Perkins v. Emory

Bartol, C. J., delivered the opinion of the Court. By the last will of the late William Emory the husband of the appellee, the three pieces of property devised to the appellant Mrs. Perkins, who was the testator’s daughter, were charged with the payment of $125 per annum to Mrs. Emory. The annuitant not having been a party to the deed from Perkins and wife to William R. Realey, or to the mortgage from Realey to Carroll, her rights were in no manner affected thereby; but she was entitled notwithstanding those transactions, to enforce her charge against any or all of the property devised to Mrs. Perkins. It appears however from the proceedings that she has agreed, the payment of the arrears of her annuity, and of amounts payable to her in the future, may be enforced against the several parcels of property in their just and equitable proportions, in such manner as may be conformable to the equitable rights of Perkins and wife and Carroll, growing out of the transactions between those parties.

This we understand to be the substance and effect of the agreement “ Exhibit B,” contained in the record. If the deed from Perkins and wife to Realey stood alone, we should be inclined to construe it as intending to subject ³⁶ the land thereby conveyed, to the payment of the whole of Mrs. Emory’s annuity, to the exoneration of the Chester-town and Centreville property; and as a consequence the mortgage of Carroll would he subject to the same burden. But conceding that such would be the true construction of the deed, it is very clear that this arrangement was modified by the subsequent transactions between the parties. It appears that on the 1st day of February, 1861, a few days after the deed, Realey executed a mortgage of the land in favor of Mrs. Perkins, to secure the payment of $1000, and interest, being for the purchase money of the land.

Afterwards, on the 9th day of November 1861, Perkins and wife having released the mortgage of Realey, the latter executed a mortgage of the same land to David Carroll for $5000, which as therein recited, it was agreed should he a first mortgage of the land; and on the same day Realey executed a second mortgage of the same property in favor of Mrs. Perkins, to secure the payment of $2084, the balance of purchase money due by him. In the last-mentioned mortgage it is recited: “ whereas Elizabeth Emory, widow of William Emory, late of Queen Anne’s County aforesaid, deceased, has an annual rent-charge upon the land and premises above described, of the sum of one hundred and twenty-five dollars; it is further provided that the said William B. Realey may at his option, defer the payment of the said sum of $2084, for and during the natural life of the said Elizabeth Emory, unless the rent-charge shall be sooner released; the said William B. Realey paying the interest thereof to the said Elizabeth Emory, and charging the same against any interest due the said Margaret R. Perkins, anything herein contained to the contrary notwithstanding. But it is expressly hereby provided, that if the said Elizabeth Emory shall at any time release the rent-charge aforesaid, that then the said last mentioned proviso shall be void and of no force or virtue in law.” ³⁷ It is obvious tbat tbe intent of the parties in these transactions, as far as they were able to do so, was to give to Carroll a first mortgage upon the property free and clear from the charge of Mrs. Emory’s annuity, and