn over the money to the assignee, and the ultimate question to he decided is: Who shall bear the loss, as between the mortgagors and the assignee ? It has been settled, as stated in tbe opinion on the former appeal, that the recording of the assignment gives the mortgagors such constructive notice of it that paymients made by them after the recording do not amount to payments on tho mortgage debt, unless received by the assignee. On the further evidence given, the circuit court has found that the assignment was recorded before the payments were made, and that the amounts could not therefore he deducted as payments on the mortgage debt. This court concurs in that conclusion.

The record gives January 61h, 1921, as the dato of recording. And the record of the assignment is appended to the record of the mortgage. The assignment was written on the original instrument itself. The date of the assignment was January 20th, 1921, before any of the payments were made.

The assignee has now testified that the mortgage was delivered to her on January‘2 0 th, complete as it is now, with the assignment entered on it. She has testified with certainty that she received the mortgage at that time, and that it has never since been out of her possession, so that it might have been in the clerk’s office for any recording at a later time. She had kept the paper in a safe deposit box continuously since January 20th, 1921; and while other members of her family used the box and had access to it, there is no likelihood of their having taken out this particular paper, in rthich they had no interest, fox further recording. Witnesses who had been employed as deputy clerks in January, 1921, have testified that the record