Wayman v. Stockett

4 Md. Ch. 495 | New York Court of Chancery | 1847

The Chancellor:

In this case, exceptions having been filed to the report of the Auditor of the 8th of July last, by Richard Gr. Stockett, and the same having been argued by the counsel of the parties, they have received due consideration from the Chancellor. Those exceptions raise the question of the liability of the said Stockett for interest on the several sums paid by him into court, un« der its sanction, whilst they have remained uninvested.

[With reference to the bill for the foreclosure of the mortgage, the Chancellor, on the 30th of July, 1847, delivered the following opinion.]

Looking to the decision of the late Chancellor, in Jones vs. Stockett, 2 Bland, 424, 425, and to the circumstances under which the payments wore made, I do not think that Bichard €r. Stockett should be charged with interest as suggested by the Auditor.

It is understood that no decision is expected at this time in regard to the credit claimed by Stockett for payments on account of fees and taxes.

A question was also presente<|, and the opinion of the court asked, with respect to the costs which may have accrued upon the proceedings instituted by Larkin Shipley, under the order of the 29th of July, 1846.. It is my opinion, that inasmuch as these proceedings were expressly authorized by the said order, the party for whose benefit they were instituted will, if they prove successful, be entitled to his costs, as is usual in other cases. The opinion of the court upon the last question is expressed only because the solicitors on both sides asked for it.

The Chancellor:

This bill is filed for the sale of certain premises which had been mortgaged by the defendant to Larkin Shipley, on or about the 18th of September, 1821, for the purpose of securing the payment of a sum of money therein mentioned.

This debt, by certain proceedings in the Court of Chancery, described in the bill, became and was constituted a part of the trust fund, to be held by Wayman, one of the present plaintiffs, and the defendant, Stockett, in trust for the complainant, Shipley, for life, with remainder to the persons mentioned in the proceedings. It appears by the Auditor’s report of the 8th of July, 1847, that divers sums for interest and principal have been paid by Stockett on account of this debt, reducing it as of the date of the said report to $981 67. It also appears by an order of the late Chancellor, passed on the 29th of July, 1846, upon the petition of the complainant, Shipley, praying that proceedings might he instituted for tho foreclosure of this mortgage, amongst others that authority was given for that purpose. The language of the order is, “that the said mortgages in the said petition mentioned, bo forthwith closed, and that the said Larkin Shipley have leave to cause a suit or suits to be instituted for that purpose in the names of the trustees, in such manner as may be most proper, necessary and beneficial to him.”

The bill was filed under this order, but the answer of Stockett insists that the proceeding against him should have been by petition in tho original cause, and not by hill for foreclosure and sale of the mortgaged premises. This objection, I think, is answered by the order of July, 1846, which expressly authorizes the party to proceed by suit, or suits, as may be most beneficial to him. I cannot think the Chancellor intended to confine the plaintiff to a proceeding by way of petition in the original cause.

In an account marked II., filed on the 22d of January, 1838, and ratified on the 24th of the same month, the defendant, Stockett, was allowed a commission of six por cent, on the amount accounted for by him. There is not, in my opinion, any thing in his conduct since then, which should deprive him of a commission at the same rate on the payments made by him since.

The proceedings in the original cause of Jones and wife against Wayman and Stockett, being, by agreement of counsel, referred to as evidence in this cause, it is thought the sum now duo on tho mortgage of Stockett may be readily ascertained by correcting his accounts filed on tho 12th of this month, by crediting him with commissions on the payments made by him sinco tho former account. Upon ascertaining the precise amount due from him, the Chancellor will pass a decree for tho sale of tho mortgaged premises, unless the said Stockett shall pay the sum so due, with interest and costs, within nine months from the date of the decree. The Chancellor thinks, the defendant under all the circumstances, was warranted in supposing the fund in his hands would not he abruptly withdrawn from him, and it is for this reason that he is disposed to give him á reasonable time to pay the debt.

[The trustees having invested a part of the trust fund as directed, brought the certificates of stock into court, and upon the suggesting of counsel as to their safe keeping, the Chancellor, on the 4th of August, 1847, passed the following order.]

McLean, for Complainants. Alexander, for Defendant. The Chancellor:

It having been suggested in this case, that the security of parties requires that some place of safety be provided for the custody of moneyed securities invested under the orders of the Court of Chancery, or placed under its control, and the Chancellor concurring in the propriety of this suggestion; it is, thereupon, ordered, that all such securities be placed by the Register in the Farmers Bank of Maryland, and that for that purpose, he procure a trunk, or box, properly labelled, in which such securities shall be put, and then deposited as aforesaid, in the said bank. And that the register shall so designate and mark the several and respective securities, by endorsement on the envelopes, or otherwise, as to show the cases to which they belong.