Snook v. Zentmyer

Briscoe, J., delivered the opinion of the Court. The questions in this case arise on a demurrer to a bill in equity filed in the Circuit Court for Washington County to restrain by injunction the sale of mortgaged - real estate and to redeem the mortgage. The facts out of which the controversy arose, briefly stated, are these. By the last will and testament of Dr. John Munday, of Washington County, he devised a certain tract of land on the Funkstown road, in that county, containing fifty acres, more or less, to his wife during her natural life and at her death to be sold by his executors and the proceeds to be applied, first to the payment of the mortgage debt, principal and interest,' which was upon the' farm, and the residue to be distributed as directed by the will.

The appellant, Mrs. Snook, and one of the appellees, Mrs. Zentmyer, are named as executrices in the will, and are also legatees under-the will to the extent of one-tenth of the proceeds of sale, in remainder after the expiration of ⁴⁸⁷ the life-estate to the widow, and after the payment of the mortgage debt. Mrs. Munday, the widow, is still living and in the possession of the property, which cannot be sold under the power contained in the will, until the death of the widow. Snook v. Munday, 90 Md. 701 . It further appears that the mortgage referred to in the testator’s will was executed on the 26th of February, 1878, to secure an indebtedness of $1,600 to Edward W. Mealey, and was subsequently assigned for a valuable consideration to the appellant, Mrs. Snook.

On the 16th of November, 1899, the property was advertised for sale by Mrs. Snook, the assignee of the mortgage, under a power of sale contained in the mortgage, but the sale was subsequently restrained by an injunction, granted on the same day by the Circuit Court for Washington County. The case was subsequently heard on demurrer to the bill, and from an order passed on the first of March, 1900, overruling the demurrer and requiring the defendant to answer the bill, this appeal has been taken. The principal question, then, for us to determine, is whether a person occupying the position of the plaintiff in this case, is entitled to maintain a bill of this kind. The bill is one for redemption and seeks to redeem real estate mortgaged by the testator.

It is filed by a legatee under the will, whose interest is limited to the extent of one-tenth of the proceeds of sale in remainder after the expiration of the life-estate and payment of the mortgage debt on the property, against a mortgagee holding the legal estate and also having precisely the same beneficial interest under the will in the equity of redemption as the plaintiff. The law seems to be well settled that every person having a legal or equitable title or lien in the mortgaged property, or any person having a beneficial interest therein, which he is entitled to protect, has a clear right to redeem. McNiece v. Eliason, 78 Md. 177 ;