Myerberg v. Hall

Adkins, J., delivered tbe opinion of tbe Court. This appeal is. from an order overruling the demurrer to a bill of complaint in which the plaintiffs claim an equitable one-half interest in several lots, of ground in Baltimore City, the legal title to which was in the defendants. The-bill alleges that plaintiffs were appointed as receivers of the Provident Building Association of Baltimore City by a decree of the Circuit Court of Baltimore City in the case of William H. Tabeling el ail. against said building association, and have duly qualified; that one H. Walter Ganster, Jr., secretary and treasurer of said association, embezzled therefrom large sums of money prior to his death on September 8, 1928; that said Ganster and the defendants were the owners as tenants in common of several lots of ground in Baltimore City as follows: Nos. 1106, 1108 and 1110 Madison Avenue, 1010 St. Paul 'Street and 825 and 827 Hamilton Terrace; t-hat on July 23rd, 1928, in consideration of five dollars and other good and valuable considerations, he executed an assignment to said association of all his right, title and interest and estate; which consisted of an equitable one-half interest in said lots, the original assignment being filed as an exhibit; that, at the time of said assignment, the legal title to lots Nos.. 1106, 1108 and 1110 Madison Avenue was vested in Nathan J. Myerberg and Annie Myerberg, his wife, they having acquired said title by a deed from the Convention of the Protestant Episcopal Church in the Diocese of Maryland, dated November 3rd, 1920, and duly recorded; that the legal title to the other lots was vested in Nathan J. Myerberg, No. 1010 St. Paul Street, by deed from James Erick el al., to Nathan J. Myerberg and H. Walter Ganster Jr., dated February 26th, 1920, and deed from H. Walter Ganster, Jr., and wife to Myerberg, dated March 22nd, 1923, No. 825 Hamilton Terraco, by deed from Max Cohen dated February 14th, 1922, and No. 827 Hamilton Terrace by deed from Netherclift Apartment Company dated June 18th, ⁵⁸⁰ 1920, all of which deeds were duly recorded; that said properties are subject to certain outstanding and unredeemed mortgages, the amount due and unpaid thereon being unknown to plaintiffs, and that plaintiffs have no> way of ascertaining the value of their interest in said properties, this information being solely within the knowledge of the defendants; that said properties are highly productive improved parcels of real estate; that the rents therefrom have been and are being collected by Nathan J. Myerberg, who has been and is applying them to his own use and benefit,'to^ the exclusion of plaintiff’s enjoyment thereof in common with said defendants; that said defendants have never accounted, within the knowledge of plaintiffs, toi said Ganster or to plaintiffs, for his and their share of the rents, issues, and profits derived from said properties, nor have they disclosed to plaintiffs the value of their interest therein. The prayer of the bill is for: (1) An injunction restraining defendants, pending this action, from conveying, incumbering, or otherwise disposing of said properties.

(2) A decree directing defendants to convey to plaintiffs an undivided one-half interest therein, subject to such mortgages as may be properly a charge thereon, and to redeem said properties from the operation and effect of such mortgages as may not properly be liens thereon. (4) For a disclosure and discovery by defendants of what moneys they now have on hand and an accounting for all income, rents, issues and profits or returns received from said properties, for which said defendants have never accounted to either H. Walter Ganster, Jr., or to plaintiffs. (5) A decree requiring