28 Md. 217 | Md. | 1868
delivered the opinion, of this Court.
On the 26th October, 1850, Lyne Shackelford executed a mortgage to Gwyn, Reid & Taylor, to secure the payment of his note to them for $2,364.37. On the 6th May, 1853, they obtained a decree, on the equity side of the Circuit Court for Charles county, for the' sale of the mortgaged premises for the sum of $1,583.77, the balance then due upon the mortgage. Subsequently to the date of the decree, Thompson, Stewart and Mathews endorsed a note for Shackleford to Walter Mitchell for the sum of $1,750, and with the money thus raised, Shackelford’s indebtedness to Gwyn, Reid & Taylor was paid, and the mortgage and decree were assigned to Thompson, Stewart and Mathews, for the purpose of securing and indemnifying them as such endorsers; and on the 13th December, 1853,' Shackelford executed a mortgage to them of the same premises, for the purpose of fully securing and indemnifying them against their liability as said indors•ers; in which mortgage the assignment of the previous mortgage and decree to them for the same purpose is recited. At the February Term, 1853, of the Circuit Court for Charles couniy, the appellees obtained a judgment against Lyne Shackelford for the sum of $396.59. In March, 1854, Shackelford died intestate, and on the 26th June, following, William P. Mills filed a creditors’ bill against his administrator and heirs-at-law, for the sale of his real estate for the payment of his debts, on the ground that his personal estate was insufficient for that purpose. Thompson, Stewart and Mathews not having been made parties to the original bill, Mills filed an amended bill, asking that they might be made parties aiid that their interest in the said real estate might be decreed to be sold. They filed their answer admitting that they were the holders of the mortgage of the 13th December, 1853, and alleging that the mortgage and decree of Gwyn, Reid & Taylor had also been assigned to them. The appellees were not made parties to these proceedings. A decree was passed for the sale of the said real estate, and one
It has also been argued that the payment to Gwyn, Beid Taylor, was a satisfaction and extinguishment of their mortgage and decree, and that the judgment of the appellees thereby became the prior lien upon Shackelford’s land. It is true, as a general rule, that a payment of the money by one, whose duty it is to pay, extinguishes the mortgage; but there are exceptions even to this rule. Whether a payment will be considered a satisfaction and extinguishment or not, depends upon the interest and rights of third parties, and the intention of the parties to the transaction at the time of payment. 1 Hilliard on Mortgages, 535; Walker vs. Stone, et al., 20 Md. Rep., 198. In this case there was an express assignment of the mortgage and decree, and, from all the facts contained in the record, it was clearly the intention of all the parties to the transaction, that the mortgage and decree should not be extinguished, but should be kept alive and assigned, as they actually were, to Thompson, Stewart and Matthews.— Erom these views it follows that there was error in granting the appellees’ prayer as well as in rejecting the prayer of the appellant; and, as it is finally settled that the appellees’ judgment is not a lien upon the land in the appellant’s possession, the judgment of the Court below must be reversed.
Judgment reversed.