45 Md. 389 | Md. | 1876
delivered the opinion of the Court.
The appellees, Rosenstock and Stein, being owners in fee of certain lots situated in Baltimore County, fronting on Boundary or North Avenue, leased the same to one Caskey for ninety-nine years, renewable for ever. At the same time Caskey mortgaged his interest in them to the said Rosenstock and Stein, to secúre advances to the amount of $32,000, for the erection of houses on the lots. These two instruments, the lease and mortgage, were executed, delivered, and recorded on the same day, the 6th of August, 1872, and constituted one concurrent transaction. After the houses had been built, the mortgagor made default, and his leasehold interest in the property was sold under the mortgage; and now the controversy arises, whether the mortgagees or certain mechanics’ liens are entitled to priority in the distribution of the proceeds of sale. The mechanics rest their claim to priority on two grounds:
2nd. That the mortgage is void as against their claims, because the day of the month in the acknowledgment of it is left blank.
1st. As to the first ground : We have said in Brooks vs. Lester, 36 Md., 70, that what the law means by the “ commencement of the building,” is “ some work or labor on the ground, such as beginning to dig the foundation, or work of like description, which every one can readily see and recognize as the commencement of a building,” and in Jean vs. Wilson, 38 Md., 296, we held, that such work must be done with the intention and purpose then formed to continue it to the completion of the building, and that work done on the ground without any design or purpose of constructing a building at that time, and which was intermitted, is not sufficient. Whether the work here relied on as having been done prior to the mortgage, gratifies these requirements, is purely a question of fact, to be determined by the evidence in the record. We have carefully examined the testimony on this subject, and especially that relied on by the claimants, and the result of that examination is this: . The surface of the ground in this locality is much below the grade of the avenue, and the bank of the latter slopes down upon these lots. According to the testimony of the claimants’ witnesses, Caskey some time prior to the 13th of July, before he had acquired any interest in the property, and before any survey of them had been made, went with his foreman and a laborer to the lots, and drove stakes to indicate the line of the foundations, and at one corner dug or scraped away the dirt of the slope down to a level. What was thus done occupied but a short time, only part of a day. Caskey himself calls this work grading, but says it was done in order to prepare the plans, to get the depth by: that it was quite a deep place below the avenue, and we
2nd. As to the second ground : On its face the mortgage bears date the 6th of August, 1872, professes to have been executed, on that day, is duly attested, the attesting witness being the magistrate before whom the acknowledgment was taken, and it refers to the lease as bearing even date with it. The acknowledgment was before a magistrate in Baltimore City, who therein certifies, “ that on this-day of August, A. D., eighteen hundred and seventy-two, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the City of Baltimore, personally appeared David W. Caskey, and acknowledged the aforegoing mortgage to be his act,” and that, at the same time, also personally appeared before him the mortgagees, and made oath that the consideration .of the mortgage “is true and tona fide as therein set forth.” Then follows a certificate of the Clerk of the Superior Court, dated the 6th of August, 1872, that the party “before whom the an'nexed acknowledgment and affidavit were made, was, al the time of so doing” a duly commissioned and sworn justice of the peace of the State, in. and for the City of Baltimore. The instrument also bears the endorsement, “Recorded August 6th, 1872, and examined,” placed thereon by the Clerk of the Circuit Court for Baltimore County, in which county the lots were situated. From these facts appearing on the face of the instrument itself, it is clear the acknowledgment could have been taken, on no other day than the 6th of August, 1872. They definitely establish the fact, that it could not have been made before or after that date. By the Code acknowledgment is made essential to the validity of a mortgage, and Art. 24, sec. 8, declares that the certificate of acknowledgment “ shall contain ” among other things, “ the time
Decree affirmed.