Walter v. Foutz

Grason, J., delivered the opinion of the Court. From the record in this case it appears that in August, 1871, there was an arrangement made by which the ap ¹⁵¹ pellants were to obtain a loan, for two years, from tbe appellee, of tbe sum of thirty-seven hundred dollars. A mortgage for that amount was accordingly executed and delivered by the appellants to the appellee, and at the same time there were also signed and delivered to him four notes for the interest on thirty-seven hundred dollars, payable in six, twelve, eighteen and twenty-four months. The appellants, however, received from the appellee, but thirty-four hundred and seventy-eight dollars, two hundred and twenty-two dollars having been retained by the appellee as a bonus.

In August, 1813, the time for the payment of the loan was extended, other interest notes being given, and the further sum of two hundred and sixty-two dollars being demanded by the appellee and paid by the appellants. In August, 1875, the loan was again extended for two years more, interest notes were - given, and. the sum of one hundred and thirty-one dollars was demanded by the appellee and paid by the appellants. Upon the expiration of the time for the re-payment of the loan, default was made and the mortgaged premises were sold. The auditor stated an account which was finally ratified, but upon the petition of the appellants the Court below ordered other accounts to be stated, upon the evidence then in the case and thereafter to be adduced, under the instructions of the solicitors of the respective parties.

The first account which had been ratified was filed in Court by the auditor by direction of the solicitor of the appellee, and another account was stated under the instructions of the solicitor of the appellants, by which certain payments made to the appellee, and alleged to he usurious, with interest thereon from their times of payment, were allowed as credits upon the mortgage. To this account the appellee filed exceptions which were sustained, the account rejected, and the account stated under the appellee’s instructions was finally ratified, and from the order thus disposing of the accounts this appeal was taken. ¹⁵² It was 'contended by tbe solicitor of tbe appellee that as no exception was taken in the Circuit Court of Baltimore City, to the account which was ratified, this appeal is not properly in this Court, and referred, in support of. this proposition, to the case of The Citizens’ Security and Land Company of Baltimore vs. Wilson, 50 Md., 90 . In that case, however, there was but one account stated by the auditor, and to that no exceptions were filed. But the law is different where accounts are stated to represent the views and claims of the parties to the cause, under their instructions, and no exceptions are then required by either party, and objections may be taken to the accounts.

This was expressly decided by our predecessors in the case of Dennis and Rush vs. Dennis’ Executors, 15 Md., 150 . The accounts filed in this case were stated under an order of Court, which directed the auditor to state accounts from the evidence then in the cause and thereafter to be adduced before him, and under the instructions of the solicitors of the respective parties, and they were so stated, and are, therefore, under the decision above referred to, properly before this Court for review. The exceptions filed to the account stated under the instructions of the solicitor of the appellants, relies upon the Statute of Limitations, to defeat their claim to have the payments, alleged to be usurious, credited against tbe mortgage debt. If such payments