Wilmer v. Placide

Pattison, J., delivered the opinion of the Court. This is an appeal from an order finally ratifying an auditor’s report and account. It is the third time that this case has been before this Court. The original bill was filed by the appellee against the appellant on the 10th day of November, 1910.

The appellant had instituted proceedings for the foreclosure of a mortgage from the appellee, Susan E. Placido, to Alice L. Wilmer, trustee, dated November 3, 1890, upon property located at .1300 Madison Avenue, Baltimore City, where both the plaintiff and defendant at such time resided, and which was conveyed unto the plaintiff by the defendant and George W. Lindsay, trustees, by deed dated the 16th day of June, 1887. The mortgagee, Alice B. Wilmer, wife of the appellant and sister of the appellee, assigned said mortgage to- the Mercantile Trust and Deposit Company, by which it was thereafter assigned unto the appellant. The prayer of the bill not only ashed that the defendant be restrained from foreclosing said mortgage and that it be annulled and set aside, but it also asked for an accounting of the money alleged in the bill to be in the hands of the defendant belonging to the plaintiff and for which he had not accounted to her; and further asked that the defendant be required to vacate the mortgaged premises. After ihe filing of the bill the defendant on the 8th day of December, .1910, filed for record in the Record Office of Baltimore City, a deed from the plaintiff, Susan E. Placide, to her sister, Alice B. Wilmer, dated July 29th, 1887, by which it was claimed by the defendant that the mortgaged premises aforesaid were conveyed by the plaintiff to the said Alice B. Wilmer; and thereafter he filed his ⁵³⁴ answer to. the plaintiff’s bill denying that she was the owner of said mortgaged property.

The plaintiff being thus informed for the first time, as she alleges, of the existence of the deed aforesaid, filed her second bill asking that the said alleged deed be declared void. The defendant filed his answer thereto and the cases were thereafter consolidated by order of the Court. After hearing' a great volume of testimony, the Court below by its decree annulled and set aside said deed and ordered an accounting, as prayed in the original bill, and the papers were referred to the auditor with directions to him to state an account between the said Susan E. Placide and the said Edwin M. Wilmer “in which there shall he the following and no other charges and allowances: “The said Susan E. Placide shall be charged with said mortgage debt, to wit: “The sum of thirty-nine hundred and fifty-nine dollars and eighty-nine cents, cost of recording, four dollars and twenty-five cents, making a total of thirty-nine hundred and sixty-four dollars and fourteen cents, and she shall not be charged with any interest thereon. “She shall be credited with the two sums ($834.47 and $854.56) arising from the estate of Jennings Placide, deceased, amounting to sixteen hundred and eighty-nine dollars and three cents, with interest on each sum from the date of its receipt by Edwin M. Wilmer. “The auditor shall credit Miss Placide with the sum shown by said books to have been charged against her as board, and shall deduct therefrom any overpayment made by Edwin M. Wilmer if said board had been a proper charge, and in making such credits and debits the auditor shall be confined to the entries in said books. “She shall be credited in such account with interest on each sum so improperly retained by Edwin M. Wilmer as board. ⁵³⁵ “She shall he credited with whatever sum the said Wilmer has received as one-half of the rent of Ho. 1001 E. Pratt Street less all proper allowance to Wilmer for taxes, water rents and repairs for which proper vouchers shall be produced, and with one-half of the rent of one hundred dollars issuing out of Ho. 1901 McCulloh Street and not accounted for by the said Wilmer to the date of the audit. “She shall he credited with interest on each of the said last above named sums. “She shall he credited with any taxes, water rents on Ho. 1300 Madison Avenue not paid by the said Wilmer since August 12, 1897.” It was further adjudged, ordered and decreed that the defendant, Wilmer. was to have twenty days to produce his vouchers and accounts before the auditor, and the plaintiff, Susan E. Placide, was to have ten days to produce her vouchers and examine said account, and that each party might take such testimony before the auditor as might he necessary “with, reference to the above named items only.” The defendant appealed from that portion of the decree setting aside the aforesaid deed from the plaintiff to Alice B. Wilmer and declaring the property therein mentioned— the mortgaged premises — to he the property of Susan E. Placide, and also from that part of the decree ordering an accounting and referring the papers to the auditor with directions as above stated; while the plaintiff appealed from that part of the decree declaring the existence of the aforesaid mortgage and directing the auditor to charge the principal thereof, without interest as aforesaid, to her. These appeals (Wilmer v. Placide, 118 Md. 305 ) resulted in an affirmance of the decree of the Court below-, and Edwin M. Wilmer was directed to pay the costs above and below in both cases, except the clerk’s costs and appearance fee in plaintiff’s appeal, which were to he paid by her. ⁵³⁶ Pursuant to-the said order or decree of the lower Court passed on the 27th of October, 1911, and affirmed, as we have' said,' by this Court, the papers were referred to the auditor -and he, after taking testimony as authorized • and directed by said order, stated an account between the plaintiff and defendant, to the ratification and confirmation of which exceptions were filed by the defendant.

These exceptions were heard and overruled and the auditor’s report and account were finally ratified and confirmed by an order of the Court below passed on the 31st of January, 1912. From that order an appeal was taken to this Court, Wilmer v. Placide, 119 Md. 49 . The aforesaid exceptions numbered twenty-five. Of these we will only mention and refer to those that are involved in the decision of this appeal; they are as follows: ■ First.

To the exclusion of interest on the mortgage debt after the assignment of the same to the defendant. Second. To the exclusion of amounts said to have been paid by the defendant as interest on the mortgage debt before the assignment to him. Tlwd.

To the exclusion of commissions to the defendant' on-moneys collected and disbursed by him for and on behalf of.-.the plaintiff. Fourth. To the failure of the auditor to allow to the defendant certain credits to which he claims to he entitled in his account with the plaintiff for money- of hers pai d to him from the estate of Jennings Placide. . Fifth.

To the charges against the defendant- for taxes and water rents on property known as 1001 E. Pratt Street, and to the allowance of costs to the plaintiff that were paid by the defendant to the auditor, amounting to one hundred and forty-four dollars and eighty cents. , We sustained the ruling of the Court below upon the first, second and third exceptions as we have here numbered them, but reversed the Court in its rulings on the fourth and fifth. The reversal upon the fourth exception was because the ac ⁵³⁷ count as stated allowed to the defendant, out of tlie money paid to him from tlie estate of Jennings Placido, a credit of •only four hundred dollars with interest., when, as we thought, he should have been allowed a credit of six hundred and seventy-eight dollars and five cents, with interest; and the reversal upon the fifth exception was because, in our opinion, the account wrongfully charged the defendant, first, with costs amounting to one hundred and forty-four dollars and eighty cents that had been paid by him to the auditor, and .second, with the sum of fifty-eight dollars and seventy-eight cents for taxes and water rent for the Pratt Street property. The order appealed from was, therefore, affirmed in part and reversed in part, and the case remanded that an order might, he passed in conformity with that opinion. Upon the return of the ease to the Court below an order was accordingly passed and the papers again referred to the auditor and the account restated by him; to the confirmation and ratification of which the appellant again excepted, hut this time the exceptions numbered only seventeen.

They were, however, overruled and the report and account finally ratified and confirmed, and the appellant again appealed to this Court from the