Ressmeyer v. Norwood

Briscoe,. J., delivered the opinion of the Court. The fund here in controversy is the surplus proceeds arising from the sale of mortgaged real estate, situate in Frederick county, and owned by Charles 0. Tebbetts, of Washington Oity, D. 0.

The surplus in dispute is claimed on the one part by the appellant, as assignee of an alleged second, mortgage on the property, and on the other by certain creditors of the mortgagor, under attachment proceedings, in the Circuit Court for Frederick County. The property was sold on the 12th day of May, 1909, under the first mortgage, and after the payment of (the mortgage debt, interest and costs of the sale, the residue of the proceeds of sale was distributed in the proceedings, by Auditor’s Account A, to Henry F. Ressmeyer, the assignee of ithe second mortgage and by Auditor’s Account B, to certain creditors of the mortgagor, under their attachments. There were exceptions filed to each of these auditor’s accounts, by the parties in interest in the Court below, and from an order of the Circuit Court for Frederick County ■sustaining exceptions to and rejecting Account A, and finally ratifying and confirming Account B, with certain modifications this appeal has been taken. ³²³ Tbe facts of the case, upon which the appellant and appel-lees base their claims and contentions, are fully set out in the record and briefly stated are these: Charles C. Tebbetts and Minnie V., his wife, on the 10th day of July, 1906, conveyed by deed of mortgage to Charles A. Norwood, of Frederick county, certain tracts of land, containing 234 acres, more or less, situate and lying in that county to secure an indebtedness of $6,500. The real estate was sold under this mortgage, and the surplus proceeds of sale, as we have said, is the fund here in controversy.

On the 23rd day of May, 1908, Charles O. Tebbetts and Minnie V. Tebbetts, his wife, as parties of the first part, conveyed by way of second mortgage, to Mrs. Tebbetts, the wife, as party of the second part, the identical property as described in the first mortgage to Norwood. . The second mortgage recites that whereas Charles O. Teb-betts is justly indebted to the party of the second part, in the sum of six thousand six hundred and fifty-seven ($6,657.00) dollars, lawful money of the United States, secured to be paid by his certain bond or obligation bearing-even date herewith in the penal sum of thirteen thousand three hundred and fourteen dollars ($13,314.00) and conditioned for the payment of the sum of six thousand six bundled and dfty-sevm ($6,657.00) dollm on the fkst day of January, 1910, and for the better securing of this sum of money mentioned in the condition of the bond, and also in consideration of ten dollars, paid by the party of the second part conveyed the real estate mentioned therein, upon the terms and conditions therein set forth. On the same day of the execution of the mortgage Mr. Tebbetts gave and delivered to hi« wife, Mrs. Tebbetts, the bond or obligation mentioned in the mortgage, which recites: “Enow All Men by These Presents: That I, Charles C. Tebbetts, of the City of Washington, in the District of Columbia, am held and firmly bound unto my wife, Minnie V. Teb-betts, of the same place, in the penal sum of thirteen thousand ³²⁴ three hundred and fourteen dollars ($13,314.00), lawful money of the United States, to be paid to her, her executors, administrators or assigns, for which payment, to be made, I biná myself, my heirs, executors and administrators firmly by these presents. Sealed with my seal, dated the 23rd day of May, one thousand nine hundred and eight.

The condition of the above obligation is such, that if the above bounden Charles C. Tebbetts, his heirs, executors or administrators, shall pay, or cause to be paid, to the above named Minnie Y. Tebbetts, her executors, administrators or assigns, the sum of six thousand six hundred and fifty-seven dollars ($6,657.00) on the first day of January, 1910, and the interest thereon to be computed from the date hereof, then the above obligation shall be void, otherwise to remain in full force and virtue. Chas. O. Tebbetts (Wafer Seal.) Witness, LawkeNce Huett.” The mortgage was properly executed by Mr. and Mrs. Tebbetts, and was duly recorded on the 28th day of May, 1908, among the land records of Frederick county. To the mortgage was also attached a certificate by a notary public of the District of Columbia, that Mrs. Tebbetts, the mortgagee, appeared and made oath in due form of law that the consideration named in the mortgage was true and ]Dona fide as therein set forth, that she had not required the mortgagors or any person for them to pay the tax levied on the interest covenanted to be paid in advance nor would she require the same, or any tax levied thereon, to be paid by the mortgagors, pr any person for them during the existence of the mortgage.

It also appears that on, the day of the execution of the second mortgage, Mrs. Tebbetts executed and delivered to the appellant, Ressmeyer, of the City of New York, a deed of assignment of this mortgage and of the bond duly acknowledged before a notary public of the District of Columbia. The assignment is as follows: ³²⁵ “Know All Men by These Presents: That I, Minnie V. Tebbetts, the wife of Charles C. Tebbetts, of the City of Washington, District of Columbia, party of the first part, in consideration of the sum of ten dollars, and other valuable-considerations, lawful money of the United States, to me in hand paid by Henry F. Ressmeyer, of the City of New York, party of the second part, the receipt whereof is hereby acknowledged have granted, bargained, sold, assigned, transferred and set over and by these presents do grant, bargain, sell, assign, transfer and set over unto the said party of the second part, a certain indenture of mortgage, bearing date the 23rd day of May, in the year one thousand nine hundred and eigJit, made by said Charles C. Tebbetts and Minnie V. Tebbetts, his wife, together with the bond or obligation therein described, and the money due or to grow due thereon, with interest to date, and to hold the same unto the said party of the second part, his heirs, executors, administrators and assigns forever, subject only to the proviso in the said indenture of mortgage mentioned. And I do hereby make, constitute and appoint the said party of the second part my true and lawful attorney irrevocable in my name or otherwise, but at his proper cost and expense, to have, use and take all lawful ways and means for the recovery of the said money and interest, and in case of payment, to discharge • the same as fully as I might or could do if these presents were not made. In witness whereof, I have hereunto set my hand and seal the 23rd day of May, 1908.

