41 Md. 506 | Md. | 1875
delivered the opinion of the Court.
It appears from this record that Benjamin Price and William (1. Price executed seven mortgages of leasehold property to the appellant. Three of them purport on their face to have been executed and acknowledged on the 20th of January, 1872, with the proper affidavits of the mortgagee, but they were not recorded until the 4th of January, 1878. The other four purport to have been executed on the 13th of September, 1872, but no affidavits were made to them and the acknowledgments were not complete in form nor signed by the magistrate. In this condition they were recorded, also on the 4th of January, 1873, but the mortgagee subsequently withdrew them from record, made the affidavits to them and procured the certificates of acknowledgment to be perfected by the magistrate, and had them again recorded on the 18th of January, 1873. On the 3rd of January, 1873, the day before either of these instruments were recorded, the Prices executed a deed of trust of all their property to Willson, with power to sell the same and divide the proceeds amongst all their creditors, and this deed was recorded on the day of its date.
The parties then entered into an agreement, that the trustee should proceed to sell under his advertisement, and that such sale should pass to the purchaser all the title of all the parties to this suit, and that the proceeds after payment of expenses shall be brought into Court to be substituted in the place and stead of the property, and to await final decree and distribution, the rights of all the parties to the suit being transferred from the property to the proceeds, and all the parties to have the same rights against the proceeds that they might have against the property. Upon this the trustee proceeded to sell and re
As to the question of fact thus presented, we are of opinion upon a careful examination of the testimony that it fails to establish such a fraudulent alteration of the dates as to render the mortgages void for that reason. In this we agree with the appellant’s solicitor, but the other positions which he lias taken and argued with much zeal and ability, we cannot sustain. One of his main positions is that the trustee is not only not a purchaser for value, but stands simply in the place of the grantors and in no wise represents the rights of their general creditors. He treats the case as one entirely between the mortgagee and the mortgagors, as between whom he insists the former is entitled in equity to have the mortgages enforced as valid contracts and the fund applied to their payment, irrespective of the rights of creditors to enforce their claims against the property in the hands of the purchaser. He concedes, if this position be sustained, the purchaser may be placed
Assuming, therefore, the appellant is rightfully in a Court of Equity and there asking that these defective mortgages may be enforced as valid contracts for conveyances, and that such relief can he granted in this proceeding, how stands the case? The mortgages are defective under the Registry Laws, some in not having the requisite affidavit of the mortgagee and others in not being recorded in time. The proof shows who were the creditors of the mortgagors, and that a large majority of them both in numbers and amount became such after the execution of all these instruments. It is not a case where a priority is claimed for an unrecorded or defective mortgage over a subsequent encumbrancer ivith notice, nor where such a mortgage or a contract for a specific lien is sought to be enforced simply against existing creditors. It does
The learned Judge of the Circuit Court whilst taking substantially the same views of the case, was yet of opinion the creditors should be made parties to the proceedings, and because the complainant declined to amend its bill for that purpose, passed a decree dismissing the same without prejudice. But whatever may be the general rule as to parties in such cases, we are of opinion, as already intimated, that under the agreements and proceedings in this case no such amendment was necessary. This decree will therefore be reversed, and the cause remanded in order that distribution of the fund may be made in accordance with the views expressed in this opinion.
Decree reversed, and cause remanded.