Getz v. Johnston

⁵⁴⁵ Urner., J., delivered the opinion of the. Court'. The demurrers, to the hill of complaint in this ease have the effect of admitting the following allegations of fact: 1. That on September 1.7th, 1920, the plaintiff borrowed $2,000 from Frederick E. Getz and seeured the payment of the loan by a mortgage of certain leasehold property in the City of Baltimore. 2.

That the plaintiff subsequently paid $508 to' the mortgagee on account of the principal of the loan, and that the amount now due on the mortgage is. $1,497 with interest thereon from July 1.7th, 1922. 3. That the mortgagee died in the City of New York, after the payment in reduction of the principal of the mortgage debt, and his estate is being administered in that city by his widow’ as the executrix of his will. 4. That on September 7th, 1922, two deeds of assignment of the mortgage were recorded among” the Land Records of Baltimore City, one dated November 20th, 1920, from the mortgagee to his. wife, and one dated August 5th, 1922, from the latter, as executrix and sole legatee under her husband’s will, to Robert M. Johnston. 5. That on September 14th, 1922, a non-resident attachment for $1,500 against the widow and executrix of the deceased mortgagee was laid in the hands of the plaintiff as garnishee, in order to bind the balance due by her on the mortgage. 6.

That foreclosure proceedings were proposed to be instituted by Robert M. Johnston, as assignee of the mortgage, unless payment were made of the balance of the debt which it secured. 7. That there is a dispute as to the amount owing on the mortgage, the payment made by the plaintiff on the principal of the loan having been denied. A conclusion of law, stated in the bill, which the¡ demurrer did not have the effect of admitting, was that both of the deeds of assignment referred to were ineffective because the ⁵⁴⁶ one from the original mortgagee to his wife was not recorded within six months after its date, and the one from the latter as executrix and legatee under her husband’s will, probated in Eew York, was executed by ber without any authority or title derived from ancillary administration in this State, where the mortgaged property is located. The hill alleged the plaintiff’s inability to decide between the conflicting; claims, of the attachment creditor and the holder of the mortgage', and tendered payment into court of the balance determined to. be due.

The defendants named in the hill are Robert. M. Johnson, the bolder of the mortgage, Anna Florence Getz, widow of the deceased mortgagee, in her capacities as an individual and as executrix and legatee under his will, and Louisa Getz, the attachment creditor. The specific prayers of the bill were that the defendants be required to interplead, that the attachment suit and the foreclosure of the mortgage be restrained, .and that upon payment of the amount found to be due on the mortgage, to the person determined to be entitled, a trustee be appointed to execute a release. A prayer for genera! relief was'included in the bill.

An answer consenting to. a decree, of interpleader was filed by the attachment creditor, while the two other defendants filed demurrers. The appeal is from a decree sustaining the demurrers, denying; an application to amend the bill in certain particulars to be presently mentioned, and dismissing tire bill without prejudice, to the right of the plaintiff to prto ceed in such other action as may be appropriate. Tt is conceded, tbat if the bill of complaint should be regarded only as a formal bill of interpleader, it would be demurrable because it shows tbat the plaintiff is not an indifferent stakeholder of a definite fund to which the defendants make conflicting claim®, but is involved in a dispute with one of the defendants, as to the true amount of the fund. There are other grounds upon which the bill, as one of inter- ⁵⁴⁷ pleader, is said to be demurrable.

But the contention of the plaintiff is that the bill is maintainable because of its purpose to have the dispute as to the mortgage debt adjudicated, to prevent foreclosure proceedings., and to exercise the right of redemption under a decree providing; for payment to a trustee authorized to release the mortgage. There could he no. serious question as to the plaintiff’s right as mortgagor to maintain a bill for an injunction against a sale under the mortgage by' one refusing to- allow credit for a payment- alleged to have been actually'- made on account of the mortgage debt. As a prerequisite to such relief, however, the plaintiff would have to pay into court, or to the mortgage creditor, the amount of the debt which is admitted. Talbott v. Laurel Building Assn., 140 Md. 565 .

The main theory of the bill is that the defendant, who claims to be the present owner of the mortgage has> no interest in it which can he safely recognized. The allegations of the bill prevent the adoption of that theory. It distinctly appears from the hill that the mortgage was assigned by the original mortgagee to his wife and by her to the defendant by whom it is. now sought to be enforced. The only ground upon which those transfers are challenged is that the; deed of assignment from the mortgagee- to his wife was- not recorded within six months from its date.

But it is. provided by section 19 of article 21 of the Oode that any deed of or relating to land, “except deeds; or conveyances, by way of mortgages,” may be recorded after the period of six months mentioned in a prior section, “and when so