9 Gill 185 | Md. | 1850
delivered the opinion' of this court.
The prominent facts in this case, and those upon Which it must be decided, are as follows.
On the 27th day of July, 1826, Tschudy executed a mortgage to Hillen and Brice to secure the payment of certain sums of money. This mortgage to Hillen and Brice, included only a part of the land owned by Tschudy in Baltimore county. On the 2nd of June 1827, Tschudy and wife executed a-mortgage to Mary Kurtz, to secure the payment of $1000. This mortgage included the ninety acres of land in Baltimore county, and certain lots of ground in- Baltimore city, which
On the 20th day of August 1829, Hillen and Brice, by their deed, regularly executed afid acknowledged, released their mortgage of the 27th July 1826, and on the same day the deed of release was executed by Hillen and Brice to Tschudy, Tschudy executed to Hillen, a mortgage of the same land which had been thus released to him by Hillen and Brice.
In the year 1830, the mortgagees Kurtz and Woollen and otheis, executed a deed of release of the city lots which had been included in their mortgages.
The land included in Hillen’s mortgage lying in Baltimore county, has been sold under a decree passed in this case, on a bill filed by the executors of Woollen, and the question is, which of the mortgagees are entitled to priority, or to be first paid out of the fund?
This question necessarily brings up for consideration and decision, the effect and operation of the deed of release of the 20th day of August 1829 of the mortgage of the 27th July 1826, from Hillen and Brice to Tschudy. On the part of the appellants it is insisted, that this deed was an entire and absolute release on the part of Hillen and Brice, of their hen under the mortgage of 1826, and consequently deprived them of any priority. This conclusion is denied on the part of the appellees, and they insist that the deed of release of 1829, when taken in connection with the parol testimony of McCulloh, cannot in equity have the operation and effect to deprive HU. len of his priority upon the fund in question.
MeCuHolds testimony out of the case, and there could be no question as to the operation and effect of Hillen’s and Brice’s deed of release.
It may be conceded, that there are many decisions in which courts both of law and equity have determined, that receipts in deeds are only prima facie evidence of payment, and that parol evidence is admissible to contradict such receipts, but we have never yet seen the decision, fraud out of the question,
On what other imaginable ground, can it be insisted in this case, that Hillen is the prior incumbrancer? If he had never secured any lien before the mortgage of 1829, it could not be said, that his lien was prior to Kurtz’ mortgage of 1827, and if the release of 1829 released his lien of 1826, his lien arises Under the mortgage of 1829, more than two years subsequent to Kurtz’ deed of 3827.
But the appellee’s solicitor insisted in the argument, that the deed of release and the mortgage of 1829, having been executed simultaneously, Hillen did not thereby lose his priority as incumbrancer, and cases of dower, in which courts have adjudged that in cases of instantaneous seizin, where the husband had or took no beneficial interest, the widow was not dowable, were referred to. We think such cases are clearly distinguishable from the one under consideration. In the former cases, there never was any such estate in the husband, upon which the widow’s right of dower could attach; in this case there was a lien under the mortgage to Kurtz of 1827, subject to be defeated only by Hillen'’s prior mortgage of 1826, and if the lien of Hillen’s mortgage of 1826, was released by his deed of 1829, we can see no ground upon which Kurtz’ priority can be defeated.
It is insisted by the appellee’s solicitor, that if the court should consider, that the appellee lost his priority, by the arrangement of the 20lh August 1829, yet he is still entitled to priority of payment out. of the sales of the mill seat over the appellants, “because the appellants had two securities or sources of payment to look to, viz: the mill seat and the city lots, whereas the appellee could only look to the mill seat for payment of his claim.”
It must be borne in mind that the city lots were the property of Tsehudy’s wife, and that Hillen was not a creditor of Mrs. Tschudy, and had no claim upon them as a creditor. The doctrine seems to be well settled in courts of equity, that where there are two mortgagees under separate and distinct mortgages, and one and the same mortgagor and the prior mortgagee,
This case now under consideration differs in an essential particular from the one supposed. In this case the prior mortgagee, Kurtz, had a lien on two separate and distinct estates, of two separate and distinct mortgagors, and the subsequent mortgagee, held in lien on one only of the estates incumbered by the prior mortgagee, and the estate released by the prior mortgagee, was the estate on which the subsequent mortgagee had no lien, it being the estate of Tschudy’s wife. If the prior mortgagee, Kurtz, foreclose his mortgage on the estate of Mrs. Tschudy by sale, a court of equity considering her as a security of her husband, would substitute her to Kurtz’ equities on the estate of her husband, and thereby exclude the subsequent mortgagee. Vide 2 Story’s Eq., sec. 1373.
The orders of the court in this case, of the 2nd March 1849, and the 29th of March 1849, are reversed with costs to the appellants, and the case remanded.
ORDERS REVERSED AND CASE REMANDED.