Hawkins v. Bouic

Thomas, J., delivered the opinion of the Conrt. The questions involved in this appeal are entirely questions of fact. The contention of the appellants, Richard TO. Hawkins and Lura A. Hawkins, his wife, is that the proceeds of sales of certain property covered by a mortgage given by them, and upon which property Lnra A. Hawkins held a subsequent mortgage, and certain other payments received by the assignee of the mortgage should have been applied by him to the mortgage debt, while the appellees contend that the money received from said sales was applied by the assignee of the mortgage to other debts which the appellants owed him in pursuance of an agreement with Richard D.'Hawkins and with the knowledge and assent of his wife, and that the other payments made by Richard D. Hawkins were not applied by him, but were applied by the assignee of the mortgage to other claims held by him against said appellants.

The following opinion of the Court below contains a clear statement of the case and a full discussion of the evidence, and we entirely concur in the conclusion reached by the learned judge who prepared it: “This case is now before the Conrt upon exceptions separately filed by the mortgagors to the ratification of the report of the auditor distributing the proceeds derived from the sale made under these proceedings, and also upon the petition of the purchaser at said sale for a writ of habere and the evidence taken thereunder.” “The record discloses that Richard D. Hawkins, on the twenty-fifth day of April, eighteen hundred and ninety-nine, being the owner of two adjacent parcels of land situate in Frederick county, herein called the Putnam tract, subject to a mortgage owned by Charles Levy, securing the payment of ¹⁵¹ twenty-five hundred dollars, also of a parcel of land situate in Montgomery county, herein called the Kinder tract, and also of two adjacent parcels of land situate in Montgomery county, herein called the Bennett tract, did together with his wife, by their deed of mortgage of that date convey the same to one Noah E. Oramer to secure the payment of a promissory note bearing even date with the mortgage, for three thousand dollars, drawn by Richard D. Hawkins, as principal, and Lura A. Hawkins, William N. Thompson and Fleet Staley, as sureties, payable to the order of Noah E. Oramer one year after date with interest from' date; and thereafter by his deed of mortgage dated the fourth day of May, eighteen hundred and ninety-nine, Richard D. Hawkins conveyed the same lands to his wife, Lura A. Hawkins, to secure the payment of a promissory note of even date with the mortgage for one thousand dollars, drawn by the mortgagor, payable to the order of the mortgagee one year after date with interest from date.” “On the tenth day of May, nineteen hundred, Lura A. and Richard D. Hawkins assigned the last mentioned mortgage to Horace D. Waters. By their bill of sale dated the twenty-ninth day of October, nineteen hundred, Mr. and Mrs. Hawkins, for the recited consideration of seven hundred and ten dollars and fifty-one cents, conveyed. certain personal property therein described to Horace D. Waters (Exhibit B. S. 1). The evidence shows this bill of sale was given to secure the payment of a promissory note dated the nineteenth day of October, nineteen hundred, for seven hundred and ten dollars and forty-one cents, drawn by Mr. and Mrs. Hawkins, payable to the order of Mr. Waters, nine months after date with interest from date, which is filed as an exhibit herein. By assignment dated the fifth day of March, nineteen hundred and one, Mr. Waters acquired the Cramer mortgage.” “By their bill of sale, dated the tenth day of June, nineteen hundred and one Mr. and Mrs. Hawkins for the recited consideration of a debt of four hundred and fifty dollars ¹⁵² owing by them to him conveyed certain personal property to Mr. Waters (Exhibit B. S. 11).' It appears from the evidence, this bill of sale was given to secure the payment of a promissory note of even date therewith, for four hundred and fifty dollars drawn by Mr. and Mrs. Hawkins, payable to the order of Mr. Waters six months after date.

By their bill of sale of the last-mentioned date, Mr. and Mrs. Hawkins, for the recited consideration of an indebtedness of two hundred and fifty dollars owing by them, to Mr. Waters conveyed to him certain personal property therein described (Exhibit B. S. No. 8). It appears from the evidence this bill of sale was given to secure the payment of a promissory note of even date therewith for two hundred and fifty dollars drawn by Mr. and Mrs. Hawkins, payable to the order of Mr. Waters six months after date. By their bill of sale dated the twenty-eighth day of October, nineteen hundred and one, Richard D. Hawkins and his wife for the recited consideration of an indebtedness from them to Mr. Waters amounting to four hundred and ninety dollars conveyed to him certain personal property therein described (Exhibit B. S. No. 9). The evidence shows this bill of sale was given to secure the payment of a note of even date therewith for four hundred and ninety dollars, drawn by Mr. and Mrs. Hawkins, payable to the order of Mr. Waters ten months after date.

By their bill of sale dated the eleventh day of November, nineteen hundred and one, Hawkins and wife for the recited consideration of an indebtedness from them to Mr. Waters of four hundred and five dollars conveyed to him certain personal property therein described (Exhibit B. S. No. 5). The evidence shows this bill of sale was given to secure the payment of a note dated the eighteenth day of October, nineteen hundred and one, for four hundred and five dollars and fifty cents, drawn by Richard D. Hawkins, payable to the order of Mr. Waters ten months after date, with interest from date.” “On the twenty-eighth day of July, nineteen hundred and two, the Kinder tract was sold hy Mr. Hawkins for twenty- ¹⁵³ three hundred and twenty-eight dollars, and seventy-three cents. Mrs. Hawkins was present when the sale was consummated and united with her husband in the deed to the purchaser. Mr. Waters was also present and executed and delivered to the purchaser a deed releasing the land sold from the liens existing thereon by reason of the two mortgages hereinbefore referred to.

