Embrey v. Embrey

Pattison, J., delivered the opinion of the Court. In 1907, one Robert L. Embrey acquired by deed from Joseph Chaney and wife about one-half acre of land in Reisterstown, with a small dwelling thereon, subject to a mortgage of $600, which was paid off on May 7, 1910. ¹⁶⁴ On December 1, 1914, Robert L. Embrey and his wife, Eva P. Embrey, the appellee, executed a mortgage to one Kephart Pfeifer for the sum of $200, payable three years after date, to secure the payment of their joint promissory note, the proceeds of which were used for the husband’s personal needs. Shortly after or about the time of the execution of the mortgage, Robert L. Embrey deserted and abandoned his wife and his three infant children, Evelyn A., Lillian Gertrude, and Clifton E. Embrey, and went to Virginia to live. While there he filed a bill for divorce alleging therein that his wife, Eva, had abandoned and deserted him.

The proceedings in the Virginia court were, it seems, unknown to the wife; at least, she failed to appear' and answer. On June 10th, 1916, an absolute divorce was granted Robert Ij. Embrey by the Virginia court, and on July 3rd, 1916, he married Belle A. Embrey, one of the appellants. As a result of this last marriage, two children, the infant appellants, Margaret and Axmetta Embrey, were born.

The wife by the second marriage was a native of Baltimore City. Two years gfter her marriage she located in Baltimore County with her husband, and lived there with him until his death in April, 1928. After Eva P. Embrey had been deserted by her husband, she received nothing from him with the exception of twelve dollars that he sent at the end of the first month; nor did she hear from him thereafter. With her three children she continued to occupy the home in Reisterstown.

To support herself and children, the mother took in “boarders, baked cakes and pies and sent the children around the neighborhood to sell them.” Wishing to be relieved of the burden of paying the interest on the mortgage of $200 on their home, Eva P. Embrey, on April 28th, 1917, nearly a year after the divorce, paid to the mortgagee the amount of the mortgage and interest with money she had received from her father’s estate, and took an assignment of it. She continued to live on the property with her children until December, 1927, during which time she paid the taxes and insurance and made improvements on the property, for which no claim was made. ¹⁶⁵ Upon, the death of Bobert L. Embrey, a bill was filed by the three children of his first marriage, who were then adults, asking for the sale of the property for the purpose of partition among those entitled thereto. Belle Embrey, the widow, and her two children, Margaret and Annetta Embrey, with Eva P. Embrey, assignee of the mortgage, were made defendants to the bill. Belle Embrey and her infant daughters answered the bill, in which they denied the right of Eva P. Embrey to participate as assignee of mortgage in the distribution of the proceeds of the sale of the property.

Eva P. Embrey answered, admitting the facts alleged in the bill, and asserting that she was entitled to have paid to her out of the proceeds of the sale the amount of the mortgage assigned to her with interest. The question of her right to participate in the distribution was presented to the court, and after hearing testimony thereon the court decreed that the auditor, in stating his account, should distribute to Eva P. Embrey out of the proceeds of the sale, “in satisfaction of the mortgage on said property held by her, the sum of two hundred ($200.00) dollars, the amount of said mortgage, with