Carter v. Van Bokkelen, 73 Md. 175

Carter v. Van Bokkelen

73 Md. 175 | Md. | 1890

Bryan, J.,

delivered the opinion of the Court.

The appellee filed a hill in equity against the appellants for the specific performance of a contract for the *177purchase of a tract of land in Baltimore County. The particulars of.the title, as disclosed hy the record, are as follows: Libertus Yan Bokkelen in May, 1861, conveyed the land in question, and other land to Herman Yon Kapff upon certain trusts declared as follows: “In trust and confidence, nevertheless, and to, for and upon the uses and to the ends, intents and purposes, and with, under and subject to the powers hereinafter mentioned, expressed and declared of and concerning the same, that is to say, in trust to suffer and permit Mrs. Amelia D’Arcy Yan Bokkelen, the wife of the said Libertus Yan Bokkelen, for and during the term of her natural life, to hold and enjoy all said described estate and property, to collect and receive the rents, issues and income thereof, and the same to apply to her own sole and separate use without being subject to the power, disposal or control of her present or any future husband, and without being liable or bound for or by his or their debts, contracts or engagements, with power to the said Amelia with the assent of the said Libertus Yan Bokkelen, if then alive, to sell, dispose of, convey and assign absolutely or otherwise, the whole or any parts or part of the estate and property above described or mentioned, or to devise or bequeath the same to such person or persons as she may think proper, without the assent or concurrence of the said trustee herein named, and from and after the death of the said Amelia, in case no sale or other disposition thereof shall have been made by her under the powers hereinbefore expressed, and in so far as no such disposition thereof shall have been made by her, then in trust for all the children and descendants hy the said Libertus Yan Bokkelen, which the said Amelia may have living at the time of her death, to takq per stirpes and not per capita, and for their heirs, legal representatives and assigns, forever;” other trusts were declared to take effect in case the said Amelia should *178die without leaving children or descendants hy the said Lihertus living at the time of her death. But as she is dead, and as she left several children hy her said husband living at the time of her death, it is not necessary to notice these trusts. No objection is made to Mr. Van Bokkelen’s title at the time of this deed. In December, 1868, Von Kapff, the trustee, and Van Bokkelen and wife conveyed this land to Thomas J. Wilson by a 'deed stated to he made in pursuance of the power reserved to Mrs. Van Bokkelen, and reciting that “ with and under said power various parcels of said land have been sold or disposed of, leaving a portion of the said land still held under said deed of trust; and the said Amelia, with the assent of the said Lihertus, for the purpose of promoting her best interests, and the interest of her family, and all the parties being free from ariy pecuniary or other embarrassment, has determined to dispose of and convey the balance of said trust property, and thereby fully to execute, fulfil, annul and determine for the future the trusts under the said deed.” The habendum was to Wilson free, clear and discharged of all trusts, and for his own use and behoof. On the same.day Wilson conveyed the land to Van Bokkelen. After the execution of these deeds Mrs. Van Bokkelen died, leaving several children hy her said husband, who are still living. Mr. Van Bokkelen married the appellee after the •death of his first wife, and in the latter part of eighteen hundred and eighty-nine, he died leaving a last will and testament. By this will he left all of his property, real and personal, to his wife for life, and after her death “to his children or grandchildren, or the heirs of his children, if any be dead;” and he appointed his wife executrix, and gave her power to “sell, dispose of, or reinvest the property as she might deem best for all interests concerned.” The will was proved in New York, where the testator resided at the time of his death; hut *179■a duly authenticated copy of it was recorded in the office of the Register of Wills of Baltimore County. The appellee duly obtained letters testamentary from the. Orphans’ Court of the same county, and sold the land to the appellants. This sale was reported to the Orphans’ Court, and on the twelfth day of August last duly ratified.

There is no lien of any kind on the land, except a mortgage binding a larger tract, in which this is included, executed by Mr. Yan Bokkelen in 1881 to JohnG-. Rogers to secure a promissory note for ten thousand dollars, payable five years after date. In his life-time, the mortgagor paid five thousand dollars on account of the mortgage debt, and the mortgagee, by assignment duly recorded, assigned the balance of the debt to Anthony M. Johnson, trustee; the instrument not designating in any manner the nature of the trust; but stating irfive thousand dollars having been paid on the within mortgage, I hereby assign the balance, to wit, five thousand dollars, to Anthony M. Johnson, trustee. ’ ’ The ajjpellee tendered to the purchasers a full and final release of the mortgage duly executed by Anthony M. Johnson, trustee, and offered to surrender to them the mortgage note duly cancelled.

The will of the testator certainly conferred on the executrix power to sell this land. The sale, however, would not be valid unless ratified and confirmed by the Orphans’ Court. Code, Art. 93, section 282. This legislation was intended to check and limit the power which an executor had at the common law, by requiring him to report his contracts of sale to the Orphans’ Court and to obtain its approval. When ratified and confirmed, as required by the statute, a sale was valid; the Orphans’ Court approved the contract, but had no power to enforce its execution. The parties might bring before other tribunals such matters as would entitle them to its per*180formance or rescission. In this respect, a sale ratified hy the Orphans’ Court stands on the same footing, as an ordinary contract of sale made between persons competent to contract. The deed of trust is exceedingly distinct and specific in granting to Mrs. Yan Bokkelen the power to dispose of the land with the assent of her husband. It would be difficult to devise language more clear and comprehensive. And the deed to Wilson recited the power, and was executed in strict conformity to its terms; while the deed from Wilson to Yan Bokkelen was simply a conveyance of the title to him. These deeds were such as the piarties had a right to make, and they in no manner infringed the rights of other persons. Yan Bokkelen being the owner of the land, of his own motion and in the exercise of his right over his own property, chose to convey it to a trustee upon such trusts as he saw fit to declare. In strict pursuance of these trusts, the land was conveyed to Wilson, and by Wilson back to him. We are unable to see any objection to this title. We are informed by the record, that the mortgage is the only encumbrance on the property. This is vested in Anthony M. Johnson, trustee; the nature and character of the trust are not disclosed; nor the powers and duties of the trustee. • But ex necessitate rei, a trustee who holds a mortgage debt must he entitled to receive payment after the debt is due; and the mortgagor must have a right to pay it and stop the running of interest. The payment of the debt, of itself, and without any other circumstance, extinguishes the rights of the mortgagee. The mortgage is, in equity, only a security for the debt, and cannot survive after it is paid. The release hy the trustee of the mortgage, after he has received payment, does not convey away any of the rights of the cestui que trusts; they have none whatever against the mortgagor after the debt has been paid. The release by the trustee conveys the legal title, *181which he has no longer any right to hold, and furnishes to the mortgagor the evidence of payment, in such reasonable form as he may justly demand. When the overdue promissory note for the mortgage debt is paid to the' holder, and cancelled and surrendered by him, in a case free from fraud, it is impossible that it should have any further vitality.

(Decided 20th November, 1890.)

The Circuit Court decreed that upon the surrender of the note duly cancelled, and the recording of a release of the mortgage executed by Johnson, trustee, and the delivery of a good and sufficient deed from the plaintiff, the defendants should pay the purchase money. It is, of course, necessarily understood that the .amount due on the note is to be paid to the trustee upon its cancellation, and upon the execution of the release.

We affirm the decree below with costs.

Decree affirmed, ivith costs.