69 Md. 572 | Md. | 1888
delivered the opinion of the Court.
On the 15th of June, 1885, Caleb C. Merritt executed to Moses Fox, the appellee, a mortgage -upon certain property to indemnify and save him harmless from all loss and damage that might befall the mortgagee by reason of his entering security for the mortgagor in a bond to dissolve a certain attachment proceeding in the
On the 28th of, September, 1885, Caleb C. Merritt and wife conveyed to Ida Shipley, wife of Charles Shipley, all his (Caleb C. Merritt's) real estate including the portion thereof covered by the mortgages above recited, and they being made defendants in the suit, of Moses Fox for the foreclosure of his mortgage of indemnity, have appealed from the decree in favor of the appellee. All these conveyances the hill set out.'
The appellants had set up in defence an assignment of the Hall and Brehme mortgage to them, dated the 28th of September, 1885, and this mortgage the decree-had declared cancelled and paid. They had also set up a claim for money paid by them on the Hoffman
The same contentions are pressed in this Court as grounds of error, and we will consider them seriatim.
1. Proceedings having been instituted for foreclosure under the Hall and Brehme mortgage, and decree for sale obtained, Merritt and his counsel applied to the appellants to assume its payment until certain property of the mortgagor, Merritt, could be sold. Negotiations were then pending for the sale of certain property on Paca street, wherein Merritt had one-fourth interest, his uncle owning one-half, and his sister, Mrs. Shipley, the other fourth. Shipley agreed to make such advances as were necessary to stop the sale under decree of Hall and Brehme for foreclosure, and was to be reimbursed out of the sale of the Paca street property as far as it would go; and to protect him in so doing, he was to have an assignment of the Hall and Brehme note. This was the understanding entered into by Merritt and his counsel with Shipley and his counsel. Accordingly on the 24th of August, 1885, Shipley gave his check lor 8214.30 to D. S. Briscoe, attorney of Hall and Brehme, the amount needed to pay costs, &c., and secure a stoppage of the sale under the foreclosure decree. In a few days thereafter, viz., on the first day of September, 1885, the negotiation for the sale of the Paca street property was concluded, and the same was conveyed to Griffith and Turner, who paid Shipley not only his wife’s share of the purchase money, but also Merritt’s share thereof, which, according to the proof, was to be 82000; Merritt, having assented to the sale on the condition he was to have $2000 clear. On the third of September, 1885, Shipley paid D. S. Briscoe,
On the day of the final payment by Shipley of the Hall and Brehme mortgage, viz., on the 3rd of September, 1885, Merritt gave Shipley his due bill for $374.44. Merritt testifies that this due bill was for previous advances on account of the Hall and Brehme mortgage, and nobody testifies to the contrary. Still the appellants contend it was not given for those, advances, but for something else, and they rely upon the fact, that the due bill is for a different amount from- that actually paid Mr. Briscoe on the 24th of August, preceding the final payment of that claim which was $274.30. If it did not include the payment of costs, commissions, &c. to Bricoe, Mr. Shipley could easily have so testified, which he did not do. His failure to do so creates a strong, presumption in favor of the verity of Merritt’s testimony. Without doubt, the due bill does include something else 'besides the first advances paid Briscoe to stop the sale; precisely what that was we do not know; but it was both reasonable and natural, that all the then outstanding indebtedness of Merritt should he included, and Barnes testi
2. The next question for consideration is, has Eox, by any conduct of his, estopped himself from prosecuting his suit as against the appellants? We are all of opinion that he has not. The doctrine of estoppel “stands on the broad ground of public policy and good faith.” “It is interposed to guard against fraud and prevent injustice.” It refuses to a party the right to deny his admissions when they have been acted upon by persons whom they were designed to influence. To make the estoppel effectual it must also appear that the party made the statements relied on with a full knowledge of all the facts affecting his own rights. Alexander vs. Walter, 8 Gill, 240; Stallings vs. Ruby’s Lessee, 27 Md,, 149; Johnson vs. Frisbie, 29 Md., 76; Reynolds vs. Mutual Fire Ins. Co. of Cecil County, 34 Md., 280; Homer vs. Grosholz and Coquentin, 38 Md., 520; Bramble, et al. vs. State, use of Twilley, 41 Md., 435. These authorities make it clear, that Pox has said or done nothing which ought to work an estoppel upon him. His indemnity mortgage was on record, and was notice to everybody. Whether Shipley had actual knowledge of it we do not certainly know, for he has abstained from testifying upon any branch of the case. The records of the Court also disclose the pendency of the suit recited in Pox’s mortgage, which might culminate in Fox being forced to pay the judgment obtained, and which the indemnity mortgage was designed to protect against. The records also showed that
i?. The Hoffman judgment the appellants contend has been admitted in the hill as a subsisting claim in priority of Fox. We do not so understand the bill or its effect. In the appellants’ indemnity mortgage they were secured against the Fox judgment, and this Hoffman judgment against Merritt, in order that they might settle and finally distribute the estate in which Merritt had an interest. The appellee knew he had been paid his judgment, and that no liability existed under that mortgage because of it, and therefore he so averred, and added the statement that no liability under it could exist except for the Hoffman judgment. He knew nothing of it, and could do. no more than charge, as he did, that it might be made a subject of investigation. He does not admit that there is any
The Judge of the Circuit Court concluded his opinion by saying he was unable to find anything was due Shipley from Merritt, but said he would allow the auditorio take further testimony on the subject; but in his decree he reserved no such right. He decreed Fox's claim should be paid, and in default that the mortgaged premises be sold, and this is relied on as a ground of error. The opinion was filed the 19th of April, 1888, and the decree was filed the second day of May succeeding. Subsequent reflection no doubt convinced the Judge that there was really nothing due to the appellants, and that there was no propriety in allowing further proof on the subject. In that conclusion we think he was right.
The exceptions of the appellants to the testimony were not formally passed on by the Circuit Court, so far as the record discloses, and we need say but little respecting them. The last exception, respecting the declarations of Merritt and others, as given by Mr. Harman, is sustained, and the statements excepted to have been disregarded. The other exceptions are untenable. The bond to dissolve the attachment was provided for by law, and became a part of the record, so that a copy of it as such part of the record was clearly
Decree affirmed.