Johns v. Reardon , 11 Md. 465 ( 1857 )

Tuck, J.,

delivered the opinion of this court.

The property of Mrs. Reardon, conveyed to Johns, was not her separate estate, which she could bind in equity, but her estate at law, of which she could not be divested, except in the mode prescribed by our acts of Assembly, to pass the real estate of a feme covert. Chaney vs. Tipton, 3 Gill, 327. As that deed was not acknowledged according to law, it was wholly inoperative as to her, and must be dealt with as if she had not been a party to it; and then the parties stand in this predicament, Johns held a mortgage of the property as if executed by James Reardon alone, and Scott a mortgage on the same property, executed in due form of law by Reardon and wife; this latter deed, according to the previous decision in this case, having priority over the other. In this aspect, Mrs. Reardon stands as surety to Scott, under a mortgage of her property, for a debt of her husband, but she never made a valid deed binding her property for the payment of his debt to Johns. The proceeds of sale of both estates being in court, and Scott’s priority acknowledged, the appellant claims payment of his claim out of the residue, as far as it will go, while Mrs. Reardon insists, that he has no right which a court of equity will sanction as against her.

The argument on the part of the appellant, that Mrs. Rear-don having executed the mortgage to Scott with knowledge of the deed to Johns for the same property, must be bound as a creditor or incumbrancer with notice of a prior equity, would, if allowed, defeat the object and policy of the law in relation to the estates of married women, by treating them sui juris. The Legislature has provided how they may dispose of their real estates, and the court has said they can be affected in no other mode. 3 Gill, 327.

It is a familiar principle, that “where there is a lien on two different parcels of land, and a junior lien on one of these parcels only, and the party holding the elder claim elects to have his whole demand out of the land bound by the lien of the junior creditor, the latter may either have the prior creditor thrown upon the other fund, or have the prior lien assigned to him, and receive all the aid it can afford him.” Watson vs. Bane, 7 Md. Rep., 117. But that rule does not apply where there are two mortgagors of distinct estates — one being surety for the other — for the payment of the same debt, and a subsequent mortgagee has a lien only on the estate of the principal in the first debt. This was decided in Woollen vs. Hillen, 9 Gill, 185, which case appears to be applicable to the present, if we consider Scott as the prior incumbrancer of both estates, and Johns as mortgagee of Reardon’s property only. It was the equity of Mrs. Reardon, as of any other surety, to have her principal’s estate applied, first to the payment of that debt for which her’s stood as security, before the subsequent mortgagee of his estate could come upon the fund. To decide otherwise, would be making the appellee pay a debt of her husband, for which her property was never bound. If Rear-don had mortgaged two farms to Scott, and one of them, after-wards, to Johns, the principle invoked in behalf of the appellaut, would have been applicable; but, as this ease appears upon the record, he can derive no benefit from it.

With our view of this point, it is unnecessary to decide the others presented on the part of the appellee.

Order affirmed, with costs.