Dickey v. Permanent Land Co.

Yellott, J., delivered the opinion of the Court. On certain real estate, described as belonging to the -complainants in this cause, the Permanent Land Company of Baltimore City holds three mortgages, executed at different periods and intended as security for the payment of •different sums of money. The first of these mortgages is dated the 23rd of January, 1867, and was assigned by the mortgagee named therein to the said company, on the 24th of January, 1875. Of the two remaining mort-. gages, one is dated the 19th of December, 1873, and the •other the 23rd of April, 1877.

That two of these mortgages have been fully paid and satisfied is not disputed; ■and it is conceded that there has been an over-payment, by way of usurious interest, in excess of the sums really ■due and legally demandablei These payments were made more than three years ago, and an action, at law, instituted for the recovery of usurious interest, might be barred by limitation, if the defendant in such action should •avail himself of his privilege and plead the Act. If, however, the complainants in this cause ever had any right to compel the defendant to refund the money paid by way ■of usury, they had, during a period of three years, a complete and adequate remedy at law. With a full knowledge of all the facts, and therefore, in legal contemplation, perfectly cognizant of their rights and remedy, they have been guilty of laches until by the lapse of time, their right of action may be barred by the operation of the Statute of Limitations; and they now ask a Court of equity to decree relief in equity, by wholly ignoring the fundamental maxim in which equity originated, and on which equitable jurisdiction has its foundation. The debt alleged to be due the complainants, if not wholly extinguished by ■being brought within the purview and operation of the Act of 1876, ch. 358, can yet be sued on in a Court of law, although more than three . years have elapsed since the cause of action accrued.

It is perfectly apparent that ¹⁷⁶ this debt can he recovered and become the foundation for a judgment in a Court of law, unless the plea of limitations is interposed as a bar to the remedy. The debt itself is not extinguished by the operation of the Statute of Limitations, and Courts cannot assume that a party defendant will seek to bar the remedy by an interposition of the plea. Even if an action at law should eventually terminate in this result, it would he suggestive of the propriety of the application, by a Court of equity, of the maxim, “ vigilantibus non dormientibus jura subveniunt or in other words, that the laws intervene to aid those who are active and vigilant, and not those who are sluggards and who sleep on their rights. The defendant, in its answer, admits that the first two mortgages have been fully paid and satisfied, and releases of the same have been produced, which, the Circuit Court has decreed, shall he recorded and delivered to the complainants.

The complainants have thus, by the concession and action of the defendant, obtained all the relief they are entitled to with respect to the two first mortgages, which have been thus released; hut they insist on an account with respect to these two mortgages, so that the over-payment of interest may he ascertained and applied to the extinguishment of the debt still due on the third mortgage. It is conceded by both sides that there has been an application of payments already made by agreement of the parties to the two first mortgages. Now the rule in regard to the application of payments is well defined. At the time when payment is made, there may he an