Snook v. Munday

Page, J., delivered the opinion of the Court. John Munday, deceased, in his lifetime together with the • appellee executed a mortgage upon certain lands to secure the payment of $1,600, evidenced by two promissory notes in favor of Edward Mealey. The appellee, who under the last will of John Munday is the life-tenant of the mortgaged property, filed a bill in the Circuit Court of Washington County praying for the writ of injunction to' restrain the appellant as assignee of the debt and mortgage from making a sale and for a decree requiring the appellant to receive from her as the surety of John Munday the money due and owing so that she may stand in the place ⁵¹⁵ of the mortgagee and be subrogated to all of his legal and equitable rights. This bill was also demurred to by the appellant ; the demurrer was overruled, and a decree passed allowing the relief prayed for, whereupon the appellant took this appeal.

One of the contentions in support of the demurrer made by the appellant is that the amended bill is not an amendment of the old one but in fact a new bill, which the Court should not have permitted to be filed. But an application to amend is addressed to the diecretion of the Court before whom it is made, and is not the subject of an appeal to this Court. In Calvert v. Carter, 10 Md. 108 , where the Court was considering the effect of the Act of 1854, ch. 30, now Article 16, section 16 of the Code, it was said: “The best construction we have been able to give it is, that it was intended to enlarge the time within which the amendments may be made in proceedings in equity. Formerly the' ‘proper time’ to apply for leave to amend, was before the cause was at issue.

The Act authorizes amendments to be made at any time before final decree. They are still to be made ‘on application to the Court’— ‘so as to bring the merits'of the case fairly to trial.’ The Court to which the application is made must of necessity judge of the propriety of the proposed amendment * * * We think the Act of 1854 must be construed in the same way; it does not in terms confer any right of appeal and we think none exists.” The relief prayed for in the bill is based upon the claim of the appellee that she is “simply” the surety of her husband. An additional contention of the appellant is that the complainant cannot now set this up because of the fact that by the terms of the mortgage it is established that “the debt is a joint and several one.” But this is not a proceeding between the payers and the holders of the note, nor is there any attempt to deny the liability of the appellee as a joint maker. The allegation of her suretyship only, is not made to alter or vary her liability to the payee, but solely for the purpose of proving her relation to her co-maker.

If in fact, whatever may be the ⁵¹⁶ form of the transaction, as between herself and her co-maker she is a surety only, it would be contrary to the principles of equity, for the creditor to permit or by his conduct to cause her co-maker, the principal debtor in fact, to be exempt from payment, or from liability to his surety to make good what the latter has paid on his account. This is an equity binding upon the conscience of the creditor, though not within the actual words of the contract. All the rights of