31 Md. 106 | Md. | 1869
delivered the opinion of the Court.
In this case the decree appealed from must be affirmed; the appellants wholly failing to show any right or title in themselves, and the case falling within the principle of Polk vs. Rose, 25 Md., 153.
It has been insisted by the counsel for the appellants, that the leasehold interest of Huntt had been surrendered to Hamilton, the lessor and mortgagee, before the assignment by the latter to the appellee, and that by such surrender, and the union of the legal and equitable title in the same person, the mortgage had become merged and extinguished, and, consequently, the appellee acquired no right to entitle him to institute and maintain this proceeding. But upon examination of the record, we have discovered no sufficient evidence of such surrender of the leasehold interest, either by Huntt himself, or by any person claiming by assignment under him. That interest, subject to the mortgage, would appear to have been at the time of the institution of these proceedings, still outstanding.
Nor would it have followed, as a necessary consequence, if the evidence had shown that Hamilton had acquired the leasehold interest of Huntt, that the mortgage charge thereon would have been extinguished. Eor it is now well settled, that a person becoming entitled to an estate, subject to a charge for his own benefit, may, if he elect so' to do, and manifest such election, take the estate and keep up the charge. And a Court of Equity will sometimes hold a charge extinguished, when, by the strict rules governing the subject at law, it would be regarded as subsisting ; and sometimes preserve it, where at law it would be merged. The question, as said by Sir Wm. Grant in Forbes vs. Moffatt, 18 Ves., 384, is upon the intention, actual or presumed, of the person in whom the interests are united, founded upon the reason or necessity of the case.
There is nothing in the proof to impeach the assignment of the mortgage by Hamilton to the appellee; and the
The tax title is not supported, nor do we understand that it is relied on by the appellants. And as to the verbal agreement or understanding between Polk and Hamilton, in regard to the holding of the leasehold estate by the former, and the relinquishment of the mortgage thereon by the latter, relied on, that, of course, proceeds upon the assumption that the leasehold interest had been surrendered to Hamilton, which, as we have said, is not shown by the proof.
But if it were conceded that such surrender had taken place, the agreement set up by the appellants, to say nothing of the question as to the sufficiency of the consideration upon which it was founded, is clearly not only within the Statute of Frauds, but null and ineffectual by our registry law. 1 Code, Art. 24,. sec. 1. No interest in. or concerning land, for a term exceeding seven years, could be transferred otherwise than in the mode prescribed by statute, and no act in pais was competent to that purpose. Peter vs. Schley’s Lessee, 3 Har. & John., 211; Hays vs. Richardson, 1 Gill & John., 366; Anderson vs. Critcher, 11 Gill & John., 450.
Decree affirmed.
