Alderson v. Ames , 6 Md. 52 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

This is an appeal from a proforma order of the circuit court for Harford county, sitting in equity.

It appears' that Ames purchased a lot of land from one Harlan, and took from him a bond of conveyance. He after-wards, and before'payment of any part of the purchase money, mortgaged the land to the appellant, and in the mortgage assigned the bond of conveyance to him. This mortgage was recorded on the 1st October 1845. Harlan, subsequently to this, executed' a deed to Ames, who, on the same day, mortgaged the land to Day to secure the sum of $503, recited in the mortgage as due “after a fair and equitable settlement of accounts” between the parties. It also appears by the parol proof, that part of this debt was for cash' advanced by Day to Ames to'pay for the land. The bill was filed by the appellant to foreclose his mortgage, and the question to be determined is, which of these' mortgages is to be preferred in distributing the proceeds'of sale, there not being enough! to satisfy both?

We are of opinion that Ames had an interest in the land Which he could convey by way of mortgage, and that the recorded mortgage was notice of that incumbrance, subject to the vendor’s lien for the' unpaid purchase money. The objection that this was only an equitable interest cannot avail. Where there are two or more'mortgages of the same land; all except the first must necessarily be of mere equitable estates, and it cannot be doubted that a debtor may give'a mortgage-of his equity of redemption.- Why, then; may not a vendee assign, by way of mortgage;-his interest in'the land, subject' to the vendor’s lien?' If the property rises' in' value, or is improved, as was'the case here, the purchaser has an interest in the excess over the original cost, even if the vendor should resort to the land for satisfaction. And if the purchase money be discharged by the debtor, his whole interest in the land will stand as security for the mortgage debt.

But, then, it is said'tbht Day should be preferred because his money went to discharge the land from the vendor’s lien. If this view could be made good to any extent it could not avail beyond the amount so applied. He does not claim as assignee of the vendor’s lien. Harlan says, in his proof, that he never made any assignment of his claim for the purchase money. Day stands upon his mortgage, and that declares in terms that it was for a debt as between himself and Ames, without reference to the vendor’s lien or the purchase money for this land, even if such recitals could affect a stranger. 7 Gill, 362. Can he now deny the recitals in that instrument, or show why he advanced the money, and how it was applied, for the purpose of giving himself prioiity over a recorded mortgage? We think not. “Strangers to an instrument, when authorized to impeach or contradict it, may offer parol testimony for that purpose; and so a grantor may, in a controversy with the grantee, if he charges the same to have been obtained by fraud or mistake. But the parties to a written instrument are not permitted, in controversies with strángers, to insist that it does not express what it was intended to express.” Henderson vs. Mayhew, 2 Gill, 409. In the case of Clabaugh vs. Byerly, 7 Gill, 354, an attempt was made by a junior mortgagee to obtain a preference by showing that his money, covered by the mortgage, was applied in payment of judgments against the debtor, and that he should be regarded as assignee of the judgments. Here Day seeks to be treated as assignee of the vendor’s lien. But the court in that case held, that if such was the design the judgments' should not have been paid; that he should have dealt, riot with the debtor, but with his creditor, and taken assignments of the judgments. \\ hen once paid the lien was gone. So here Day treated with Ames, and not with Harlan. If, instead of letting Ames pay for the land and taking his deed, he had become the assignee of the lien, the case would have been different. There is no distinction in principle between this case and Wollen vs. Hillen, 9 Gill, 185, where the court decided that the release of a senior mortgage let in a junior incumbrance on the same property, although it was proved that no money was paid, but another mortgage was executed simultaneously with the release as the consideration therefor.The-release-there- discharged the land from the incumbrance,as the payment of the purchase money by Ames, no matter how he- obtained the money, satisfied the vendor’s lien, and let in the- mortgage held by the appellant. The court below should have rejected the auditor’s account No. 4, and affirmed No. 3, allowing the complainant’s claim in full. To this end-the order must be reversed and the cause remanded.

Order reversed and cause remanded.-