42 Md. 51 | Md. | 1875
delivered the opinion of the Court.
The object of the original bill filed in this case, is to procure a proper distribution of the fund, derived from the sale of certain furniture between the appellee, who is complainant below, and the appellant, who is defendant. The distribution involves the construction of a mortgage made to the appellee on the 13th of October, 1810, by Maddox and wife, conveying to him a lot and house, and all the furniture therein. Under a reservation in this mortgage, the appellant claimed he was entitled to a preferred lien upon the whole of this furniture, for a debt due him for such part of the furniture as he had sold and delivered to the mortgagors. The Judge below indicating that his construction of the mortgage was in accordance with this claim, the appellee filed, in the same case, a bill to reform the mortgage, so that the lien of the appellee might be restricted alone to the furniture which he had delivered, upon the ground that such was in fact the pur
The counsel for the appellant have addressed the much larger portion of their argument to the sufficiency of proof to authorize a decree reforming the mortgage, insisting that it is the only question presented by the record. In this we do not concur. The decree may be incorrect for either of two reasons. The one may be, that there is no occasion, arising upon a construction of the mortgage, for reforming it in the respect asked for in the hill of complaint ; or it may he erroneous, because, as contended, the proof is not sufficient to establish the right of the party complainant to have it reformed. As Courts of Equity will not pass decrees needlessly, the one question is as vital to the correctness of the decree as the other, and is of consequence equally open npon this appeal. Indeed the construction of the mortgage must he first ascertained and decided, before the Court can possibly say, whether it ought to be reformed upon the proof, and if so, in what respect it is to he reformed.
The particular clause of the mortgage in controversy is the one, in which the property conveyed is mentioned. This property is stated to be a certain lot and buildings thereon with the appurtenances, “and also all the household and kitchen furniture in the dwelling on the said described lot, and now occupied by the said Joseph H. Maddox and wife, subject however to the claim of James Fryer thereupon, for the unpaid purchase money for the portion of said furniture now being delivered to said Maddox and wife upon said premises.” James Fryer is not a party to this mortgage, and it is clear that it does not confer upon him any rights — as a mortgagee under it. Its only effect is to render the property conveyed subject to
As this proof is in the record, the question arises what is the claim or lien of Fryer ? In the conclusion reached by tire able Judge below upon this point, we fully concur. We have found nowhere any proof that a lien upon all the furniture conveyed was ever given or promised to the appellant by Maddox. The weight of the testimony establishes that the only lien he had, for his unpaid purchase money, was upon the furniture he had supplied, and which was in the course of being delivered at the time of the execution of the mortgage.
The decree of the Court below will therefore he reversed, in so far as it directs the mortgage, filed as “Exhibit A,” with the hill of complaint, to he reformed; and it will he affirmed in so far as it overrules the exceptions to auditor's account A, and ratifies and confirms the same.
Decree reversed in part, and affirmed in pari.