Gelston v. Thompson , 29 Md. 595 ( 1868 )

Robinson, J.,

delivered the opinion of the court.

The bill in this cause was filed by an assignee of the mortgagor, against the assignees of the mortgagee, claiming the equity of redemption and an account for rents and profits. The appellants, in their answer, claim possession under a Sheriff’s sale, deny the jurisdiction of a Court of Equity to grant relief in the premises, and rely upon limitations and lapse of time, as a bar to any accountability for rents and profits. The Sheriff’s sale under which the appellants’ claim was made, by virtue of a writ of levari facias, issued out of the Court of Common Pleas for Baltimore City, on a judgment to enforce a mechanics’ lien.

In Miller v. Barroll, 14 Md. 173, it was decided that the Court of Common Pleas had no jurisdiction in proceedings to enforce a mechanics’ lien. The judgment being therefore “ coram non judice,” the sale by the Sheriff was inoperative and void.

But it is claimed that the appellants being in possession under color of title, the remedy of the appellees was by an action at law. Hipp v. Babin, 19 *How. 271, and other authorities relied on by the counsel for the appellants, do not sustain this position. They announce the well established principle, that a Court of Equity will not grant relief, where a party has a plain, adequate and complete remedy at law. But this case does not come within this general rule. The legal estate was in the assignees of the mortgagee, and a Court of Equity, was the proper forum to administer relief to a mortgagor or his assignee, claiming the equity of redemption and an account of rents and profits. In Quarrell v. Beckford, 1 Madd. Ch. 151, the heir-at-law of- the mortgagee was in possession under color of title by virtue of a decree of foreclosure, but it was held that the assignees of the mortgagor, not made parties to the bill, -were entitled to the equity of redemption and also to an account of rents and profits. It would be difficult to distinguish in principle this case from the one above referred to. But it was contended, that admitting the right of the appellee to redeem, he is barred by lapse of time and limitations from recovering beyond three years from the filing of the bill. Such may be the law in cases of concurrent jurisdiction at law and in equity, the rule being in such cases, that limitations may be relied on with the same effect in one court as in the other. Dugan v. Gittings, 3 Gill, 138. But in Kane v. Bloodgood, 7 John. Ch. 121, Chancellor Kent says : “I understand this proposition to mean, that if a party has a legal title and a legal right of action, and instead of bringing his action of account, or detinue, or case for money had and received at law, files his bill for an account, the same period of time that would bar at law will bar in equity.” In this case, the legal estate being in the appellants, the assignee of the mortgagor could not have recovered the rents and profits by an action at law; and it was only in a Court of Equity which recognizes rents and profits as incidents de jure of the right of redemption, that he could have obtained relief. It was also urged that the auditor erred in not allowing the appellants the purchase money paid at Sheriff’s sale, and the debt due by the *mortgagor to one of the assignees of the mortgagee. It is true as between mortgagor and mortgagee upon a bill by the former to redeem, he must not only pay the mortgage debt, but all other debts due from him to the mortgagee. Lee v. Stone, 5 G. & J. 1. But this equity does not extend to an assignee of the mortgagor. On the contrary, an assignee for a valuable consideration, claiming the equity of redemption, can only be charged with the mortgage debt. 1 Powell on Mort. 360.

The commissions claimed for receiving the rents were properly refused. As a general rule commissions are not allowed to a, mortgagee for receiving rents, and if there be exceptions to this rule, as for instance where the mortgagor is obliged to employ a bailiff to collect them, it is a sufficient answer to say that this case does not come within the exception. Courts of Equity guard with jealous care the rights of mortgagors, and will not permit mortgagees to make a profit out of the estate.

For these reasons the decree must be affirmed.

Decree affirmed, with costs.