McCauseland v. Baltimore Humane Impartial Society

Opinion by Jones, J., ⁷⁴¹ This is an appeal from an order of the Circuit Court of Baltimore City which overruled exceptions filed to the ratification of a sale made under a decree of that Court and finally ratified the sale. It appears that on the 6th day of November, 1879, the appellants executed to Samuel Turbutt a mortgage of certain leasehold property in the city of Baltimore belonging to the appellant, Annie McCauseland. The mortgage was given to secure the payment of five hundred dollars, a debt owing from the mortgagors, with interest from date; and recited that the said debt was “ evidenced by their joint promissory note for that amount dated November 6th, 1879, and payable twenty-four months after date with interest from date for which four interest notes are given, payable at the end of every six months.” The mortgage also contained the assent of the mortgagors “ to the passing of a decree by the Circuit Court of Baltimore City for a sale of the said property to take place at any time after default in payment of said mortgage debt or the interest thereon or the taxes ” in accordance with provisions contained in the Public Local Laws of the State, title, city of Baltimore. Samuel Turbutt died, it appears, sometime in the year 1898, leaving a will, which does not appear in the record, but it is a necessary inference from what does appear that a portion of his estate passed under the will to the appellee in this case.

There seems to have been a caveat to the will, which being withdrawn, Covington D. Barnitz qualified as the executor thereof and proceeded to administer the estate. In May, 1900, he made distribution of the estate and on the 17th of that month executed to the appellee an assignment of two ⁷⁴² mortgages specifically referred to and of “ all the right, title and interest of Samuel Turbutt, deceased, in the properties described in said mortgages and in the mortgage debt intended to be secured thereby.” The mortgage under which the sale was made in this case was one of the mortgages so assigned. On the 20th of November, 1900, the appellee proceeded under the clause in the mortgage giving assent to a decree and the provisions of the local law applicable thereto to procure a decree for a sale of the mortgaged premises and on the same day a decree directing a sale was passed in ihe usual form. Under this decree a sale was made by the trustee named in the decree and reported which upon exceptions thereto was set aside whereupon a second sale was made and reported and the exceptions to this last mentioned sale are those with which we are now dealing.

Before taking up the exceptions it may.be premised that what has given rise to the controversy is the non-production of the mortgage note referred to in the mortgage. The non-production of the note is accounted for by proof offered by the appellee which in the absence of all contradictory evidence must be taken to establish the loss or destruction of the note. The proof further goes to show that Samuel Turbutt was at the time of his death the owner of the mortgage and of the mortgage debt. As to this there is no effective contradiction of the- evidence on the part of the áppellee.

It also appears clearly from the evidence submitted by the appellee that the mortgage debt, evidenced by the note, remains unpaid. The mortgage in reciting the note as evidencing the debt secured thereby does not describe it as a negotiable note, nor does it otherwise appear that that was its character. In the case of Yingling v. Kohlhass, 18 Md. 148 , it was held that where it was not shown that the note sued on was negotiable, the burden of proving which was upon the defendant (the maker), and the execution, delivery and amount of the note, were shown and that it was unpaid and lost and destroyed a recovery could be had upon it in an action at law. The right of a party to recover upon a lost note upon the state of proof indicated in the case just cited being thus recognized it would seem logically to follow that ⁷⁴³ the case we have here, upon the state of proof therein, is in the same attitude before the Court, with respect to the relation of the parties under the mortgage, as if the note here in question were produced.

The accounting made by the appellee for the non-production of the note is as effective to enable it to recover the indebtedness evidenced thereby as the production of the note itself would be; and there would seem to be no reason therefore why there should not be the same right to enforce payment of the indebtedness by proceedings under the mortgage as if the note were actually produced. This being so it will not be necessary to go into an inquiry as to how far the distinctive powers of a Court of equity to give relief in cases of lost instruments might be invoked in this case-The exceptions to the sale which raised the controversy here will be