Snowden v. Pitcher

Grason, J., delivered the opinion of the Court. The record shows that on the fourth day of January, in the year 1872, James M. Lewis and wife, conveyed hy deed of that date to the appellees a certain lot of ground in Baltimore City, and particularly described in said deed, which was recorded on the day of its date. On the seventeenth day of January, 1873, James M. Lewis and wife conveyed the same lot of ground to the appellant by deed of that date, which was recorded on the 20th day of the same month. On the 13th day of February, 1875, the appellant filed the bill in this cause alleging, that the deed to the appellees was void as to him, that it cast a cloud over his title, and praying the Court to declare it void.

To this hill the appellees demurred, hut the record does not show what disposition, if any, was made of the demurrer. The appellant afterwards filed an amended or supplemental hill, in which he charges that the deed to the appellees was void as to him, because, at the time of its execution, there was also executed by James M. Lewis and James M. Lester, agent for the appellees, a contract under seal, as a defeasance of the deed, and an explanation of its being designed to have the effect of a mortgage, but which was never recorded therewith, as required hy section 1 of Article 64 of the Code. To this amended hill the appellees demurred, and the demurrer was overruled. The appellees filed their answer to the hill, and among other things deny, that the contract under seal, and filed as Exhibit J. M. L. No. 3, was executed hy Lester as their agent.

Evidence was taken, and, on final hearing, the Circuit Court of Baltimore City, passed a decree dismissing the bill, and from that decree this appeal has been taken. It was contended upon the part of the appellant that the deed to the appellees, though absolute on its face,- was in fact a mortgage to secure the payment of money, and being without the affidavit of the grantees, as required hy ²⁶⁵ section 29 of Article 24 of the Code, was void as to him. There is no doubt that if, instead of the conveyance to the appellees being absolute on its face, it were a technical mortgage, the absence of the required affidavit would render it void as to creditors of the mortgagor, and subsequent purchasers without notice. But the question presents itself, whether a deed conveying the fee and purporting by its terms to be absolute, although it be expressed therein, that it is executed as collateral security for the payment of money, comes within the operation of the 29th section of the 24th Article of the Code.

This question has never before been directly presented in any case in this Court. There have been several cases before the Court, in which the question has been raised, whether the affidavit was required to a deed of trust for the benefit of creditors, and in all of them it was decided that it was not, and from the language used by the Court in those cases it may fairly be inferred, that the Judges were of opinion, that the section and Article of the Code, before referred to, applies only to technical mortgages. In the case of Stockett, Adm’r vs. Holliday, 9 Md., 492 , Judge Brewer, from whose decree the appeal was taken, says in his opinion, that “ the law (now codified in sec. 29 of Article 24,) seems to apply to deeds of mortgage, technically such.” And Judge Mason, in delivering the opinion of the Court of Appeals, says, “we concur, too, with the Court below, that this deed is not a mortgage, but a deed of trust, and therefore, need not be sworn to.” Judge Brewer, whose opinion and decree were under review, having said that the law seemed to apply only to deeds that are technical mortgages, and the Court of Appeals having said that they concurred with him, that the deed then under consideration was not a mortgage, and therefore needed no oath, it may be fairly presumed that this Court used the word “mortgage” in the same sense in which Judge Brewer had spoken of it, that is a “mort ²⁶⁶ gage, technically such.” In the case of Charles vs. Claggett, 3 Md., 86 , the question arose, whether deeds of trust did not come within the operation of the Code, and require affidavits, and the Court of Appeals were divided upon it, Chief Justice. Le Grand and Judge Mason being of opinion that the oath was required, and Judges Eccleston and Tuck holding that it was not.

We have seen that- Judge Mason had changed his views on this question, when the case of Stockett, Adm’r vs. Holliday was before the Court, and Judge Eccleston, in his opinion, which was concurred in by Judge Tuck, says, “In my opinion, the Act of 1846, should be construed as including mortgages, technically such. It is only necessary to mention one class of instruments which have been held in equity to be mortgages, to show, beyond controversy, that the statute could never have been designed to embrace all equitable mortgages. A deed absolute on its face by mistake, if intended to be a mortgage, will be so declared by a Court of Equity, and, I presume it will not be said, that if such a deed is without the oath, it will be void under the Act. If there are any equitable mortgages not embraced by the statute, why may it not be construed as applicable to those only of a technically legal character.

In so doing, much confusion and embarrassment will be avoided, especially in reference to making provision for