Frostburg Perpetual Building Ass'n v. Hamill

Bartol, C. J., delivered the opinion of the Court. The bill of complaint in this case was filed by the appellant, to obtain a decree for the sale of certain real estate described in a mortgage, dated July 12th 1875, exhibited with the bill. No question is raised with respect to the amount due the appellant which the mortgage was intended to secure; hut the single question presented, is whether the mortgage can be enforced against the property and estate of Mrs. Hamill, therein described. To solve this .question, it is material to consider: First.

The nature of the title or estate held by Mrs. Hamill at the time the mortgage was executed, and Secondly. Whether that instrument is sufficient in its ternas to create a lien against her estate. First. It appears from the agreed statement of facts contained in the record, that in January 1866, the property .belonged to Charles H. Hamill in fee, that it was ³¹⁵ seized "by the sheriff under a writ of fieri facias, issued upon a judgment recovered against Charles H. Hamill, and on the 3rd day of February 1866, was sold by' the sheriff, under said writ, at public sale, and purchased by •Catharine Hamill, as appears by the special return made by the sheriff, who by deed, dated February 24th, conveyed the same to her in fee simple.

Consequently the property thus acquiréd, was held *by her to her separate use, under the provisions of the Code, Art. 45, sees. 1 and 2, with the right and power “ of devising the same as fully as if she were a feme sole,” and of “conveying the same by a joint deed with her husband.” And with power to charge the same by her contract executed with the concurrence of her husband, as decided in Hall & Hume vs. Eccleston, 37 Md., 510 , which contract may he enforced in a Court of equity.' It appears from the record, that on the 7th day of May 1866, after the property had been acquired by Mrs. Hamill, as before stated, a deed of mortgage of the same property was made by her husband, to Aden Clary, trustee, for her use and benefit, for the purpose as therein stated of securing to her the payment of the sum of $16,789.59, which was her separate property derived from the estate of her father, and which was loaned to her husband. That mortgage also embraced certain personal property ; hut so far as the real estate was concerned, it appears to he an extraordinary document, when it is remembered that the real estate was already vested in her as her separate property. The instrument, however, has no significance in this case, except as showing the reason why it seems to have been thought necessary for Aden Clary as trustee to unite in the mortgage to the ■appellant of July 12th 1875. But as Aden Clary had no power to execute such a paper, the mortgage derives no force or validity from the circumstance that he was a party to it.

The instrument ³¹⁶ must be considered as having been executed by Charles H. Hamill and his wife, and the question to be determined is, whether it constituted a charge upon her separate estate described therein. The instrument purports on its face to be a mortgage made by Aden Clary, trustee for Catharine Hamill, and Charles H. Hamill. It recites, that in consideration of $1300, now due from Catharine Hamill to the appellant, being money advanced to her by the said corporation, of which she is a member, for the redemption of five shares of its stock, being the par value of said five shares, the said Aden Clary, trustee, and Charles H. Hamill, grant unto the appellant the lots of ground therein described. Then follows the condition, that if the said Catharine shall truly pay the moneys, and perform the covenants and obligations hereinafter mentioned, to be paid and performed by her, then this mortgage shall be void.

Then are enumerated the several covenants of Catharine Hamill. And it is further provided, that if she shall make default, &c., “then it shall be lawful for the appellant to sell said mortgaged, property, after giving at least twenty days public notice, &c., to pay in the first place, the expenses incident to the sale, and in the next place, to pay the amount due on the mortgage.” The instrument is signed and sealed by Aden Clary, Catharine Hamill, and C. H. Hamill, who acknowledged the same before a justice of the peace as their respective act and deed, and the affidavit of the truth and bona fides of the consideration therein stated, was made by the secretary of the appellant, in due form as required by the Code; and the mortgage was duly recorded. The only ground upon which it