Sumwalt v. Tucker

Grason, J., delivered the opinion of the Court. The facts of this case, as found in the record, are that Wilkinson obtained a decree in the Circuit Court for St. Mary’s county, for the sale of certain real estate which had been mortgaged to him by Tucker, and that Downs was appointed trustee, who sold the property, and the sale was reported to, and ratified by the Court; and the auditor’s account, after allowing expenses, &c., distributed the entire balance of the proceeds of sale to the mortgagee, that sum being insufficient to pay the whole of the mortgage debt, and still leaving a balance due the mortgagee. The appellant having obtained a judgment against the appellees Tucker and Wilkinson, after the dates of the two mortgages to Wilkinson, obtained an execution upon it after the decree for the sale of the property had been passed, and it was levied upon the land so decreed to be sold, but the sheriff forbore selling under the execution, in consideration of a promise made by ⁹¹ the appellees that they would pay him the amount of the judgment at the next succeeding term of the Court. The money not having been so paid, a venditioni exponas was issued, to which the sheriff made return that the property had been sold at trustee’s sale.

The appellant then filed his petition in the'equity case of Wilkinson vs. Tucker, setting forth the above facts verified by the affidavit of the sheriff, in which it was also shown that the sheriff could find no property of the appellees, besides that upon which he had made the levy, out of which he could make the money. The appellant at the same time also filed exceptions to the auditor’s report and account. The Court below dismissed the petition and overruled the exceptions to the auditor’s account, and from that order this appeal is taken; and the question to be determined is, whether a judgment creditor can come into a case pending in equity and have a fund, which has been audited to the mortgagee, who is the defendant in the judgment, applied in satisfaction of his judgment. We have no difficulty in deciding this question.

Although the lien of the judgment attached upon the equity of redemption of the mortgagor and any fund remaining, after the payment of the mortgagee’s debt, might have been applied to the payment of the judgment