71 Md. 131 | Md. | 1889
delivered the opinion of the Court.
In this case the mortgage and judgment are both liens on the property of the debtor, the one a general and the other a specific lien, and the payments, it seems to us, ought to be applied, therefore, to the oldest lien due and
The fact that the wife united with the husband in the mortgage cannot create an equity in her favor as against the rights of the creditor. She can stand in no better position than a surety, and a surety has no right to control for his benefit an appropriation of payments, when such appropriation is to be made by the Court. On the contrary, we take the rule to be, where one has two demands on the same debtor, the one being a sole obligation, and the other an obligation with a surety, and no appropriation has been made of -payments by either the debtor or creditor, the law will apply the payments to the sole obligation, in preference to the secured debt. Chester vs. Wheelwright, 15 Conn., 562; Pierce, et al. vs. Sweet, 33 Penn., 151.
Some of the payments, it was said, were made with the proceeds of sale from tobacco grown and wood cut on property belonging to the wife. But this cannot affect the question. The tobacco was grown and the wood was cut by the husband with the consent of .the wife, and the proceeds of sale were used and applied by him with her consent, and without any knowledge on the part of the appellees as to the sources from which the money was derived. No one can question the right of the husband under such circumstances to apjfiy the proceeds as he saw fit; and if no appropriation was made by him, then the appellees had the right, and if they failed to exercise this right, then the Court will apply the payments thus made to the oldest lien due.
In dealing with this, case, we have treated the mortgage as one to Lanahan & Son, for although it was taken in the name of Samuel J. Lanahan, a member of the firm, it is admitted that it was given to secure an indebt
The payments, it seems to us, were properly applied by the Court, and the decree will he affirmed.
Decree affirmed.