The purchase money was paid out by Messrs. Talbott and Prettyman who were supervising the sale for the party lending the money to the purchaser. According to a statement prepared by them and handed to Mr. Richard D. Hawkins at the time of the sale, after paying out the purchase price certain expenses, taxes and judgments, about which there is no dispute, there remained fourteen hundred and twenty-nine dollars and seventy-three cents, which it is conceded, should have been fifteen hundred and eight dollars and sixty-six cents, which was received and applied by Mr. Waters in accordance with a statement read from his ledger in reply to the fifth direct interrogatory propounded to him, from which it appears no part thereof was applied to the debt secured by the Oramer mortgage. The exceptants contend that this was error, and that this entire amount should have been applied on that debt.

On the twenty-sixth of March, nineteen hundred and three, Mr. Hawkins with the concurrence of his wife and Mr. Waters, sold and conveyed the Putnam tract for four thousand dollars. Of the proceeds of this sale Mr. Hawkins received and retained one hundred dollars, being the amount paid by the purchaser when the contract of sale was made, and out of the remainder, thirty-nine hundred dollars, twenty-five hundred and sixty-two dollars and twenty-six cents was paid to Mr. Levy to settle the first mortgage on the property, fifty-two dollars and seventy cents was applied to the payment of taxes, twenty-five dollars and forty cents was paid to a Mr. Biser to settle a claim he had against Mr. Hawkins, and five dollars was paid to Mr. Oramer for his fee for services rendered in connection with the sale. This ¹⁵⁴ left a balance of twelve hundred and fifty-four dollars and sixty-four cents, which was paid to Mr. Waters, of which he credited as of date of the sale one thousand and sixty-eight dollars and sixty-one cents on the debt secured by the Cramer mortgage, leaving a balance of one hundred and eighty-six dollars and three cents, which the exceptants also claim should have been credited on the last mentioned debt. The except-ants further claim a credit as of the tenth day of May, nineteen hundred and six, of one hundred and fifty dollars on the debt secured by the Cramer mortgage for money it is conceded was paid on that date by Mr. Hawkins to Mr. Waters.” On the tenth day of May, nineteen hundred and ten, the Bennett tract was sold under the power contained in the Cramer mortgage by the assignees thereof for the purpose of foreclosure, at public auction, to Horace D. Waters, for thirty-one hundred dollars, which sale was reported to this Court and by an order thereof passed on the fourteenth day of June, nineteen hundred and ten, finally ratified and confirmed,- and on the sixteenth day of July, nineteen hundred and ten, the auditor filed his report distributing the proceeds of sale.

In the account stated by him the auditor charged the parties making the sale with thirty-one hundred dollars, being the gross amount thereof, credited them with the costs - and expenses incident to the sale, amounting to one hundred and eighty-seven dollars and seventy-five cents, and distributed the balance, amounting to twenty-nine hundred and twelve dollars and twenty-five cents, on account of the mortgage debt, which he found amounted to thirty-five hundred and six dollars and fifty cents on the tenth day of May, nineteen hundred and ten, the day of the sale. In arriving at the amount of the mortgage debt as of the day of sale, two credits were allowed by the auditor thereon, one of one hundred and eighty dollars as of the twelfth day of May, nineteen hundred, the other of one thousand and sixty-eight dollar’s and sixty-one cents as of the twenty-sixth day of March, nineteen ¹⁵⁵ hundred and three, the latter being money received by Mr. Waters from the sale of the Putnam tract. On the sixth day of July, nineteen hundred and ten, it was ordered that the report of the auditor be ratified unless cause to the contrary be shown on or before the thirtieth day of July, following. On the last mentioned day, Bichard D. Hawkins excepted to its ratification “Because the said mortgagor says that he is charged with more interest than is due on the mortgage described therein.” On the tenth day of June, nineteen hundred and eleven, Mr. Waters filed his petition in this case, in which he alleged that Mr. and Mrs. Hawkins were in possession of a portion of the land purchased by him and asked that they be required to deliver possession thereof to him.

On the twenty-second day of June, nineteen hundred and eleven, the defendants answered this petition, alleging in substance, that Mr. Waters had purchased the property to hold for them until a settlement could be had between him and them of all dealings between them, when he was to reconvey it to them or any person they might name, and that upon a fair settlement of all the dealings had between the petitioner and the respondents it would be found there was nothing owing him on the debt secured by the Cramer mortgage at the time of the sale made thereunder.” “On the twenty-fifth day of May, nineteen hundred and twelve, Mrs. Hawkins filed a petition herein, which, in substance, alleges that she assigned her mortgage to Mr. Waters as collateral security for the payment of the debt secured by the Cramer mortgage, which he had promised her husband to acquire; that Mr. Waters received from the Kinder tract twenty-three hundred and twenty-eight dollars and seventy-three cents and from the sale of the Putnam tract thirteen hundred and fifty-four dollars and seventy-three cents, which he ought to have applied, but did not apply, on account of the debt secured by the Cramer mortgage; that after the sales of the Kinder and Putnam tracts Mr. Waters delivered to her and she accepted from him her mortgage as a reassign ¹⁵⁶ ment thereof to her; that the entire amount of the debt secured by her mortgage with interest thereon from the date of the mortgage remains unpaid, and she asks that the same be paid from the proceeds of the sale made under these proceedings. On the seventh day of June, nineteen hundred and twelve, Mr. Hawkins filed additional exceptions to the ratification of the auditor’s report, in which he claims that he is entitled to a credit of eleven hundred and ninety-four dollars and sixty-one cents as of March fifth, nineteen hundred and three,' and of sixteen hundred and five dollars and sixty cents as of July nineteen hundred and two, in addition to the credits allowed on the Cramer mortgage by the auditor. When the exceptions came on to be heard the