82 Md. 42 | Md. | 1895
delivered the opinion of the Court.
In the year 1854, James Hazle, of Queen Anne’s County, conveyed to Charles W. Hendrix an undivided half-interest in a farm in that county, by deed purporting to be a conveyance in fee simple; the said grantee at the same time taking from certain other persons a deed in fee of the remaining interest therein, it being conceded that the last named grantors had a right to convey. But when Hazle made the deed above-mentioned, he had only a life-interest in the undivided half conveyed by him, the remainder in fee being in his three children. In order to indemnify the grantee against loss by reason of his purchase, Hazle executed to Hendrix a mortgage of indemnity on a tract of land in Kent County. By several mesne conveyeyances Burris Subers, the appellant, became and is now the owner of the land in Queen Anne’s County, which was in part conveyed by Hazle to Hendrix, and Samuel Hurlock, the appellee, likewise became the owner of the land mortgaged in the manner above mentioned. For the purpose of this case it has been agreed that the appellant has been actually evicted by the children of said Hazle, who, he being dead, are the real owners in fee of the undivided interest conveyed by their father. By reason of this eviction, the appellant claims indemnity and remuneration of said Hurlock by virtue of said mortgage. This claim is resisted by the appellee generally, and because the statutory plea of limitation is a bar thereto. It is also contended that this claim is stale and without merit by reason of appellant’s laches, which will prevent any recovery by him against the appellee.
The only question we need consider is, conceding no proceedings were taken on the mortgage until more than twenty years after the youngest of said children came of age, whether the Statute of Limitations constitutes a bar to the claim now made. The answer to this question depends upon another, namely, when did the cause of action accrue and the statute begin to run? In order to answer this question we must examine the mortgage, or rather that part
“ Provided always, and it is the true intent and meaning of these presents, and of the said parties hereunto, that if the said Joseph Benjamin Hazle, Jámes Hazle and Alice Ann Hazle, do or shall when and so soon as they shall have severally attained the age of twenty-one years, at the cost and charges of the said James Hazle, convey and assign unto the said Charles W. Hendrix, his heirs and assigns, by such deeds and conveyances as the said Charles W. Hendrix, his heirs and assigns, or his or their counsel learned in the law shall approve of, all their rights, title, interest and estate, in and to the said lands and real estate contained in the said deed from James Hazle to the said Charles W. Hendrix, and hereinbefore referred to and recorded among the land records of Queen Anne’s County, without any consideration to be paid to the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle for so doing; and also, if, and in case the said James Hazle, his heirs, executors or administrators, do and shall in the meantime, and until the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle, shall have executed such conveyance as aforesaid and delivered the same, save harmless, defend, keep harmless and indemnify the said Charles W. Hendrix, his heirs and assigns, executors and administrators, and his and their goods and chattels, lands and tenements, and the said tract or parcel of land and premises (an undivided half part, as aforesaid) so to be conveyed by the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle to the said Charles W. Hendrix as aforesaid, and the rents, issues and profits thereof, from all claims and demands to be made thereto by or on the part and ■ behalf of the said Joseph Benjamin Hazle, James Hazle and Alice Ann Hazle, then and from thenceforth these presents, and every matter and thing therein contained, shall cease and be utterly null and void, anything herein contained to the contrary thereof in anywise notwithstanding.”
But in no proper sense can the clause of the mortgage, which provides for idemnity, be considered as a separate or independent covenant, for if the condition of the mortgage is to be taken as a covenant, it is a covenant for title, and if so, the breach occurred, as we have said, as and when the children severally came of age, (Wood on Limitations, sec. 173 and note 2,) and the indemnity against loss of rents which might happen because of the successful assertion of title by the children before the period fixed for making the deeds and perfecting the title of the mortgagee was incident to and a part of the principal undertaking.
The general rule in regard to the application of the Statute of Limitations to the rights of mortgagor and mortgagee is thus expressed in 2 Jones on Mortgages, section 1210:
But if we should adopt the view of the appellant which has been so forcibly presented — that the right of action did not accrue until the death of the mortgagor, the operation of the statute might, at the option of the mortgagee, be suspended for nearly three times the statutory period — for it is conceded that he could have foreclosed on failure of the children to execute deeds at the time stipulated, but it is contended that he was not bound to do so until twenty years after the mortgagor’s death. We are not informed what was the mortgagor’s age when he died in 1888, but it is possible he might have lived twenty years longer — that is, until 1908 — and in that event, if the appellant’s construction be correct, he could have foreclosed his mortgage in
If our construction of the mortgage be correct, the Statute of Limitations is a complete bar to the appellant’s claim, for no proceedings were taken on the mortgage until over twenty-six years after the eldest child of the mortgagor arrived at the age of twenty-one years, when, as we have said, the right of action accrued.
Decree affirmed with costs.