Mashkes v. Solid Building & Loan Ass'n

Sloan, J., delivered the opinion of the Court. This appeal is from a judgment in a suit at law on the common counts and two special counts in assumpsit for the deficiency on a mortgagee’s sale, against the grantees of the mortgagor. Jacob Zetzer, by three mortgages dated March 9th, 1925, conveyed to the Solid Building & Loan Association, appellee and plaintiff, three parcels of land to secure the payment of $4,000 in each of the mortgages, upon the terms and conditions usual in Baltimore City building association mortgages as to payment and foreclosure. On December 7th, 1925, the mortgagor, Zetzer, conveyed the mortgaged property to Morris Mashkes and Simon Mashkes, appellants and defendants, subject to all of the mortgages, which the grantees undertook and agreed to pay.

The declaration said the conveyance was made with the consent of the building association, and that the purchasers, the Mashkes, covenanted and agreed with it to pay the mortgage debt with interest. It does not appear how much was paid on the mortgage debt by the Mashkes; ²⁷² but it does appear that about April 1st, 1929, they came to the association with the request for an extension of four years on the maturity of the mortgage, and on April 4th, 1929, by letter of that day, the association consented “to extend the maturity of the three mortgages * * * for an additional period of four years from the date of maturity.” How much was paid by the defendants, when they ceased paying, or when the default occurred, do not certainly appear from the incoherent, unresponsive, and evasive testimony, but these are all questions of fact on which the jury found against the defendants. According to the bill of particulars, the total amount paid on account of the principal by Jacob Zetzer in nine months, and by the defendants after the conveyance by Zetzer, was $4,565.54. The amount distributed from the proceeds of sale was $2,495.81, leaving a balance, after adding interest, of $5,109.95.

The contentions of the parties are mainly questions of fact rather than of law. There was but one instruction given by the court, which instruction was that if the jury found that Jacob Zetzer conveyed his equity of redemption to the defendants and that they agreed with him to pay the mortgage debt “or that, on, after or about the time of said transfer defendants agreed to assume payment of the balance of the said unpaid mortgage debt, if the plaintiff waived a forfeiture thereof which the plaintiff agreed to do,” or if the jury find the plaintiff extended the maturity of the mortgage and delayed foreclosure proceedings upon the promise of the defendants to pay the mortgage debt and that the mortgage debt was not paid, then their verdict should be for $5,109.95 with interest in their discretion from March 8th, 1932. The defendants filed special exceptions to every statement of fact in the court’s instruction, (1) denying that the defendants “would pay the mortgage debt against said properties to the plaintiff”; (2) that they agreed at any time to assume payment of the balance; (3) that the plaintiff waived a forfeiture of its right to foreclose upon ²⁷³ default; or (4) that the maturity of the debt was extended upon the promise of the defendants to pay the mortgage debt; which were overruled, there being evidence to the contrary, as we find from the record, the third exception going also to the rulings on the exceptions to the court’s instruction. The instruction has three alternative propositions of law, each going to a verdict.

The first is that “if the jury find at the time of said transaction defendants agreed with Zetzer to pay the mortgage debt against said property to plaintiff * * * then the verdict must be in favor of the plaintiff,” etc. This