Talbott v. Laurel Building Ass'n

Thomas, J., delivered the opinion of the Court. On the 19th of October, 1910, Henry M. Talbott and others executed a mortgage of certain parcels of land in Montgomery County, Maryland, to the Laurel Building Association of Prince George’s County, to secure the payment. ⁵⁶⁶ in the manner therein provided, of the sum of $2,500, advanced to him on certain shares of stock of said association, .and the interest thereon, etc. The mortgage provided that in case Henry M. Talbott should fail, “for the space of six months,” to make the payments therein required, or to perform the covenants, etc., therein, the whole mortgage debt •should become due and demandable, and that the mortgagee, or its assigns, were authorized to sell the property thereby ■conveyed. William • Stanley, Esq., to whom the mortgage was assigned for foreclosure, instituted foreclosure proceedings, in the Circuit Court for Montgomery County, and advertised the property for public sale on August 19th, 1921, and thereupon Henry M. Talbott filed his bill of complaint in said court against the mortgagee, its assignee, and the publisher of the notice of the sale, to enjoin the sale and the further publication of the notice thereof until the further order of the court. The bill, after alleging the execution of the mortgage, the ■assignment thereof for the purpose of foreclosure, the institution of the foreclosure proceedings, and the advertisement of the proposed sale of the property, then contained the following averments: “5th.

That the complainant has made large and frequent payments on account of the principal and interest secured by said mortgage, which said payments the defendant, the said Laurel Building Association, refused to give credit for, although it has duly received the same. That the complainant has paid to the said defendant the sum of séventeen hundred and twenty-five dollars and ninety-nine cents ($1,~ 725.99) on account of the principal and interest of said mortgage debt, thereby leaving due and owing thereon the approximate sum of eleven hundred dollars, which complainant has tendered to said defendant, and is ready, able and willing to pay pro— ⁵⁶⁷ The court below passed an order requiring the defendants to show cause on or before the 1st day of August why the injunction should not be granted, and on the 30th of July the mortgagee filed its answer denying that it had refused to give the plaintiff credit for the payments made by him, and also denying that the plaintiff had ever tendered to it, or its agent or attorney, any sum of money other than the amount “shown credited on the statement” filed with its answer, and alleging that it had furnished the plaintiff “with numerous statements from time to time, showing the exact amount of interest and principal due under the” mortgage; that the plaintiff had made payments on account of the mortgage debt with full knowledge of how the payments so made were credited, and had repeatedly promised and failed to pay the-amounts due. The account filed with the answer purports to give an itemized statement of the amounts due under the mortgage and the payments made by the plaintiff, from the date of the mortgage to July 19th, 1921, and shows a balance still due the mortgagee greatly in excess of the amount admitted to 'be due by the plaintiff in his bill. On the bill and answer, the court below, on the 2nd of August, 1921, ordered an injunction to issue as prayed, upon the filing by the plaintiff of a bond in the penalty of $1,500, but on the (5th of August the defendants moved the court “to consider the propriety of the issuance of said injunction,” and after a hearing of the motion, the court below, on the 13 th of August, 1921, passed the order from which this appeal was taken by the plaintiff, requiring the plaintiff to pay into court, on or before the 15th of September, 1921, to be paid to the defendant, the sum of $1,100, admitted