55 Md. 518 | Md. | 1881
delivered the opinion of the Court.
On the 15th of December, in the year 1874, Cornelia L. Henderson and others conveyed to John Faulstich two leasehold lots in Baltimore City, which are particularly described in their deed, and on the same day Faulstich executed a mortgage of the same lots to Cornelia L. Henderson to secure the payment of two thousand dollars. On the 28th of December, 1874, Faulstich sub-leased a part of these lots, which is described in the lease to Burger, it being part of the second lot conveyed by the Hendersons to Faulstich. On the 14th of September, 1876, Faulstich assigned all his interest in these lots to G-ebhard, subject to the mortgagé to Cornelia L. Henderson, as also to a mortgage which he had executed to the Broadway National Building Association, each dated the 15th December, 1874. On the 24th April, 1878, G-ebhard mortgaged one of the lots designated as lot No. 1, to Max and Levi Greif, to secure the payment of fifteen hundred dollars. On the 5th November, 1878, Gebhard assigned all his interest in the lots to Bernard Fjinke, subject to the mortgage to Cornelia L. Henderson. A decree was afterwards obtained for the sale of the lot mortgaged by Gebhard to Max and
On the 10th February, 1879, Cornelia L. Henderson, assigned her mortgage on both lots and the mortgage note to Alexander G. Dolfield, and on the following day, 11th February, 1879, Bernard Funke conveyed one of the lots, assigned to him-by Gebliard, to Frederick Burger.
On the 7th March, 1879, Dolfield obtained a decree for the sale of all the mortgaged property described in the mortgage to Henderson, and Frederick C. Cook was appointed trustee to make the sale. On the 15th day of March, Max Greif, the appellee in this case, filed his bill against Dolfield, Burger and Cook, the trustee, in which, after setting forth the various conveyances of, and liens on the lots as hereinbefore stated, alleged that he had offered to pay the whole debt, secured by the Henderson mortgage, provided Cook, the trustee, would assign said mortgage to him, but that said offer had been refused by Cook, the trustee, and Dolfield. It further charged that Dolfield and Burger had combined and confederated for the purpose of relieving Burger’s portion of said lots from the effect of the mortgage and threatened to first sell the lot of Max Greif, which, he alleged, was of greater value than the amount of the whole mortgage debt, interests and costs. It further charged that the complainant was entitled to pay off the whole mortgage debt, interest and costs, and have the mortgage and decree assigned to him so as to protect himself and his property from sale, and so that he could have the other lots sold ‘'fin the order in which, according to the rules of equity, said property should be sold for the satisfaction of said mortgage claim, interests and costs,” and it is claimed that lot Ho. 2, described in the bill as Ho. 4, shall be first sold, and secondly, the reversion-of the sub-lease in that portion of lot
The rule is too well settled to need the citation of authorities in its support, that where one person has a lien upon two funds, or two pieces of property, and another holds a lien upon but one of those funds or pieces of property, that the first lienor will he compelled, in equity, to seek satisfaction of his claim from that fund or piece of
There is another rule, which, we think, after a careful examination of the authorities, may be considered as settled — and that is, that where a party gives a mortgage upon his property, and afterwards conveys his equity of redemption to different parties at different times, the property so conveyed is liable for the mortgage debt in the inverse order of its alienation; or, in other words, that the property last conveyed must be exhausted in payment of the mortgage debt before the mortgagee can resort to that which was-conveyed before it in point of time. While the decisions in some few of the States hold that the mortgaged property is equally bound in the hands of all parties to whom it may have been conveyed. The great weight of authority is in support of the rule we have stated. The decree of the Court below is based upon the latter rule, and the question is, whether the facts in the case now before us bring it within that rule.
It will be borne in mind that, after the deed of assignment of both the lots by Eaulstich to Gfebhard, that the latter mortgaged lot No. 1 to Max and Levi Greif on the 24th April, 1818, subject ’to the Henderson mortgage in common with lot No. 2. This mortgage was to secure the payment of the sum of fifteen hundred dollars. Gebkard then assigned all his interest in both lots to Bernard Eunke after proceedings had been commenced by Max and Levi Greif to foreclose their mortgage. The appellee, Max Greif, became the purchaser of lot No. 1 at the trus
There was error, therefore, in the decree of the Circuit Court in restraining the sale of lot No. 1 by Cook, the trustee, and in directing a sale as prescribed by said decree.
It is alleged in the bill, and has been contended in argument, that there was a combination and confederation by and between Cook, trustee, and the other, defendants, to fraudulently release Burger’s property from the operation of the mortgage, and to have the appellee’s lot sold first therefor. We think the proof is not sufficient to sustain the charge; but even if it was, and it clearly appeared that Cook, trustee, and Dolfield, were endeavoring to sell the appellee’s lot first, they were doing, as we have shown, what they had a right to do; nor can we see in what respect the appellee could have been injured thereby.
It was further contended that the appellee had the right to pay the debt, interest and costs, and thereupon to have the mortgage and decree assigned to him. We do not agree to this view. The appellee could have paid the amount due with the costs of the case, and such payment would have entitled him to have contribution from the other parties who had bought parts of the mortgaged premises.
Eor the reasons above assigned the decree appealed from will be reversed and the cause remanded for further proceedings, in accordance with the views expressed in this opinion.
Decree reversed, and cause remanded. /