Green v. Redmond

Urner, J., delivered the opinion of the Court. This case is closely analogous in principle and material facts to the case of Howard v. Hobbs, 125 Md. 636 . The mortgage and a separate agreement between the mortgagors and mortgagee in that case provided that if no default occurred in the payment of the stipulated interest, or in the performance of the other usiial covenants of the mortgage, during the lifetime of the mortgagee, the principal sum therein mentioned should not be demanded at her death, but the mortgage should be deemed paid and satisfied and should thereupon be released by her personal representatives. The interest having been paid during the mortgagee’s lifetime, it was held after her death that the mortgage was not enforceable and that the mortgagors were entitled to have it released, either upon the ground that the provisions referred to showed the transaction to bo a gift of the fund in question, subject only to conditions which had been fully per-, formed, or upon the theory that, if the money advanced were regarded as a loan, it was effectually forgiven and extin-'; guished under ihe terms and performance of the agreement ' between the parties.

In the present case the mortgage under consideration recites the payment of $5,000 by the mortgagee to the mortgagors upon the agreement that they shall pay interest thereon at three per cent, annually or in monthly installments, and that if there were no default in the covenants of the mortgage, the principal sum mentioned should ¹⁶⁸ not be demanded by the mortgagee, or his personal representatives, and that in the event of the mortgagee’s death ¡before the maturity of the mortgage,, which was to continue ¡for a period of twenty-five years, the sum of $5,000 so advanced should be deemed a gift to the mortgagors, and the mortgage should be considered fully paid and satisfied. and should be released by the personal representatives of. the mortgagee. In an agreement executed simultaneously with the mortgage it was recited that the $5,000 fund was paid and advanced to the mortgagors upon the understanding and condition that they should give the mortgagee a comfortable home for the remainder of his life. It was provided by the /agreement that while the mortgagee was an inmate of the ’mortgagors’ home, the interest covenanted in the mortgage l to"be paid should be applied on his board and maintenance, ‘'but if he should leave the home for any reason, then the interest should be paid to him in cash in yearly or monthly installments, and if he should find it necessary to remove from the home to a hospital or sanitarium on account of illness, the mortgagors would give him every care and' attention. It was agreed, “in consideration of the premises” and “other good and valuable considerations,” that the mortgage should terminate upon the death of th'e mortgagee, and should then be deemed paid and satisfied and should be released by his personal representatives, and it was expressly stated to be the intention of the parties -that the principal sum of money referred to should not be repaid by the mortgagors to the mortgagee, “because the said sum is an absolute gift to them upon his death, and the time specified in the mortgage, being twenty-five years, was inserted because it is necessary in mortgages to specify and give the duration of the mortgage.” For a number of years prior to the advancement of the money and the execution of the mortgage with' which we are now concerned the mortgagee, Daniel Parke Custis, was employed as a pharmacist in a drug store in Annapolis owned ¹⁶⁹ by the mortgagor, Robert.

Redmond, whose wife is a party to both the mortgage and the agreement, and is designated by those instruments as a joint recipient of the fund to which they refer. During the period just mentioned Mr. Oustis had been living with the family of Mr. Redmond’s sister, and he continued to occupy his quarters there after the mortgage and agreement were executed, 'although a room was available for his use in the home of Mr. Redmond, but the latter paid for the hoard and lodging of Mr. Oustis at the place where he chose to remain. Several weeks after the transaction under inquiry, the health of Mr. Oustis had become impaired to such an extent that he was taken for treatment to Johns Hopkins Hospital, where shortly after-wards he died. The