47 Md. 520 | Md. | 1878
delivered the opinion of the Court.
By a mortgage dated the 14th of January, 1876, Andrew J. Myers and his wife, conveyed a lot of ground and premises located on Monument street, in the City of Baltimore, to the .Ives Manufacturing Company of Medina, in the State of New York, as collateral security for certain undertakings therein specified, and the main questions presented by the cross-appeals in this case are, 1st, is the mortgaged property responsible to any extent for these engagements? and 2nd, if so, to what extent? These we shall consider in their order.
1st. The claim for total exemption arises in this way. It appears that by a decree of the Circuit Court for Baltimore County, passed in 1860, in a proper proceeding for that purpose, Myers was appointed trustee to execute the trusts created by the will of Edward Griffith, who had died in 1853. This appointment was made in consequence of the death of one, and resignation of the other of the executors and trustees named in the will. The principal beneficiaries and cestuis que trust under the will were Mrs. Myers, a daughter of the testator, and her children. Under this appointment, Myers received into his possession, and had charge of a very large estate consisting of real and personal property, with power of sale and investment and re-investment for the benefit of his wife and children, and continued in charge thereof until March, 1876. On the 14th of March, of that year, Mrs. Myers, by her next friend, filed a petition
Mr. Suter, the trustee, now insists that though the title to this Monument Street property stood in Myers’ individual name, yet it was in fact purchased with these trust funds and cannot therefore be sold to satisfy any of the obligations secured by the mortgage. This equity is relied on in a case wherein the mortgagee is seeking to enforce the mortgage, and of course the first step to be taken by the trustee who sets it up is to establish by clear and satisfactory proof that the money belonging to the trust estate has been invested by Myers in this property. If there is a failure of proof on this point it is needless to inquire whether there are any other valid objections to the claim. The only proof adduced by the trustee in support of this position is a statement made by Myers in the report accompanying his answer to his wife’s petition in the Baltimore County case, to the effect that he had invested $10,000 cash, belonging to the trust estate, in this property. But assuming (without so deciding) that this statement contained in that record, can be admitted as evidence
2nd. The extent of liability depends upon the construction of the mortgage itself. It is shown by the record that a son of Mr. Myers was a member of the firm of Eigelberner & Co., doing business in Baltimore. This firm was engaged in the sale of plumbers’ hardware and materials, and the Ives Company were manufacturers of such articles. On the 23rd of October, 1875, this firm and company entered into a lengthy written contract, the terms of which need not be stated at length. It is sufficient to say that by this contract, the company engaged to supply the firm with, certain manufactured articles specially described, in specified quantities, and at specified prices, which the firm agreed to pay for, and to give their notes endorsed by Myers, for-the amounts found due upon monthly settlements ; and by a clause expressed in very plain language, it was mutually stipulated “'that this agreement shall be, and remain in full force for the period of five years from the first day of January, 1876.” At the same time, Myers by a written contract under seal, endorsed on or appended to this agreement, engaged to
The remaining question is, has the auditor properly stated the amount of such liability, in the account which the Court has ratified. He has charged the mortgage with the aggregate amount of purchases made by the firm from the company after-the 1st of January, 1876, until the dealings under the contract ceased. To this, no valid objection can be made. He has then credited this amount with the sum of $288.89, for profits due the firm on goods shipped to other parties through their orders, and also with the sum of $102.87, for freight paid by the firm on goods shipped to them after January 1st, 1876. These credits are in accordance with the terms of the contract, and are all shown by the proof to relate to transactions since the contract went into effect. They are not payments of money on account, so as to fall within the doctrine requiring them to be applied to the antecedent unsecured indebtedness, or to the first items of debit in the account, but credits growing out of and springing from the contract itself, and in our judgment were properly allowed. He has also allowed a credit of $40.86 for merchandise returned. To this we see no objection. It is allowed as a credit to the firm in the company’s own account, and as of the 1st of January, 1876. The remain
Order affirmed, and cause remanded.