Stewart v. McCaddin

Burke, J., delivered the opinion of the Court. On the 7th of February, 1906, James McCaddin executed and delivered to Hyland P. Stewart, trustee, a mortgage upon ³¹⁵ certain property situated in Baltimore City to secure a loan' of four thousand dollars. This sum was payable in three years from the date of the mortgage, and was to bear interest at the rate of six per cent per annum, payable half yearly. The mortgage contained an assent by the mortgagor to the passing of a decree for the sale of the mortgaged property in accordance with sections 720 to-730 inclusive, of the Act of 1898, ch. 123.

It is also provided that in case of any default being made in the payment of the mortgage debt, principal or interest, in whole, or in part, at the time or times limited and mentioned for the payment of the same, or in case of any default being made in any of the covenants, or conditions of the mortgage, then the whole mortgage debt secured should be deemed due and payable, and the mortgaged property might be sold by the trustee named in such decree as might be passed under the assent-above mentioned. The mortgagor covenanted to pay, when legally payable, all ground rents, taxes, assessments and public charges and dues levied, or assessed, or to be levied or assessed on the mortgaged' property. One piece of property embraced in the mortgage was sold by the mortgagor, and the mortgage was released as to that part, and at that time one thousand dollars was paid on account of the mortgage debt. On the 20th of April, 1907, the mortgagee filed a petition in the Circuit Court No. 2, of Baltimore City, alleging that the mortgagor had made default in the payment of interest on the debt secured by the mortgage, and also in the payment of taxes on the property, whereby, he alleged, that under the terms of the mortgage the entire mortgage debt had become due and demandable.

He filed the original mortgage with the petition, and prayed that a decree might be passed for the sale of the two remaining lots of said mortgaged premises in accordance with the assent of the mortgagor contained in the mortgage. On the same day the Court passed a decree for the sale of the property, and appointed Hyland P. Stewart, trustee, to make the sale. On the 10th day of May, 1907, ³¹⁶ the mortgagor filed an answer to this petition in which he denied that there has been any default made by him in the payment of the interest as alleged, and stated that on the 9th day of April, 1907, he had tendered to the mortgagee a certified check of ninety dollars in payment of interest then due, which the mortgagee had refused to accept. He further stated that on April 9th, 1907, he paid the taxes for the year, 1905, on certain property mentioned in the mortgage, and that ón June 6th, 1906, he paid the taxes for 1905 on certain other property included in the mortgage, and that on January 24th, 1906, he paid taxes for the year 1906 on both pieces of-the,property included in the mortgage, and that on April 25th, 1907, he had paid taxes on the mortgaged property for the year 1907.

He, therefore, alleged that there was no arrearage of taxes upon any of said property conveyed to secure said debt. He then alleged that neither the principal nor the interest was then due, except the interest which he had tendered in the manner stated in his answer, and that the trustee had no right whatever to sell the mortgaged property or foreclose the mortgage as prayed for in his petition, or as provided by order of Court passed thereon on the 20th day of April, 1907. He filed with his answer the certified check referred to, which heallegeshehad tendered to the mortgagee, and also the tax and water bills showing that they had been paid on the date mentioned. He asked the Court to rescind its order of the 20th of April, 1907, and to dismiss the petition of the mortgagee upon which the order was passed.

He then filed a petition in which he refers to and reiterates the allegations of his answer, and prayed that the trustee may be enjoined from selling the mortgaged property under the decree of April 20th, 1907, or from foreclosing the mortgage, or proceeding in any manner with the foreclosure thereon. The Court ordered the injunction to issue upon the filing by the petitioner of an approved bond in the penalty of two thousand dollars. An approved bond was filed and the injunction was accordingly issued. On June 19th', 1907, the trustee filed an answer to the appellee’s petition for an injunction.

In this answer is stated ³¹⁷ with particularity the defaults of the appellee under the mortgage, and all the equities of the petition relied upon by the mortgagor for an injunction were directly denied. This answer, which was under oath, stated that at the time of the execution of the motrgage, the mortgagor produced the tax bills for the year 1906, and stated that all back taxes were paid; that it was subsequently learned that none of the taxes for 1905 had been paid, and that the mortgagee immediately called the mortgagor’s attention to the unpaid taxes, which he promised to pay; that after several reminders he did on