Chilton v. Brooks

Alvey, C. J., delivered the opinion of the Court. This action was brought by the appellees against the appellant on a promissory note for $3,500, made by the defendant on September 21th, 1884, payable five years after date, (without days of grace,) to George Blackistone, trustee, or order, and which was endorsed by the payee to the plaintiffs. The note matured September 21th, 1889, and this suit was brought October 5th, 1889. The facts of the case, as disclosed by the record, are, that the plaintiffs as trustees held a mortgage, made by one Marriott, on a certain lot on Madison avenue extended, in the City of Baltimore, to secure the sum of $3,500.

This mortgage they assigned to George Blackistone, trustee, to enable him to foreclose the same as assignee ; and the property being sold under a power in the mortgage, the defendant became the purchaser thereof at $3,800. The sale having been ratified, the defendant paid $300 in cash, and gave the promissory note in suit for the balance of the purchase money, being $3,500. He also gave ten interest notes, each for $81.50, payable at intervals of six months, being the interest on the principal note, at 5 per cent, per annum. The defendant received a deed for the property, and gave the vendor a mortgage thereon, collateral to the ju'iucijjal and interest notes ; and thereupon the notes were endorsed to the plaintiffs by the trustee, Blackistone, and he also assigned the mortgage to them.

The property sold was subject to an annual ground rent of $200, payable in semi-annual instalments of $100. The defendant, ⁵⁵⁶ in breach of the covenant in the mortgage, failed to pay the ground rent due, and also the half year’s interest on the mortgage debt, which became due September 27th, 1886; and on' the 3d clay of November, 1886, he made a conveyance of the property to Mrs. Englar, a married woman, subject to the mortgage. Both interest and ground rent being in arrear, the plaintiffs, on the 21st of February, 1888, commenced proceedings for the sale of the mortgaged premises, under the power in the mortgage; and after some litigation and delay, a sale was effected for $2,500, and which sale was confirmed by the Court. Whereupon an auditor’s account was stated, whereby, after allowing for taxes, ground rent and other necessary charges, there remained a balance of $984.54, to be credited on the principal of the mortgage debt.

This account was ratified by the Court, and the balance ascertained was indorsed as a credit on the mortgage note as of the 9th of April, 1889. It also appears that suits were brought against the defendant on the unpaid interest notes, and that judgments were recovered, and that the money Was made by executions thereon. The case was tried below on the pleas, never indebted as alleged; never promised as alleged; and on a special plea, which was traversed by the plaintiffs, alleging that there had been an agreement entered into between the plaintiffs and Englar and wife for an extension of time for the payment of the mortgage debt and interest, and that, by the agreement, such extension of time was given without the concurrence or assent of the defendant. The issue formed on this allegation of the defendant made the principal question in the case.

Neither the mortgage from the defendant to Blackistone, which was assigned to the plaintiffs, nor the deed from the defendant to Mrs. Englar, is set out in the record, nor made part of any bill of excej)tion that was taken. But in the defendant’s first exception it is ⁵⁵⁷ stated, that the defendant himself as a witness proved, that he purchased the property and took a deed for it, and made the promissory note and mortgage to Blackistone, trustee, and that he held the property until he sold it to Mrs. Englar, subject to said mortgage; and then offered in evidence a certified copy of the deed from himself to Mrs. Englar for the property, executed on the 8d of November, 1886, subject to said mortgage; which, upon objection, the Court refused to admit in evidence under the issues made by the pleadings. And as we have just said, the deed is not incorporated in the ex-ception, nor have its contents been stated, except as just recited. The contention of the defendant is, that by reason of the conveyance of- the property to Mrs. Englar, a married woman, subject to the mortgage, the grantee, Mrs. Englar, became the principal debtor to the plaintiffs, and that the defendant was placed in the position of mere surety for the mortgage debt; and that because the plaintiffs, as alleged, extended the time of payment to Mrs. Englar, or failed to take active proceedings to collect the debt, or the ground rent, upon notice by, and on request of the defendant, the latter is discharged from his responsibility upon the note; or at least, that he is discharged to the extent of the amount that could have been collected by the plaintiffs, by active and timely proceedings against the grantee in the deed.

But the whole contention of the defendant is utterly without foundation, upon