Neal v. Rathell

Miller, J., delivered the opinion of the Court. The present appeal in this equity cause is simply "from a pro forma order sustaining a demurrer to the amended hill, and dismissing the same. The only alleged cause of demurrer is multifariousness, and counsel for the appellees have declined to argue any point bearing upon the merits of the controversy. We shall not therefore on this appeal attempt to decide any question save the specific one raised by the demurrer. ⁵⁹⁶ From the averments of the original and amended bills, and from the exhibits filed therewith it appears in substance: That Louis W. Neal on the 2d of October, 1871, conveyed by an absolute deed his farm in Talbot County, containing about 654 acres, to Mary E. Sangston for the consideration of §8,000 ; that two days thereafter (Oct. 4th, 1871,) Mrs. Sangston executed a perpetual lease of the farm to Neal, reserving an annual rent of §720, payable quarterly in advance; that this lease contains, among others, a covenant to the effect that the lessor would at any time during the three months, commencing on the 4th of July, 1874, and ending on the 4th of October of the same year, reconvey the property to the lessee, Neal, upon his paying during that limited period the full sum of §8000 and all arrears of rent then due under the lease; that the deed and lease were both recorded on the same day; that Neal continued to pay the rent for a number of years, but being unable to do so longer, Mrs. Sangston brought an action of ejectment against him for the farm in the Circuit Court for Talbot County, and a judgment therein was entered against him; that Mrs. Sangston, subsequently, on the 8th of August, 1878, sold and conveyed the farm in fee for §10,000 to Charles Rathell, who afterwards mortgaged it to Miss Martha W. Hughlett; that Rathell has since died intestate, and his widow, heirs-at-law, and administrators are the defendants to the original bill, and they with Miss Hughlett are the defendants to the amended bill.

The original bill was filed on the 3rd of June, 1886, by Neal alone, and charges substantially that the transaction between Mrs. Sangston and himself, which took the form of an absolute deed and lease, was simply a cover for a loan of §8000 at the usurious interest of nine per cent.; that Rathell purchased the property and took his deed with knowledge that this transac ⁵⁹⁷ tion was, in truth and fact, a mortgage at usurious interest; that he has the right to have it so treated with the consequent right to redeem the property, and to have an account stated showing the amount actually due under this mortgage, after eliminating the usury. The relief prayed accordingly is, 1st, that this deed and lease may he construed as an usurious mortgage; 2nd, that the same may he purged of its usury; 3rd, that an account may he stated, showing the true amount due upon this loan, and 4th, that the complainant may have a day in which to redeem the property, and in default of such redemption that the property he sold and the defendants’ lien paid off, if on statement of the account anything shall he found due them. Rothing further Avas done in the case, so far as the record shorvs, for more than two years, until the 11th of August, 1888, Avhen the Court passed an order granting leave to the complainant to amend his hill, and on the 13th of the same month the amended hill was filed hy Real and several other parties who claim under a mortgage of this same farm, executed to them hy Real, on the 18th of November, 1871, to secure certain notes on which the mortgagees had become security for him. In this hill the averments ,of the original hill are repeated in regard to the transaction between Real and Mrs. Sangston, and there is, substantially, the same prayer for relief so far as Real is concerned. ■ The only other averments that need iioav he stated are those averring the execution of the mortgage of the 18th of Rovemher, 1871, hy Real to the other complainants, the number and amount of the notes thereby secured, which of them have been paid, and the amount still due, and that Real has no other property except this farm out of which the claims of these other complainants can he realized.

It is averred hy all of them, including Real, that they are entitled to have thetrans ⁵⁹⁸ action between Neal and Mrs. Sangston construed and declared to be a mortgage, and tbat Neal has the right to redeem the