Reigle v. Leiter , 8 Md. 405 ( 1855 )

Tuck, J.,

delivered the opinion of this court.

W e are of opinion that the order from which this appeal was taken should be affirmed, for the reasons and upon the authorities stated in the opinion of the court. According to the Maryland cases, there cannot be a reasonable doubt of the correctness of the decision. That of Doub vs. Barnes, 4 Gill, 1, is clearly in point. The cases are not precisely the same in the form in which the question is presented, but they are substantially alike, and the same principle must govern each.

The judgment creditors were brought into court, at the instance of other creditors of Hollinan, in order that the sale of his property might not be prejudiced “by the doubts and uncertainties hanging over the title, by virtue of the judgments, ft. fas. and levies;” the bill also stating, that loss might be obviated by making all the incumbrancers parties, and having a sale made under the direction of a court of equity, at the same time guarding the rights of the mortgagees and judgment creditors, “by allowing them all the priorities they had received and were entitled to out of the proceeds of sale.” To this mode of making the sale the judgment creditors assented, reserving their liens. The object then was, not to contest and ascertain whether the judgments were liens as against all or any of the parties, but to promote the advantage of all, 'by making a clear title to the purchasers. The change of the forum for the purpose of making the sale, cannot affect the rights of the parties in,ter sese. It certainly could not as against the judgment creditors as defendants, in invilwm, nor upon the ground of their assent to the proceedings, because the assent expressly reserves their liens as acquired at. law. Their rights cannot be suspended until questions of contribution or of subrogation can be adjusted; nor can they be driven to resort to other lands, yet unsold, for the benefit of junior mortgagees. 4 Gill, 22.

The objection that they have slept upon their rights to the prejudice of other creditors, does not apply to the judgment creditors any more than to the appellant. He was also an actor in this proceeding, and might at any time, as he may now, require the trustee to proceed to complete the trust. The judgment incumbrancers, reposing upon their liens on all the property, were not bound to have taken further steps, if the sales already made were sufficient to satisfy their claims. It was more properly the duty, as it was the interest, of the subsequent mortgagees, to have caused additional sales to be made for the payment of their demands.

We- may remark, in answer to a suggestion in argument, that we do not perceive any obstacle, by lapse of time,, in the way of these mortgagees, as the judgment creditors to whose rights they would be subrogated were not barred at the time of filing the bill, and such a defence could not now be interposed against the equities of those who may take their places, upon principles of substitution.

The case of Watson vs. Bane & Winters, 7 Md. Rep., 117, is different from the present, and stands unaffected by the doctrines here announced.

Order affirmed, with costs, to be paid out of the fund.