52 Md. 378 | Md. | 1879
delivered the opinion of the Court.
This cause comes up on the appeal of Mary J. Johnson, from the decision of the Circuit Court for Talbot County,
Some of the exceptions in the record do not appear to have been relied on at the hearing below, and certainly have not been pressed in this Court, so that our attention will he confined to those exceptions which have been presented to and relied on in this Court. Properly considered they may be resolved into two exceptions, which we will examine. First, it is contended that the decree did not authorize a sale of more than enough land to pay the complainant’s mortgage claim and costs ; that the land was. divisible into parts, and the trustee should have divided it, and sold in parcels; and that the appellant’s interests, as the grantee of the laud, have been prejudiced by the trustee’s neglect to so divide and sell it.
This exception is based on the language of the decree, and on the decision of this Court in the case of Boteler and Belt, vs. Brookes, 7 Gill & Johnson, 143. The decree provides as follows, “that unless the defendants shall on or before the 23rd day of February next, pay to the complainant, or bring into this Court to be paid, the sum of two thousand and two hundred dollars, with interest thereon from the twenty-sixth day of June, 1875, together with the costs of suit, to be taxed by the Clerk of this Court, the mortgaged premises in the proceedings mentioned, or so much thereof as may be necessary for the purposes, he sold." It is urged that the language “so much thereof as may be necessary ” is restrictive so as to limit a sale to so much as was needed to pay the claim on which suit was instituted; and that, although all the junior lien-holders are made parties, and all their claims were over
The general rule is that a complainant may dismiss his bill with costs, but it is not without exception, and it has been refused where a suit has brought in co-defendants who, as against each other, are entitled to adjudication of their rights, and costs have been incurred by appearing and establishing their claims. In Lashley vs. Hogg, 11 Vesey, 602, Lord Eldon under such circumstances refused to permit the bill to be dismissed, holding that “ the creditors being made parties by being called in had an interest in the decree” of which they could not be deprived in that way. Following that case and citing it, the Court in Bethia, et al. vs. McKay, et al., Chevis’ Law and Equity Reports, p. 95, Equity, decide the same way. Tlie same rule is laid down in Bank of State of South Carolina vs. Rose, 1 Richardson’s (Equity) Reports, 292, and in Seymour vs. Jerome, Walker's Ch. Rep., 356. It is not, as we have said, necessary to pass on that question as the bill was not asked to be dismissed.
In view of the universal practice in the State in such case, to make all junior lien-holders parties, and make an end of suits, by paying all according to priorities under
In Boteler and Broolces, mortgagor and mortgagee only were parties, and the property could be divided so as to save the mortgagor a part of the estate. In Hubbard and Wife vs. Jarrell, the property- consisted of sundry distinct, independent and separate parcels, used separately and differently. Here there are sundry parties and lien-holders—the farm mortgaged is one body of land held and cultivated in solido as one farm. It had hut one set of farm-buildings, and if it had been divided, it would have been done by arbitrary lines fixed by the trustee, as the Court gave no directions on the subject. If the parties had requested it, the trustee would have been justified in so dividing it, and if it appeared to the Court that the sale was promoted or not injured by it, his action would have been ratified. Such suggestion or request does not appear to have been made, and from the proof we think he was justified in thinking a sale in sólido, most advantageous and least expensive to the parties. The preponderance of proof to our apprehension, indicates that a sale in parcels would not have produced larger results.
When there are junior lien-holding defendants, the Court will always direct the sale to be made in such way as will best protect them. 2 Jones on Mortgages, 1616.
In this case the interests of all the parties required that the rights of all should be settled finally in one proceeding, without the costs of another, and the Circuit Court was clearly right in overruling this exception.
2. The other objection is, that the Easton Bank’s claim, to secure the payment of which the mortgage had been assigned to the Easton Bank, has been paid. So far as this objection proceeds upon the argument, that no decree was passed for the payment of that mortgage, it has been passed upon in what has been said on the preceding point. It is supposed however to reach further, and to deny the capacity of the Easton Bank to be a purchaser at that sale, by reason of section 5131 of the Revised Statutes of Congress. In our view of this case, it is not necessary for us to construe this Act of Congress, or to inquire whether under the facts disclosed in the record, the Easton Bank was justified in buying. It is competent under that Act, for Banks to buy to save claims due them. The record discloses that the Easton Bank has a claim.
The appellant says it has been paid. Conceding that the proof shows it has been so far paid, as to shut out the claim on the property sold, (which we by no means intimate as established,) it would not follow that the Bank could not buy to save it, or had not some other claim not
Order affirmed with costs, and
cause remanded.