Berl v. Dulany ( 1914 )

Mr. Chief Justice Shepard

delivered the opinion of the Court:

In our opinion there was no error in dismissing the plaintiff’s bill. It is apparent that the original loan by plaintiff to Waggaman was without security or promise of security.

When plaintiff first began to demand security does not appear. The undated letter of Waggaman to plaintiff, written some time prior to December 23, 1902, shows that a mortgage had been discussed, but does not amount to a certain promise that one would be executed. The letter of December 23, 1902, shows that the idea of executing a special trust deed to secure plaintiff had been abandoned. That letter indicated the intention to place a second trust on Cleveland park for $259,000, represented by notes for $1,000 each; and makes this offer: “I will give you my personal note secured upon these as collateral, for $1,-000 each, to the amount that you desire.” This proposition was accepted by plaintiff, and he received Waggaman’s note therefor dated January 15, 1903. This note recited that nineteen notes of Maggie F. Riley, “secured by subdivided portion of Cleveland park,” were deposited with plaintiff as collateral, with full power of sale of said collateral' notes.

Subsequently, plaintiff lent Waggaman $1,000 more and received his note with another one of the $1,000 collateral notes. It would appear from the subsequent correspondence recited above, that plaintiff wanted to have his loans further secured by a speeial trust deed on the Cleveland park tract, but it appears that Waggaman declined to do this,—see letter of July 21, 19ÓI. Subsequent letters indicate that he was indulging the hope of plaintiff that he might give him a deed of trust later, but there is no certain promise to do so. There is nothing in the transactions of the parties that would create an equitable lien upon any part of Cleveland park as security for the loans of plaintiff evidenced by the two notes of Waggaman. In lieu thereof the plaintiff finally accepted the collateral notes of Maggie F. Riley as his sole security. He thus abandoned or waived any claim, if such he in fact had, to an equitable lien upon any part of Cleveland park as security for his notes. It does not appear what has become, of the twenty collateral notes of Riley, which plaintiff was entitled to sell upon default in payment of his notes. As the present ownership of those notes does not appear, and no relief is prayed on their account, it is unnecessary to inquire whether the statements in the letter of December 23, 1902, or the recitals in the note executed January 15, 1903, would create an equitable lien for their security.

' In the view that we have taken of the equitable rights of the plaintiff, it is unnecessary to consider whether there is a suffix cient description of tbe property against which the .lien is claimed, or whether there has been laches in its assertion, or what are the rights of subsequent creditors, or the effect of Waggaman’s bankruptcy.

The decree is affirmed, with costs. Affirmed.

On May 12,1914, a motion for a rehearing was denied.