Kirsner v. Hammond

Smith, J., delivered the opinion of the Court. Appellee (Hammond) owns land in Baltimore City which was mortgaged in 1927 to Dave B. Kirsner (Dave), of whose estate the appellant, Milton S. Kirsner (Milton), was the administrator. Hammond acquired the land in 1942. She claimed that she first learned of the mortgage when a title search was made in 1966 preparatory to sale.

An action was brought in which it was prayed that the mortgage be decreed “redeemed and released” and “not [to] constitute a lien or cloud upon the title to [the] property”. We shall affirm the decree of Judge Joseph Carter which granted the relief prayed. Dave acquired the property in 1927. He executed a mortgage at that time to a building association with which he was connected.

He was an attorney. On September 24, 1927, he conveyed the property to Couch and wife taking back a mortgage in the amount of $932.00. This conveyance and mortgage apparently were subject to the prior building association mortgage. Couch conveyed in 1932 to Miller.

Miller conveyed in 1942 to Hammond. Dave was counsel in connection with that transaction. The testimony was to the effect that no mention was made of the Kirsner mortgage. Dave died on December 20, 1944.

Letters of administration were granted to Milton on February 26, 1947. The parties stipulated that the only asset reflected in the administration account in Dave’s estate was a small sum on deposit in one of the Baltimore banks and that those entitled to share in the estate were the widow, Esther Kirsner, and Milton, a son. They further stipulated that Mrs. Kirsner died on June 9, 1963, that Milton was her ⁵⁷² executor, and that, although she left an estate in excess of $50,000.00, there is no reference in the estate to the subject mortgage. Hammond and her employer for more than 40 years, for whom she was alleged to have held title, both testified that their first knowledge of the mortgage was when the title search in 1966 revealed it.

Moreover, interestingly enough, Milton said the first knowledge he had of the mortgage was when he was approached within “three or four years” prior to the time of his 1967 testimony by counsel for Hammond, although he had access to the records of his father and was administrator of his father’s estate and executor of his mother’s. He found no record of the mortgage. This would place his first knowledge at more than 20 years after the Hammond purchase and close to 20 years after the death of Dave. In an annotation entitled “Statute of limitations or presumption of payment from lapse of time as ground for affirmative relief from debt or lien” appearing at 164 A.L.R. 1887 it is said: '“[Wjhere there is no privity of relation between the mortgagor and the person seeking to have the mortgage removed as a cloud, or to have his title quieted against the mortgage, and the latter is otherwise under no moral obligation to pay the mortgage debt, the courts seem generally to regard the situation as one appropriate for the granting of affirmative relief without exacting any condition of payment.” Id. at 1388.

The Maryland rule is to this effect and was fully reviewed by Judge Delaplaine for this Court in Cunningham v. Davidoff, 187 Md. 134 , 46 A. 2d 633 , 164 A.L.R. 1383 (1946), where he said: “In the early judicial history of England, the courts formulated the rule that, in the absence of a statute of limitations applicable to the foreclosure of a mortgage, an action to foreclose ■ ⁵⁷³ may nevertheless be barred by a presumption of payment arising in favor of the mortgagor in possession after the lapse of twenty years from the time the right of action accrues. The