Stieff v. Millikin

Bond, C. J., delivered the opinion of the Court. The appeal is on behalf of the children of a decedent, defendants below, from a decree requiring payment, from the personal estate of their father, of a debt secured by a mortgage on real estate held by him and his wife as tenants by the entireties. For the appellants it is contended that the real estate, now the property of the surviving wife solely, should be relieved of payment of only one-half of the debt, because it was the wife’s debt as well as the husband’s. The facts are set out in a special case stated.

Code, art. 16, sec. 221 et seq. The property was purchased after the marriage, in 1927, by means of $22,000 borrowed by the husband, but not secured by mortgage or by any obligation of the wife, and the conveyance was, as stated, taken in the names of both husband and wife as tenants by the entireties. In December, 1928, the loan for $22,000 was transferred to another lender, and this time secured by a mortgage of the property, the mortgage notes and the mortgage itself having been duly executed by the wife jointly with the husband. The husband paid from his own funds the cost of the mortgage transaction, and paid the interest on the debt until the time of his death in 1930.

He had intended to pay off the loan and release the mortgage before his death, but failed to do so because of unwillingness to make a bonus payment required to obtain a release of the mortgage before maturity. The decedent left a will, executed in 1929, and in it included a devise to the wife of the property and its contents, without reference to the mortgage charge, but the devise was ineffectual to pass any estate, of course, because the wife surviving became sole owner of the whole. There was a residuary personal estate sufficient to pay the debts, including that represented by the mortgage notes. The widow, now remarried, invokes, first, the principle that, when property of one is mortgaged to secure the debt ²⁴⁷ of the other, the security is as between the parties under only a secondary obligation for payment, and the personal estate of the debtor must first be looked to.

Cunningham v. Cunningham, 158 Md. 372 , 148 A. 444 ; Nihiser v. Nihiser, 127 Md. 451 , 96 A. 611 . On behalf of the children it is replied that in this instance the debt was the debt of both the husband and the wife, and the property securing' it was the property of both. A further contention on behalf of the widow is based upon the facts of the husband’s abandoned plan to pay the loan himself and release the mortgage, and his endeavor to devise the property to his widow. In these plans or endeavors, it is urged, he