Hummer v. Schott

21 Md. 307, 1864 Md. LEXIS 112

• Court: Court of Appeals of Maryland
• Decided: April 15, 1864
• Status: Published

Opinion

Bowie, C. J.,

delivered, the opinion of this Court:

The appellee filed an original and supplemental hill against the appellants, in the Superior Court of Baltimore City, to enforce a vendor’s lien, on a certain house and lot sold by the appellee to the appellant Hummer, and mortgaged by the latter to the Germania Building Association. The hills allege the sale of the property on the 6th of October 1859, to the appellant Hammer, for the sum of $1200, $400 of which was paid in hand, the execution of a note by the purchaser, for the residue of the purchase money, with the endorsement of William H. Mayer thereon, the mortgage of the property by Hummer to the Germania Association, and the non-payment of the note: and prays a decree for the sale of the property to pay the purchase money.

The answer of the Germania Building Association admits the mortgage, excepts to the sufficiency of the allegations in the bills, and professing ignorance of the other facts, demands proof. The answer of the appellant Hummer, after admitting the sale and execution of the note, says, that Schott was to receive “the cash payment, and the balance as soon as he was able to raise it, by mortgaging the property to a building association; that accordingly Schott gave to him a clear deed of said property, so that he could raise the balance of the purchase money by mortgaging the same and abandon all claim upon said property for said balance, and agreed to take in lieu thereof the note of the appellant Hummer, secured by his father-in-law, William H. Mayer, which was accordingly given him. A special replication was filed to these answers and testimony taken. The learned judge w'ho decided this case below, says:- “The complainant is to be considered as having made a conditional barter of the lien, to which he was entitled as the vendor of the estate in question, and for which he gave a deed to Henry Hummer; that is, the complainant consented to give the vendee a deed for the property, •unencumbered by any equitablelien, provided Hummer gave his promissory note for the- unpaid purchase money; that the note was to be endorsedby William H. Mayer, his father-in-law; this has been done, and Mayer having placed his name on the back of the note, ought perhaps to be treated •as an original promisor or guarantor of tho note. It was not that kind of security for which the complainant'had stipulated and which he had the right to expect, a note of this description not having been furnished, the vendee cannot stand upon the position that the lien has been relinquished.” ’

We think the evidence sustains the allegations of the defendant Hummer’s answer, that the agreement of sale was, that the appellee should receive the cash payment and the balance as soon as he could raise it from the Building Association by mortgage. To enable the appellant Hummer to do which the appellee agreed to and did convey the property, taking in lieu of his lien the note of the appellant with William H. Mayer as surety or endorser.

Whether Mayer’s relation to the note was that of endorsor, co-promisor or guarantor, is in our judgment immaterial. The lien was express waived, and independent collateral security accepted instead. The right of the vendor to pursue the land under such circumstances is extinguished. 1 Mason Rep., 191. 4 Kent’s Com., 153. 4 Wheaton, 291.

(Decided April 15th, 1864.)

For these reasons the decree below will be reversed and bill dismissed with costs.

Decree reversed and bill dismissed with costs.