Harryman v. Starr

Robinson, J., delivered the opinion of the Court. On the 30th of May, 1871!, the appellant and her husband Amos; mortgaged the property in controversy, to Samuel W. Starr, the appellee, to secure the payment of $1845.00. The mortgage recites, 1st, the execution of a prior mortgage, by which the mortgagors conveyed to the mortgagee, their then existing interest in the property ; 2ndly, that since the execution of said prior mortgage, D. C. H. Emory and William S. Keech, trustees, had sold and conveyed to the said Amos, all the interest of the parties to the suit of Lucretia Harryman and others, against Amos A. Harryman and others, bn the equity side of the Circuit Court for Baltimore County, in and to said property. In consideration of the premises, the appellant and her husband conveyed to the appellee, all their interest in the property thus acquired, and in the description of the same, refer to the deed of D. O. H. Emory and William S. Keech, trustees, to the said Amos, the husband. ⁶⁷ In order to understand precisely the nature and character of the interest of the mortgagors, in the property thus conveyed to the appellee, it is necessary to refer to the proceedings in the .suit of Lucretia Harryman and others, under which the property was sold by the trustees to Amos.

By these proceedings, it appears that the real estate in dispute, originally belonged to Amos and his sister Lucretia, as tenants in common. On the 25th November, 1873, a bill was filed by Lucretia for partition of said property, and for other relief, to which bill Amos, one of the defendants, entered a general demurrer. On the 19th March, 1875,- pending the litigation, Amos conveyed his interest in the property to his wife,.the appellant, and on the 12th of May following, the appellant and her husband conveyed the same to Achsah Perine. Being satisfied by the proof, that a sale would be ordered at the final hearing, the Court on the 3rd June, 1876, decreed that the real estate should be sold and appointed D. C. H. Emory and William S. Keech, trustees.

At the sale made by the trustees under this decree, Amos became the purchaser, and upon the ratification of the sale, the trustees conveyed to him the property. Assuming for the purposes of this case, that the sale thus made by the trustees was a valid sale, it is clear that Amos acquired all the interest of the parties to the equity suit, including also the interest of Achsah Perine derived from Amos, one of the defendants, pending the litigation. Being thus entitled to the interest of all the parties in that suit, and which was in point of fact the entire estate, Amos and his wife, by mortgage dated the 30th May, 1877, conveyed the property to the appellee, the recitals in which we have referred to' in a former part of this opinion. Under this mortgage the property was sold and the appellee became the purchaser, and upon the ratification of the sale he applied to the Court for a writ of “ habere ⁶⁸ facias,” against the. appellant, one of the parties to the mortgage.

Against the issuing of the writ, the appellant files sundry objections : 1st. She alleges that long prior to the execution of the mortgage, under which the' appellee claims, her