Twichell v. Gross

Thomas, J., delivered the opinion of the Court. On the 2dth of December, 1907, Samuel A. Katz and Morris Klatzky executed to the appellants a mortgage of thirty-three lots in Baltimore City, viz: nineteen lots on Shields alley, ten lots on Carey street, two lots on Smith street, one lot on Fremont avenue and one lot on Vincent ¹²⁹ street, to secure the payment of a loan of $22,318.67, which the mortgagors agreed to pay “in monthly instalments of one hundred and fifty dollars each, with interest on the principal sum at six per cent, per annum, payable monthly; the interest to be reduced proportionately as the principal is reduced.” In addition to the usual covenants for the payment of the principal and interest of the mortgage debt, ground rents and taxes, when duo, and a provision for the sale of the property in case of .a default, the mortgage contained the following agreement: “It is agreed that the said mortgagors may release any one or more of said lots of ground upon the payment of the following sums of money: Any of the lots on Carey Street upon the payment of the sum of $1,000.00 for each lot. Any of the lots on Smith Street upon the payment of the sum of $700.00 for each lot. Any of the lots on Shields Alley upon the payment of the sum of $550.00 for each lot.

The lot on Yincent Street upon the payment of the stun of $700.00. The lot on Premont Street upon the payment of the sum of $1,000.00.” Samuel A. Katz and Rebecca Katz, his wife, on the 26th of Eovember, 1910, executed a second mortgage of their interest in said lots to Abe Gross, to secure the payment of their promissory note to Gross, of even date, for the sum of $2,500, payable one year after date, with interest, which note was shortly thereafter endorsed to Eathan Gross. On the 15th of December, 1910, Samuel A. Katz and Morris Klatzky conveyed said lots to Eathan Gross to secure the payment of a further loan of $1,500, for which they gave their promissory note of that date, payable eighteen months after date, and on the 23rd of August, 1911, said mortgagors assigned all their interest in the lots to Kate Gross, of Pennsylvania. On the 10th of October, 1912, Eathan Gross and Kate Gross filed in the Circuit Court of Baltimore City their bill of complaint in this ease against the appellants, Carlos E. Twichell and Ev.a May Twiehell, in which, after setting out ¹³⁰ the execution of the several mortgages and deed to which we have referred, they allege as follows: “That each and every of the monthly instalments of $150.00 and all interest due to this date on said mortgage debt of $22,318.67 have, as required by the terms of the said mortgage from Samuel A. Katz and Morris Klatzky to the said Carlos E. Twichell and Eva May Twichell, been paid to the said mortgagees, making the aggregate of the payments to them on account of the principal of said mortgage debt $8,550.00; and that all taxes and ground rents on said mortgaged premises have also been paid to the date hereof.

That pursuant to the right conferred upon them by the provisions of said mortgage/’ they, the plaintiffs, on the 28th of September, 1912, tendered to the said mortgagees “the sum of $450, making with the sum of $8,550 heretofore paid as aforesaid, upon the principal of the mortgage debt a total of $9,000, and requested a release from the operation of said mortgage, of the nine lots on the southwest side of Oarey street/’ that at the same time they tendered to said mortgagees a release, to be executed by them, and that they refused to accept said sum of $450 and to execute the release; that they have ever since been ready and willing to pay the said sum of $450, “and do hereby renew their tender thereof to said defendants, and offer to pay the same into this honorable Court.” The prayer, of the bill was for a decree determining the right of the plaintiffs to a release of the nine lots on the southwest side of Oarey street from the lien of the mortgage from Samuel A. Katz and Morris Klatzky to the defendants, Carlos E. Twichell and Eva May Twichell; requiring the defendants, upon payment to them of the $450, or upon payment of the same into Court, to execute the release to the plaintiff Kate Gross, and for further relief. The defendants demurred to the bill, and this appeal is from the decree of the Court below overruling their demurrer. The theory upon which the bill was filed, and the contention of the appellees is stated in their brief as follows: “The appellees claim — that trader the agreement for partial re ¹³¹ leases contained in the mortgage, they are entitled to a release of such of the thirty-three lots as they may select, whenever the monthly payments of one hundred and fifty dollars on account of the principal of the mortgage debt amount to the sum or sums for which these respective lots are by the agreement releasable.” They urge in support of that view that a different construction would be unreasonable and unjust to the mortgagors, and, to quote again from their brief, “would lead to the extraordinary condition that if the sum total of the $150.00 monthly payments should amount to, for instance, $13,000.00 or more, the mortgagors could not obtain a release of the nine Carey street lots without paying the entire balance of the principal.” The mortgage does