Levin v. Hirschman

Digges, J., delivered the opinion of the Court. On July 30th, 1928, the appellee filed in the Circuit Court of Baltimore City a petition, to which the appellant Beatrice Dorothy Levin, assignee, demurred, which demurrer was sustained by the court, with leave to amend. Wherou pon the appellee, on January 14-th, 1929, filed his amended petition, to which also there was a demurrer filed by the appellants (defendants below), the said appellants, by petition and order of the Circuit Court, being all of the heirs at law of Wolf Levin, deceased; Beatrice Dorothy Levin, assignee, and Beatrice Dorothy Levin, administratrix d. h. n. of the estate of Wolf Levin, deceased, having been made parties defendant. On April 17th, 1929, the demurrer to the amended petition was overruled, with leave to answer within ten days from that date.

The defendants refused to answer, and appealed from that order. The amended petition alleges that in August, 1917, Dena Levin and Wolf Levin her husband executed a mortgage to the Pearl Street Perpetual Savings & Building Association of Baltimore City on premises known as 1427 West Baltimore Street, in the City of Baltimore, to secure ¹⁶⁴ the payment of $2,392. This property was that of Dena Levin, the wife, a part of which was fee simple, and part was subject to an annual ground rent of $75. That on September 27th, 1917, Dena Levin died, leaving, as her distributees and heirs at law, Wolf Levin, her husband, and children, of whom Beatrice Dorothy Levin is one.

That letters of administration on his deceased wife’s personal estate were granted to Wolf Levin on October 26th, 1917, the usual notice to creditors given and inventory filed, and on June 11th, 1920, the first administration account was stated, wherein the property No. 1427 W. Baltimore Street was retained by the administrator. That in May, 1924, Wolf Levin and Eeba Levin, his second wife, executed a mortgage to the appellee in the sum of $4,500, secured by a number of properties, among which was 1427 W. Baltimore Street, on which mortgage there is now due the sum of $2,000 and accrued interest, and which is secured by the lien on his interest in said property, 1427 W. Baltimore Street. That, Wolf Levin having died without completing the administration of the estate of his first wife, Dena Levin, letters of administration d. b. n. on said estate were on October 7th, 1925, granted to Beatrice Dorothy Levin, who since that time has not filed any account as administratrix d. b. n. That thereafter, on the 21st of April, 1926, the mortgage of the Pearl Street Building Association was assigned to Beatrice Dorothy Levin for and in consideration of $522.72, the amount then due thereon, which mortgage is that herein being foreclosed.

The prayers of the petition are: That the mortgage of the appellee be declared a lien upon the property, 1427 W. Baltimore Street, and on the proceeds of the sale thereof; that the rights of the respective parties to the proceeds of sale of said property be “marshalled” ; and for general relief. The record discloses that the mortgage given by Wolf Levin and Dena Levin, his first wife, on the property 1427 W. Baltimore Street, was assigned to the appellant Beatrice Dorothy Levin in consideration of the payment by her, in her individual capacity,- of the sum of $522.72, the balance due and owing on the mortgage; that she, ■ as assignee, foreclosed ¹⁶⁵ the mortgage and sold the property for $4,750. After settling the balance due on the mortgage, and costs, there remained for distribution among the heirs and personal representatives of Dena Levin, or whoever might be legally entitled to any part thereof, the balance of the money derived from the mortgage sale. Before any distribution thereof was made, the appellee filed in the mortgage foreclosure proceedings his petition as above set forth.

So that the question presented is, whether or not under such circumstances the equity court has jurisdiction to determine to whom, and in what amounts, the balance of the fund i n the hands of the assignee of the Pearl Street Building Association mortgage should be distributed, and make distribution accordingly. The grounds relied on in the demurrer to the petition are multifariousness, and principally, that the petitioner should assert his claim in the orphans’ court. We shall not discuss the question of multifariousness further than to say that there is no substantial basis for an objection on this ground. The demurrer admits the allegation of the petition that a part of the property known as 1427 West Baltimore Street is fee simple and the residue leasehold; and the appellee contends that, for this reason, the demurrer being a general one to the whole petition, if it be found good as to a part of the petition, or in other words, if it be found that the petitioner is entitled to any relief, the demurrer was properly overruled.

This contention, we think, is sound, and is the established rule in Maryland. Millers Eq. Proc., sec. 134, p. 172; Miller v. Baltimore Marble Co., 52 Md. 642 ; Dennison v. Yost, 61 Md. 139 ; Hogan v. McMahon, 115 Md. 195 ; Boland v. Ash, 145 Md. 465 . Eor the reason that this case will be remanded for further proceedings, we prefer not to rest our decision exclusively upon this rule, but will state our views upon the real question in controversy.

The allegations in the petition of the appellee are not as full and specific as they might be, but they are sufficient to indicate with certainty that the property 1427 W. Baltimore Street was that of Dena Levin; that she died intestate, leaving, as her next of kin and heirs at law, a surviving husband, ¹⁶⁶ Wolf Levin, and children; that Wolf Levin was appointed administrator of her estate by the Orphans’ Conrt of Baltimore Oity, qualifying as such, giving the usual notice to creditors, filing an inventory and a first administration account. It does not appear whether any debts were proved against Dena Levin’s estate in the orphans’ court, and if so, whether the same have been paid; but, in view of what we shall hereafter