Seebold v. Lockner

| Md. | Feb 5, 1869

Bartol, C. J.,

delivered the opinion of the Court.

The bill of complaint in this case, was filed by the appel-lees to redeem a mortgage, executed by them to the appellant-on the 13th day of October, 1857, conveying a lot of ground in the city of Baltimore. The mortgage was made under the provisions of the Act of 1833, ch. 181, and. its supplements.

The bill charges that the mortgagee had been in possession • of the property,'receiving the rents thereof, whereby the mortgage debt had been paid, and prays an account thereof and the re-possession of the property.

The defendant pleaded in defence to the bill, the pendency in the same Court of a bill filed by him against these complainants for foreclosure of the same mortgage, that the complainants appeared in said cause and made defence thereto, and set up and alleged the same matters and things in de-fence thereto, as are set forth in their bill of complaint in this cause, &c.

To this plea the complainants filed a general replication. Whereupon the Circuit Court passed a decree referring the cause to the auditor, with directions to take proof and state an account as prayed, and awarding costs to the complainants. The appeal is from that decree.

The decree states, that “ it appeared to the Court upon the inspection of its records, that there is no such record as is in the defendant’s plea pleaded.”

Supposing the Court to have decided correctly upon the issue presented by the pleadings, there was error in passing the decree. According to the rules of equity pleading, and the established practice in this State, the effect of filing the general replication was to admit the legal sufficiency of the plea, and to raise an issue of the truth of the matters therein alleged. If overruled for want of proof, the defendant upon payment of the fine of ten dollars, imposed by the Code, Art. 16, sec. 102, ought to have been allowed to answer the bill. Bank vs. Dugan, 2 Bland, 257; Worthington vs. Lee, 2 Bland, 685; Chase vs. McDonald & Ridgely, 7 H. & J., 197, 198; Carroll vs. Waring, 3 G. & J., 491; Danels vs. Taggart, 1 G. & J., 312; Cooper’s Eq. Pleadings, 328; Hughes vs. Blake, 6 Wheat., 472; Rhode Island vs. Massachusetts, 14 Peters, 257.

If the case came before us on the original record, the appellant would be concluded by the judgment of the Court below upon the issue presented by the plea, and nothing would remain for this Court to do, except to reverse the decree for the error above stated, and to remand the cause for further proceedings, in accordance with the established practice.

But the record has been amended by an agreement of the solicitors filed in this Court, whereby it is admitted: “ That the defendant herein, in the month of March, 1860, filed in the Circuit Court for Baltimore city, a petition, in the usual form, to foreclose the mortgage named in the bill in this case, under the Act of 1833, ch. 181, that a decree for the sale of the mortgaged property was passed by said Court, and a trustee appointed to make such sale, that said trustee proceeded to make sale, reported his said sale to said Court; that these complainants, by their solicitor, filed exceptions to said sale so reported, and that said Court sustained some one or more of said exceptions, set aside said sale; that other proceedings were had, and said cause is still pending in said Court.”

In view of this admission, it becomes necessary for this Court to decide whether the pendency of the former proceedings is a bar to the present suit.

It is a good plea to a bill in equity, that there is another suit depending in the same Court for the same cause. Cooper’s Eq. Pl., 272; 2 Daniel’s Ch. Prac., 720; Story’s Eq. Pl., 737.' “ It is, however, requisite that the whole effect of the.second suit should be attainable in the first.” 2 Daniel’s Ch. Prac., 721; Cooper’s Plead., 274; Law vs. Rigby, 4 Bro. Ch. Ca., 60; Peckford vs. Hunter, 5 Sim., 122. Since the decision of Black vs. Carroll, 24 Md., 251, the jurisdiction of the Court under the Act of 1833, to enter a decree after default, cannot be questioned.' It has also been settled that the proceeding under the Act being ex parte, until after the decree and the sale, “ the propriety of the decree as well as the validity of the sale thereunder, may be inquired into and contested, after the passage of the order of ratification nisi, and before the final order of confirmation has been passed.” 5 Md., 99; 24 Md., 255

(Decided 5th February, 1869.)

It is competent therefore, for the appellees to urge and rely upon the equities set up in their present bill, as a defence in the former suit against the claim of the mortgagee, and if sustained by competent proof, to have the decree therein set aside. Thus far the relief sought by the appellees in the present suit, might be obtained in the former. But if it should appear, upon a proper accounting, that the mortgagee has received of the rents and profits any excess over and1 above the mortgage debt and interest, and expenses upon the property, no decree could be passed in the former case in favor of the present appellees for such surplus; that is part of the relief prayed in the bill filed in this cause, to which ,the appellees may be entitled. It thus appearing that the whole effect of the present suit cannot be attained by the appellees in the other case, we think the plea was properly overruled. But for the reasons before stated the decree was erroneous and must be reversed, and the cause remanded for further proceedings, in accordance with the opinion of this Court.

Decree reversed and cause remanded.