MiNNiE V. Tebbetts (Wafer Seal.) Sealed and delivered in the presence of— LaweeNoe HuetyN On the 23rd day of May, 1908, the date of the second mortgage, the following agreement in writing was made and entered into between Charles C. Tebbetts, Minnie V. Teb-betts, his wife, and Henry E. Ressmeyer, and duly acknowledged before a notary public. “Agreement made and entered into this 23rd day of May, 1908, at the City of New York and State of New York, ³²⁶ between Charles C. Tebbetts, of the City of Washington, District of Columbia, party of the first part; Minnie V. Tebbetts, his wife, of the same place, party of the second part, and Henry F. Ressmeyer, of the City of New York, State of New York, party of the third part, witnesseth: That whereas said party of the first part is indebted to the firm of Aitken, Son & Co., of New York City, in the sum of $3,835.00; to Leon Rheims Co., of New York City, in the sum of $926.00; to H. Herrmann, conducting the business of a milliner in the City of New York, in the sum of $1,258.00; to the Second National Bank of the City of Washington, District of Columbia, in the sum of $800.00; to the firm of Moreland Bros., of said City of Washington, in the sum of $475.00, and to Saks Fur Co., of said City of Washington, in the sum of $363.00, making a total indebtedness in the sum of $6,657.00; and, • Whereas the said party of the first part desires his said creditors to abstain from taking legal proceedings to enforce the collection of their several demands, and as an inducement, the said party of the second part has agreed to guarantee the payment of said demands, and it has been agreed upon between the parties hereto that a certain farm belonging to the party of the first part located in Frederick county, Maryland, shall be mortgaged in an amount equal to the aggregate sum of said various demands, which mortgage shall be executed by the party of the first part to the party of the second part and shall be assigned by the party of the second part to the party of the third part, with the understanding that the said assignment shall be considered an assignment in trust, and that the said party of the third part shall out of the proceeds of said mort gage or the bond accompanying the same,, satisfy the said demands, or should the proceeds thereof not be sufficient then pro rate the proceeds among said several demands proportionate to the size thereof. Now, therefore, in consideration of the premises and the sum of one dollar by each of the parties to the other in hand paid, the receipt whereof is hereby acknowledged, it is hereby covenanted and agreed by and between the parties hereto, as follows, to wit: First: The party of the second part hereby guarantees the payment of said several demands at the times the same may ³²⁷ fall due and payable as per noxes now outstanding or hereafter to be given. Second: The party of the first part agrees to deliver to the party of the second part a bond in the penal sum of $13,314.00 secured by a mortgage on his farm in Frederick county, Mary' land, to secure the payment of said aggregate indebtedness of $6,657.00, to be paid to the said party of the first part on the 1st day of January, 1910. Third: The said party of the second part agrees immediately upon receipt thereof to transfer said bond and mortgage to said Henry F. Ressmeyer and also to deliver to said Henry F. Ressmeyer the said original mortgage and bond.

Fourth: The said Henry F. Ressmeyer agrees to record said mortgage but not to record said assignment of said mortgage, with the understanding that the said party of the third part shall have the right to record said assignment of said mortgage in case any default shall be made in any payments of the notes or demands, or in case judgment shall be recovered against eitber the party of the first part or second part or bankruptcy proceedings be commenced against them, or either of them. Firth: The said party of the third part shall hold the said bond and mortgage as trustee during his life, for tbe following uses and purposes, to wit: To receive the money which may become due thereunder and to divide the same pro rate and in proportion to the various claims and demands above set forth, among the owners of said demands and if necessary to foreclose said mortgage with the understanding that all expenses shall first he paid out of the proceeds thereof. It is further understood that any and ail payments that may be made by the party of the first or second part to any of the aforesaid creditors shall first be deducted from the share of such creditors which may become due him out of the proceeds of said mortgage. In witness whereof the parties have hereto set their hands and seals the day and year first above mentioned.

Ohaeles C. Tebbetts (Seal) MiNNiE Y. Tebbetts (Seal) HeNby F. Ressmeyeb (Seal) Test: LaweeNCe Huety, Robeet Gr. IIuNTEB. ³²⁸ Mr. Tebbetts on tbe 23rd day of May, 1908, the date of the mortgage, made the following affidavit, which is filed as ■an exhibit in the case: '“DISTRICT OF COLUMBIA, ss.: I, Charles C. Tebbetts being duly sworn, depose and say that I am the owner of a certain farm more particularly described in a certain indenture of mortgage to be delivered by me simultaneously with the execution of this affidavit to Minnie V. Tebbetts, my wife,, and which is to be assigned to Henry F. Ressmeyer, of New York City, to secure various demands against me, and I further depose that there are no liens or encumbrances oil said property, except a first mortgage now held by Charles A. Norwood for $6,500.00, the interest on which is all paid up to January 1st, 1908, this affidavit being made for the purpose of inducing the firms of Aitken, Son & Co.; Leon Rheims Co., and others to abstain from taking legal