Hopper v. Williams

Opinion by Jones, J. ⁷³⁴ This is an appeal from the action of the Circuit Court for Harford County in overruling exceptions to an auditor’s account under the following circumstances. On the 14th day of October, 1890, the appellant in this case executed to Stevenson A. Williams a mortgage on certain property (real estate) situated in Harford County to secure the sum of $5,000 cash loaned. On the 6th day of January, 1891, the mortgagee assigned this mortgage as follows: “For value received I hereby assign the within and foregoing mortgage, viz.: to Stevenson A. Williams, administrator d. b. 11. c. t. a. of William Murphy, late of Harford County, deceased, thirty-one hundred dollars ($3,100), and nineteen hundred dollars ($1,900) to Fannie O. Street.” On October 26th, 1895, these assignees filed in the Circuit Court for Harford County a bill in equity for a foreclosure of the mortgage and a sale of the mortgaged premises. The appellant having been summoned and failing to appear and answer an interlocutory decree was taken against him and after testimony taken ex parte a decree was entered in the case on the 14th day of March, 1896, to the effect that there was due the complainants “the sum of five thousand dollars ($5,000) with interest from the 14th day of April, 1891, less a credit of $114.26 on account of the interest due on the principal sum on the 14th day of April, 1892, from the defendant, Harrison Hopper,” and directing that unless the said Harrison' Hopper should pay or bring into Court to ⁷³⁵ be paid to the complainants “the said principal sum with interest as aforesaid” and the cost of proceedings within five days from the date of the decree the mortgaged premises be sold and that the appellee be appointed trustee to make such sale.

Under the decree the trustee (the appellee) advertised the mortgaged premises to be sold on the 4th day of October, 1897. The appellant then intervened in the cause and filed a petition in which he alleged that he was entitled to various credits upon the mortgage, to wit: interest which had been paid by him, a sum of money in excess of $100 which had been paid by other parties named in the petition for account of the appellant, the sum of about $4,800 which in a certain other equity case was the share of the appellant in the proceeds of sale and which had been audited to and accepted by the appellee to be appropriated as a credit on the mortgage debt in this case ; and a credit for about $700 or $800 out of the proceeds of sale which had been made by the appellee in still another equity case under decree of the Circuit Court. And further alleged that there were “certain offsets claimed against the various credits, the exact amount of which” he was ignorant of and could not, without a full discovery and accounting from the appellee, specifically set forth the items of credit and offset. He then alleged that he was desirous of redeeming and paying off the mortgage in these proceedings mentioned and to that end desired a true and perfect account of the amount due under the mortgage to be taken ; and asked the sale advertised by the trustee be stayed, that the papers be referred to the auditor to state an account and that the appellee be required to fully and clearly state “the several accounts of money and credits” referred to and to which the appellant claimed to be entitled, See.

The Court thereupon ordered that the sale be suspended and the papers in the case be referred to the auditor to state an account of the amount due on the mortgage and gave authority to the auditor to take testimony. Sometime thereafter, and after certain other proceedings not material here, the appellee filed an answer to the petition just referred to and accompanied it with a statement which ⁷³⁶ showed besides the credit on the mortgage mentioned in the decree certain other credits for amounts received by him since the date of the decree which reduced the amount remaining due on the mortgage with interest to $3,713.75. The auditor took testimony as to the matters alleged in the petition of the appellant, which has been referred to, as directed by the Court and reported that he was “not able to find anything in said testimony” which would “authorize him to make any reduction in the amount of the decree in this cause except” the credits, which he specified, that were shown by the statement which accompanied the answer of the appellee to the petition of the appellant asking for the reference and account. After this the auditor took additional testimony and again reported to the Court to the effect that he found “nothing to warrant a change in the report” already made by him.

To this report of the auditor the appellant filed exceptions which were overruled by the Court and the report of the auditor was ratified, the-