Gardenville Permanent Loan Ass'n v. Walker

52 Md. 452, 1879 Md. LEXIS 122

• Court: Court of Appeals of Maryland
• Decided: July 16, 1879
• Status: Published

Opinion

Bartol, C. J.,

delivered the opinion of the Court.

Since the decision of Willett and Wife vs. Carroll, 13 Md., 459, and Donnelly vs. Edelin, 40 Md., 117, there can he no doubt that by the will of John Frederick Walker, deceased, the farm or parcel of land by him devised in fee to his son, John Frederick Walker, Jr., was charged with the burden of a reasonable support and maintenance of the appellee, the widow of the testator, during her life; and the appellant, having purchased the land, took the same subject to this charge.

A careful reading of the testimony in the record has brought us to the same conclusion reached by the Circuit Court, that the appellee was justified in leaving the house of the defendant, Walker, and seeking a home elsewhere, for the reason that he failed to provide her with reasonable and necessary support and maintenance, while she remained a member of his family, such as she was entitled to enjoy under the will. She is entitled to maintain her bill for the enforcement of the charge for her reasonable maintenance and support, against the land in the hands of the appellant.

We are next to determine the amount to which she is entitled.

It appears in evidence that at the death of the testator, John E. Walker, Sr., the land devised to his son was encumbered by a mortgage executed by himself and wife in favor of Otto Gunther, for one thousand dollars. This mortgage debt was paid by the devisee, John E. Walker, Jr., and was released by Gunther’s administratrix on the 16th day of February, 1872, and it further appears by the testimony, that the money borrowed from the appellant, and for which the property was mortgaged to the latter, was used in paying Gunther’s mortgage; and the appellant contends that it is entitled, by subrogation, to the benefit of the mortgage lien held by Gunther, for the purpose of diminishing the charge of the appellee against the land.

If the appellant had taken an assignment of Gunther’s mortgage, this claim on its part would be well founded; but the incumbrance upon the property having been paid by the devisee, and having been released, the same cannot inure to the benefit of the appellant, a stranger to that transaction. Under these circumstances, the principle of subrogation does not apply. Woollen vs. Hillen, 9 Gill, 185; Alderson vs. Ames & Day, 6 Md., 52; Neidig vs. Whiteford, 29 Md., 178; Heuisler vs. Nickum, 38 Md., 270.

The appellant, having afterwards purchased the property took it subject to the charge under the will in favor of the appellee, unaffected by the lien of Gunther’s mortgage, which had been extinguished.

It appears from the evidence that the gross rental value of the property is $175 per annum, and the Circuit Court allowed to the appellee the whole of this sum, or $14.58^ per month, and decreed the payment of the same and the arrearages at that rate.

In this we think there was error. The taxes and necessary repairs of the property ought first to be paid out of the rent, and the allowance to the appellee, even if it embraced the whole rental value of the land, would have to be abated to that extent. There is much conflict in the testimony upon the question of what would be a just and reasonable allowance for the support and maintenance of the appellee.

(Decided 16th July, 1879.)

Upon a consideration of the whole evidence, we think one hundred and fifty dollars per annum, or $12.50 per month, looking to the net rental value of the land, is a fair, just and reasonable allowance, and that the arrearages ought to be estimated on that basis.

To the end that the decree of the Circuit Court may be modified in conformity to these views, the same will be reversed and the cause remanded; each party to pay one-half the costs of this appeal.

Reversed and remanded.