159 A. 599 | Md. | 1932
The appeal is on behalf of the children of a decedent, defendants below, from a decree requiring payment, from the personal estate of their father, of a debt secured by a mortgage on real estate held by him and his wife as tenants by the entireties. For the appellants it is contended that the real estate, now the property of the surviving wife solely, should be relieved of payment of only one-half of the debt, because it was the wife's debt as well as the husband's.
The facts are set out in a special case stated. Code, art. 16, sec. 221 et seq. The property was purchased after the marriage, in 1927, by means of $22,000 borrowed by the husband, but not secured by mortgage or by any obligation of the wife, and the conveyance was, as stated, taken in the names of both husband and wife as tenants by the entireties. In December, 1928, the loan for $22,000 was transferred to another lender, and this time secured by a mortgage of the property, the mortgage notes and the mortgage itself having been duly executed by the wife jointly with the husband. The husband paid from his own funds the cost of the mortgage transaction, and paid the interest on the debt until the time of his death in 1930. He had intended to pay off the loan and release the mortgage before his death, but failed to do so because of unwillingness to make a bonus payment required to obtain a release of the mortgage before maturity. The decedent left a will, executed in 1929, and in it included a devise to the wife of the property and its contents, without reference to the mortgage charge, but the devise was ineffectual to pass any estate, of course, because the wife surviving became sole owner of the whole. There was a residuary personal estate sufficient to pay the debts, including that represented by the mortgage notes.
The widow, now remarried, invokes, first, the principle that, when property of one is mortgaged to secure the debt *247
of the other, the security is as between the parties under only a secondary obligation for payment, and the personal estate of the debtor must first be looked to. Cunningham v. Cunningham,
This court concurs in the conclusion on the ground last urged on behalf of the widow. In the opinion of a majority of the judges, the debt originally contracted without a mortgage was, even though contracted for the purpose of making part payment of the purchase price of the land, nevertheless contracted by the husband alone as his personal obligation only. The wife was given her interest as one of the tenants by the entireties unincumbered. And, proceeding from this conception of the original debt as that of the husband alone, it seems to follow that, when the loan was newly placed, and the mortgage given, it was given for a debt of the husband's. Although the land was held by both, as tenants by the entireties, and the husband's devise would not operate to convey it, the court concludes that it should nevertheless have that part of its intended effect which was not so rendered ineffectual, and operate to the extent of freeing the land of the husband's *248
debt for which it had been mortgaged. If the husband had not been mistaken as to his power to pass an estate by his devise, the estate would have passed free of the husband's debt, under the rule, as stated by Chief Judge Alvey, that, "where a debtor has a portion of his real estate under mortgage, whether with or without covenant to pay, and the debt is the debt of such debtor originally or by adoption, and not a charge primarily affecting the estate, and he makes his will devising the mortgaged estate (and there be no intention to the contrary, either express or implied), in such case, as between the devisee and the residuary legatee * * * the personal assets are the primary fund to be applied for the payment of the mortgage debt in exoneration of the land." Harris v. Dodge,
Decree affirmed, with costs to the appellee.
