Wilmer v. Light Street Savings & Building Ass'n

Urner, J., delivered the opinion of the Court. A judgment for $311.40 was obtained by the appellant, in ■his individual capacity, against J. Frank Griffin on July 28, 3 915. In an equity suit instituted by the appellant on'August 6, 1915, it was decreed on September 21, 1917, that leasehold estates, of which the Griffin Real Estate and Construction Company was the ostensible owner in two improved lots of ground, one oh Warner Street 'and the other on Columbia Avenue, in the City of Baltimore, were in reality owned equally by Griffin, the judgment debtor, and Elijah J. Bond,, as tenants in common, and that the judgment was a lien on Griffin’s undivided half interest in the two properties. Under execution on the judgment, issued on June 26, 1918, the interest of Griffin in the properties was purchased by the appellant, who received the sheriff’s deed therefor on January 2, 1919.

At the time of the rendition of the judgment the Light Street Savings and Building Association of Baltimore City held a mortgage, for $600’ on the Warner Street property, executed by a predecessor in title of the Griffin Real Estate and Construction Company, and 'another for the same amount on the Columbia Avenue property executed in the name of that company as mortgager. Default had occurred with respect to both mortgages prior to the date of the judgment. While the equity suit to which we have referred was pending, and with actual knowledge of that fact, the Light Street Savings and Building Association, ill lieu of the exercise of its right of foreclosure, accepted from the Griffin Real Estate and Con-. struetion Company a deed of the equity of redemption in the-mortgaged premises. This conveyance was made on January ²⁷⁵ 18, 1917.

Subsequently, in August, 1918, the mortgagee conveyed the Warner Street property to Isaac Merowitz and the Columbia Avenue property to the Ridge Realty Company. In the deed from the mortgagor to the mortgagee, and in the conveyances from the latter to the grantees just mentioned, the considerations expressed, were “the sum of five dollars and other good and valuable considerations.” It may be inferred from the record that the mortgagee made no payment to the mortgagor for the conveyance of the equity of redemption in the two mortgaged leasehold estates, and that they were treated, for the purposes of that transaction, as being worth no more than the amount of the mortgage liens, of approximately $1,200 to which they were subject. But a higher value is. indicated by the fact that a. mortgage for $2,200 given by Isaac Merowitz to the Savings .and Loan Association on the Warner Street property, contemporaneously with the deed by which it was conveyed to him by the Light Street Savings and Building Association, recited that the proceeds of the loan secured by the mortgage were to. be applied to the purchase price of the property. In Lnlv, 1918, the appellant acquired by deed the half interest of his co-tenant, Elijah J. Biond, in the properties covered by the Light Street Savings and Building Association’s mortgages.

After receiving in January, 1919, the sheriff’s deed for the interest of Griffin, the 'judgment debtor, a petition was filed by the appellant during the siame month for a writ of possession to he directed against Isaac Merowitz and the Ridge Realty Company, as the grantees and actual occupants of the respective properties, and against the Savings and Loan Association as mortgagee of the one located on Warner Street. The application for the writ was contested, but was eventually granted by an order passed December 19. 1919. This order was reversed on appeal because of the superior right of possession which the Light Street Savings and Building Association had exercised, by reason of the defaults under its mortgages and by virtue of the deed to it from the ²⁷⁶ mortgagor, and which right it had transferred to its grantees. Griffin v. Wilmer, 136 Md. 623 .

The decision on that appeal was rendered on June 11, 1920, ¡and in September following the present appellant filed in the Circuit Court No. 2 of B:altimore City, a bill in equity against the Light ¡Street Savings and Building Association, Isaac Merowitz, the Ridge Realty Company, and the Savings and Loan Association, for an accounting as to the amounts due on the mortgages antedating the judgment and deeds under which the appellant’s interests are claimed, and for the redemption of the property in litigation upon the payment, which he offered to make, of the sums ascertained to be owing on those antecedent liens. After a demurrer to the hill of complaint had been sustained and the hill had been amended, the answers of the defendant® were filed in the latter part of January, 1921. Upon petition of the defendants, on 'October 31, 1921, the ease Was removed to the Circuit Court of Baltimore City, where a decree was passed on November 19, 1921, dismissing the bill of complaint. This decree was reversed on appeal because there is no right of removal in equity eases, and the court to which the proceeding had been removed was, therefore, without jurisdiction to' render the decision from which the appeal was entered.

Wilmer v. Light Street Savings and Building Association, 141 Md. 238 . The case was remanded to the Circuit Court No. 2 of Baltimore City. It was there brought to a final hearing which resulted in a decree dismissing the bill, and that decree is the occasion of the present appeal. If the Light Street Savings, and Building Association had foreclosed its mortgages instead of taking a deed of the ■equity of redemption from the mortgagor, and if a fund more than sufficient to satisfy the mortgagee’s claims had been realized from a foreclosure sale, the appellant would clearly have had an interest in the question as to the proper disposition of the surplus.

In that event his right to an accounting by the mortgagee 'as to the excess proceeds of sale would ²⁷⁷ probably not have been disputed. The question in which, the appellant is practically and legitimately concerned is whether the properties had a value above the requirements,' of the mortgage debts when the conveyance was made to the mortgagee in lieu of foreclosure. If the equity of redemption in fact had an available value, 'the appellant had a, material interest in its disposition of which he could not be deprived by the conveyance from the mortgagor to the mortgagee. The sale of the Warner Street property by the mortgagee to> a purchaser who appears to have borrowed $2,200 to be used in the payment of the purchase price tends to show that tire property was, worth much more than the amount of the $600 mortgage debt and interest when the mortgagee took possession, unless the latter afterwards increased its value by improvements.

But it is contended by the mortgagee that the question as to the amount derived by it from the mortgaged properties is one in which the appellant has, no concern. The theory of this contention is that the appellant has been guilty of laches, which should prevent the granting of any of the relief sought in the pending suit. The period of time which has elapsed since the rendition of the judgment in which the interest asserted by the appellant in part originated has been almost continuously occupied by a series of active and strongly resisted efforts to enforce liis claims against the property involved in this litigation. There was an interval of nine months between two of the successive proceedings, but no change in the interests of the parties appears to have t,alten place during that period.

The responsibility for considerable delays in the course of the proceedings is shown by the docket entries to, rest upon the appellant’s adversaries. According to> his, testimony much of the delay in the prosecution of the first equity srtit was due to the fact that he wias endeavoring to effect a, settlement out of court. It does not seem to us that the rule as, to Inches should be applied because of such delays as those which occurred under the conditions shown