Hewell v. Coulbourn

Bowie, J., delivered the opinion, of the Court. The subject of controversy in this case, is the priority of certain encumbrances on leasehold property in the City of Baltimore, mortgaged by the appellant, Hewell, to the appellant, Segerman, and then by Segerman to tbe appellee, and subsequently conveyed to the appellant, the Relief Building Association, by Hewell -and Segerman, without regard to the lien of the appellee. The appellee filed his bill in the Circuit Court of Baltimore City, on the 10th of May, 1879, against the appellants, claiming a prior equitable lien on the premises to the amount of $2000, and prayed that the land be sold to pay the same and for further relief. The material facts established by the evidence are substantially as follows : Hewell on the 1st of July, 1871, and 7th of November, 1872, made two mortgages of certain leasehold property lying in the City of Baltimore, to Segerman, to secure the payment of a series of negotiable notes held by Segerman, aggregating the sum of $4420, and having in all five years to run.

Segerman, in September, 1873, borrowed of the appellee two thousand dollars, and gave his note for the same payable at one year after date, and further to secure the same, made and executed a deed of mortgage dated the 11th of September, 1873, to Coulbourn, therein reoiting that in consideration of the premises, he assigned and granted to Coulbourn and his assigns, “all his right, title, interest and estate in and to the two following mortgages, (thereinafter particularly described, and being the same above mentioned,) and the notes named in said mortgages, and in and to the property mentioned and described therein,” which deed of mortgage was duly recorded on the same day in one of the Land Records of the City of Baltimore. ⁶¹ On the 28th of February, 1816, James L. Hewell executed to the Relief Building Association of Baltimore, a mortgage of the same premises, to secure the sum of nine thousand dollars advanced on the stock of the Association held by the mortgagor ; the Building Association having knowledge of the preceding mortgages to Segerman, which it was understood ■ between Hewell and the Association should be satisfied and released. On the 29th of February, 1876, Segerman entered on the Record Book a release of the mortgages to him. On the 15th of June, 1817, Hewell, in consideration of ¡¡>6000, granted and assigned to Segerman all the residue of the term of years, with the benefit of renewal in the aforesaid mortgaged premises. Afterwards Segerman for a valuable consideration conveyed all his right, title and interest in the premises aforesaid to the Relief Building Association.

The notes intended to be secured by the mortgages from Hewell to Segerman, were never delivered by him to any one, or passed from his possession, except temporarily, and are supposed to have been lost or destroyed. Coulbourn, Hewell and The Relief Building Association claim that Segerman promised to deliver up the notes at the time of the respective assignment, or execution of the several deeds of mortgage and releases, designed to operate upon the debts represented by them. Clayton, the agent of Coulbourn, and Barnitz, the conveyancer who prepared the assignment of the notes and mortgages to Coulbourn, depose, that Segerman promised to deliver Hewell’s notes to Coulbourn. Hewell deposes, that when Segerma]1 released the mortgages to him, he demanded the notes, and Segerman told him he had not them tlien, but would give them to him in a few days.

These statements are denied by Segerman, but the weight of the testimony being in their favor, they must be taken as proved. ⁶² It appears that Segerman, being a creditor of Hewell and a debtor of Coulbourn, was interested in procuring a loan from the Relief Building Association to enable him to realize his mortgages and pay his debt. He therefore became the agent of'Hewell in negotiating the loan with the Building Association. Before consummating this loan, he says, he informed the president of the company that he had hypothecated the mortgages of Hewell to himself, for $2000, which lien he desired to he paid off, hut the president denies all knowledge of this hypothecation. The Relief Building Association disclaiming all knowledge of Ooulbourn’s lien