42 A. 920 | Md. | 1899
On February 3rd, 1873, Spotswood Garland, of Baltimore County, conveyed by way of mortgage to Douglas H. Gordon, of that county, to secure a loan of twenty thousand dollars, certain lands situate in Hampden, at that time Baltimore County, but, since the Act of 1888, ch. 98, a part of Baltimore City, including the four lots in controversy in this case. *34
On the 28th of July, 1877, Gordon, the mortgagee, for the purposes of foreclosure, assigned this mortgage to John Scott, Jr., a member of the Baltimore bar, who, subsequently, on September 11th, 1877, under the power contained in the mortgage, sold a large part of the mortgaged land, not including these lots in dispute, for the sum of $2,100; the sale was ratified by the Court, and afterwards, on the 20th of March, 1878, an auditor's account was filed therein showing a balance of indebtedness of $7,691.01, with interest from the 5th of September, 1877, after allowing credit for the money arising from the sale. This audit and account was ratified by the Court on the 17th of May, 1878.
John Scott, Jr., is dead, and Archibald H. Taylor, the appellant, was, on the 28th of October, 1897, appointed administrator of the estate, who, upon an order of the Circuit Court of Baltimore County, substituting him as party plaintiff, proceeded as such administrator to advertise and sell the mortgaged land, including these four lots. It further appears that David Carroll, the testator of the appellees, prior to June 20th, 1877, acquired title to both the leasehold and reversionary interests in the four lots described in the mortgage and under his will they passed to the appellees.
This bill is filed by the appellees to restrain the sale and to declare that this mortgage does not constitute a lien or charge on these lots, and from a decree in favor of the appellees this appeal has been taken.
The first question, then, presented by this state of facts relates to the right of the appellant to exercise the power of sale conferred by the mortgage. The appellant admits by his answer to the bill, that the mortgage was assigned to John Scott, Jr., for the purpose of foreclosure only, and whether this assignment vested such title in Scott as would pass upon his death to his administrator, is the question here.
The general proposition is true that the power of sale contained in a mortgage passes with the estate by assignment *35
of the mortgage debt and is not affected by the death of the mortgagee, because it is a power coupled with an interest, and is appendant to the estate. Berry v. Skinner,
And in Barrick v. Horner,
In view of these analogous authorities there can be no question, it seems to us, that Mr. Scott only acquired a special title for purposes of foreclosure only by the assignment of the mortgage in this case, and, as he took no beneficial interest or property in the mortgage, none could vest in or devolve upon his administrator.
But there is another reason, apart from the one just stated, why the decree of the Circuit Court should be *36 affirmed. It will be seen that on the 10th of August, 1877, Scott began proceedings as assignee, under the mortgage, in the Circuit Court of Baltimore County, and nothing further was done, looking to a sale of this property, until October 29th, 1897. The deeds to the appellees' testator were executed prior to June 20th, 1877, and for more than twenty years the appellees and their devisor remained in adverse possession of, and have exercised ownership over, these lots. There is no evidence of part payment or admission of an existing debt, nor recognition in any manner of the mortgage debt, nor any other circumstance from which it can be inferred that the debt has not been paid.
It is insisted, however, that the mortgage proceedings instituted by Scott in 1877, is a lis pendens, and "that no title by adversary possession, or limitations, could be gained by any one claiming under the parties to that suit."
Whether the proceedings in the Circuit Court for Baltimore County was at the time, a lis pendens, or not, we do not find it necessary for the purposes of this case to decide, because it is clear that in order "to constitute litis pendentia, there must be a continuance of litis contestatio." The long and unexplained delay in the prosecution of the suit, we think, amounts to laches. Mr. Pomeroy in his work on EquityJurisprudence, page 634, thus lays down the rule: "In order, however, that a purchaser pendente lite may be thus affected, the suit must be prosecuted in good faith with all reasonable diligence and without unnecessary delay. A neglect to comply with this requisite would relieve a purchaser from the effect of thelis pendens, as notice."
In Johnston v. Standard Mining Co.,
In the case now before us, there was nothing done "to keep the suit alive and in activity," from the 20th of October, 1877, the date of the ratification of the sale made by Scott, until October 29th, 1897, when the appellant was substituted as plaintiff. Nor does the record disclose any circumstance from which a satisfactory excuse or explanation can be given for the long delay in prosecuting this suit. And this being so, the facts and circumstances of the case bring it within the application of the well-settled rule as to laches.
For these reasons the decree will be affirmed.
Decree affirmed.
(Decided March 14th, 1899).