Crawford v. Richards

Markell, J., delivered the opinion of the Court. This is an appeal from a judgment for defendant, on the defense of limitations, in a suit on a promissory note of defendant, dated February 15, 1987, for $3,672, payable one year after date to Millard F. Crawford or order, secured by a deed of trust of the same date, recorded in West Virginia, from defendant to a trustee, on West Virginia real estate. The case was tried before Judge Mish without a jury. The note was not paid at maturity.

The deed of trust was foreclosed in 1945 by sale without judicial proceedings. Plaintiff received $695.53, leaving a deficiency of $4,867.55. Suit was instituted in 1948. The deed of trust is under seal; the note is not.

By an assignment dated April 2, 1941, recorded in West Virginia, Crawford assigned the deed of trust to his wife. Plaintiff is their daughter; she sues as administratrix of her mother’s estate. It is alleged in the declaration, not denied in any of the pleas, and stated in Judge Mish’s opinion and in the briefs of both parties, that on April 2, 1941 “the note and deed of trust” were assigned by Crawford to his wife. We find in the record no assignment, in terms, of the note.

No West Virginia statute has been cited, and we have found none, similar to the Maryland statute under which an assignment of a mortgage operates, to some extent, as an assignment of the note secured by the mortgage. Code, Art. 66, sec. 26. We cannot presume that there is such a statute in West Virginia. Dickey v. Pocomoke City Nat.

Bank, ²⁸⁶ 89 Md. 280 , 43 A. 33 . We shall, however, assume that the note was assigned by some other instrument or that under West Virginia law in some way the assignment of the deed of trust operated as an assignment of the note. If suit on the note was already barred by limitations before the assignment of the deed of trust, assignment of the note may be of no importance. Plaintiff is administratrix d. b. n. of her father’s estate, and originally sued in that capacity and also as her mother’s administratrix.

After rulings on demurrers, she was eliminated as a party in the former capacity. By an agreement between Crawford and defendant dated July 14, 1915, Crawford promised to retain defendant as his attorney to invest money for him, from time to time, in six percent notes secured by first mortgage real estate security, in consideration of which defendant promised to invest the money so placed in his hands, attend to the collection of interest, keep in force all insurance on the mortgaged property without cost to Crawford, and in case any of the mortgages are foreclosed and no third person bids sufficient at the sale to secure the mortgagee’s interest, promises to buy the property and carry the mortgage, and pay interest on it and pay the mortgage off in full within one year after the sale, if requested to do so by Crawford. Plaintiff says this 1915 agreement, though not under seal, should be considered as if under seal — a contention not only pointless but also irrelevant. An agreement under seal, dated May 3, 1935, between defendant and Crawford, recites that Crawford is the owner of certain mortgages and deeds of trust on properties in Maryland and West Virginia, these mortgages and deeds of trust were guaranteed by defendant as consideration for the making of the loans, some of the properties are now owned by defendant, and Crawford desires further security in case defendant should die before the mortgages and deeds of trust have been paid; therefore, in consideration of securing the personal guaranty of defendant in case of his death before the mortgages and deeds of trust have ²⁸⁷ been paid, defendant agrees to assign to Crawford all his equity in a named $2,000 life insurance policy, the assignments to be void if the