Moore v. Modern Improvement Ass'n

Grason J., delivered the opinion of the Court. On January 10, 1947, the appellant entered into a written contract to sell to appellees three leasehold pieces of property situate in Baltimore City, for $30,000.00. Fifteen hundred dollars was paid prior to the signing of the contract and the balance was to be paid as follows: appellant was to obtain for appellees “a first mortgage in the amount of $15,000.00, to bear interest at six per cent per annum, and to be payable at the rate of $125.00 per month on the principal, plus interest, and' plus $50.00 per month on the expense account for the payment of taxes and ground rent on the property, the balance to be paid in cash, settlement within ninety days”. The contract also provides: “The purchaser agrees that the form of mortgage hereto attached shall be executed simultaneously with the execution of the deed of the property, and delivered to the mortgagee, costs thereof to be paid by the mortgagor at a cost of $21.00.” The form of mortgage, which was attached to the contract of sale and made a part of it, provides that it should be made to “Bernard J. Logue, hereinafter called mortgagee”, and states: “Whereas, the said-, the said mortgagor, is indebted to the said Bernard J. Logue, the said mortgagee, in the sum of Fifteen Thousand Dol ⁴¹ lars ($15,000.00) this day lent by the latter to the former and used as part of the purchase money of the lots of ground and improvements hereinafter described, and which sum together with the interest to accrue thereon and the fixed expenses of the said property, the said mortgagor hereby agrees to repay to the said mortgagee in the following manner, the sum of Two hundred and Fifty Dollars ($250.00) monthly on the first day of each month, succeeding the date hereof and which said sum shall be applied by the said mortgagee as follows: First, to the payment of the yearly taxes, ground rent, water rent, and fire insurance and extended coverage insurance on the said premises; Secondly, to the payment of the interest on the unpaid remainder of the said sum of money lent as aforesaid at the rate of six percent, per annum; Thirdly, the remainder to be credited upon the principal of the aforesaid mortgage, to secure all of which both the aforesaid principal and the said interest and expenses to accrue thereon, these presents having been a condition precedent to the said loan.

It is agreed that this loan may be prepaid in whole or in part at any time after the expiration of one year from the date hereof, but only by an additional payment in the amount of one percent (1%) on the sum so prepaid.” The appellees refused to carry out this contract because, they claimed, first, that it is indefinite, and second, “that the terms for payments embraced in the contract of sale and in the form of mortgage, are irreconcilable and repugnant to each other”. The appellant filed his bill for specific performance of the contract and the appellees demurred thereto. The chancellor sustained the demurrer and dismissed the bill, and the case comes here on appeal from that ruling. The appellees’ position is that the manner of payment of the mortgage, specified in the body of the contract, as distinguished from the manner of payment of the $15,000.00 mortgage as specified in the form of the mortgage to be used, contained in the contract, is so irreconcilable and repugnant as to render the contract ⁴² uncertain, and that it cannot be specifically enforced.

It. is claimed that the manner in which the $15,000.00 mortgage is to be paid, as set out in the body of the contract, is clear, distinct, and certain, and the manner in which said mortgage is to be paid, as provided in the form of mortgage contained in and a part of the contract, is also clear, distinct and certain, and that the ordinary rules of construction cannot render the two means of payment of the mortgage reconcilable. Looking at the body of the contract, it will be seen that no property is mentioned upon which the mortgage will rest. Neither is the name of the mortgagee mentioned, and the parties to this contract ¡agreed to the form that the mortgage should take, after the body of the agreement was written. The form of the mortgage, therefore, it may be presumed, is the final agreement of the parties