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ing in one's possession, with intent to sell, | 4. MORTGAGES ($ 378*)-FORECLOSURE-COLmilk to which a foreign substance has been

LATERAL ATTACK. added, is committed by having with that in- power of sale cannot be attacked collaterally.

A mortgage foreclosure proceeding under a tent cream to which boracic acid has been

[Ed. Note.-For other cases, see Mortgages, added.” 1 Cyc. 945, note 25. In the case of Cent. Dig. $ 1140; Dec. Dig. $ 378.*] Commonwealth v. Smith, 149 Mass. 9, 205. MORTGAGES ($ 372*)— FORECLOSURE SALEN. E. 161, the court said: "The complaint

TITLE ACQUIRED. is for selling milk not of the standard quality Under Code Pub. Gen. Laws 1904, art. 66, of pure milk; that is, milk containing less 8 11, providing that a mortgage foreclosure sale that 13 per cent. of milk solids. The defend- under power of sale shall pass the title which

mortgagor, had "at the time of recording the ant had a right to sell skimmed milk, which

mortgage," a sale passes title, though at the is not of the standard quality of pure milk time of foreclosure mortgagor may have been from cans marked in a certain manner.

If without title. he sold milk not of the standard quality of Dec. Dig. § 372.* ]

(Ed. Note.–For other cases, see Mortgages, pure milk, and not sold as skimmed milk from duly-marked vessels, he would be liable 6. MORTGAGES (8 378*) — FORECLOSURE EFon this complaint.” Under a statute declar

Where a mortgage foreclosure sale was ing that milk from which the cream has been made to perfect what was deemed to be a deremoved is impure milk, and prohibiting the fective title under a deed from mortgagors or sale of impure milk, it would not be a suffi

mortgagee, the title thereby acquired by mortcient answer to the charge of violating the the mortgagors had under an agreement that the

gagee did not destroy the equity which one of statute to say that the article sold was skim- deed should be executed to mortgagee, but that med milk; so, under the sections of the Code such mortgagor should have the surplus, if any, referred to, prohibiting the sale of impure if the mortgagee should sell the premises for

more than his claim. condensed milk, that is condensed milk man

[Ed. Note. For other cases, see Mortgages, ufactured from milk from which the cream Dec. Dig. 8 378.*] has been removed, an indictment charging the 7. MORTGAGES (8 378*)- FORECLOSUBE-CONsale of impure condensed milk cannot be

CLUSIVENESS-MATTERS CONCLUDED. effectively met by the plea that the article A mortgage foreclosure proceeding under a sold was "condensed skimmed milk."

power of sale, confirmed by the court, is not res We cannot therefore accept the view earn- judicata of a subsequent bill by one of the mort

gagors against mortgagee for an accounting, unestly pressed by the learned counsel for the der an agreement to execute a deed to mortappellant, but, concurring in the conclusions gagee, but that such mortgagor should have the reached by the court below, must affirm the surplus, if any, if the premises should be sold for

more than mortgagee's claim. judgment.

[Ed. Note.-For other cases, see Mortgages, Judgment affirmed, with costs.

Dec. Dig. § 378.*]


Evidence upon a bill for an accounting, un

der an alleged agreement by mortgagors to deed FELGNER'S ADM'RS V. SLINGLUFF.

the premises to mortgagee, but that one of them SLINGLUFT V. FELGNER'S ADMÄRS. should take any balance over mortgagee's claim,

held to establish that there was such an agree(Court of Appeals of Maryland. Jan. 12, 1909.) ment. 1. MORTGAGES ($ 295*)-ACQUISITION OF PROP. Cent. Dig. $ 1132; Dec. Dig. $ 376.*]

[Ed. Note. For other cases, see Mortgages, ERTY BY MORTGAGEÉ-MERGER.

Where, prior to a deed by mortgagors to 9. MORTGAGES ($ 376*) — ACCOUNTING – Evimortgagee, the mortgage had been assigned to a DENCE-SUFFICIENCY. third person, there was no merger of the mort- Evidence held not to show a mistake in the gage, since for that there must be a union of amount of the mortgage. titles in the same person at the same time. [Ed. Note.-For other cases, see Mortgages,

[Ed. Note. For other cases, see Mortgages, Dec. Dig. $ 376.*] Cent. Dig. § 829; Dec. Dig. § 295.*]


Evidence held not to show that mortgagor Though the equity of redemption is acquir- was entitled to a certain credit. ed by the mortgagee, the mortgage is not there- [Ed. Note.-For other cases, see Mortgages, by necessarily merged, but it depends on mort- Dec. Dig. § 376.*] gagee's intent; and, where it is for his benefit to do so, the presumption is that he intended to 11. MORTGAGES (8 376*)-ACCOUNTING. keep the mortgage alive.

The mortgagor was properly, not charged

with the costs of a mortgage foreclosure sale of [Ed. Note.-For other cases, see Mortgages, the premises, where there was no necessity for Cent. Dig. § 819; Dec. Dig. § 295.*]

that proceeding, and under the agreement it 3. MORTGAGES ($ 378*) — CONCLUSIVENESS

should not have been resorted to without conMORTGAGE FORECLOSURE PROCEEDINGS.

sulting mortgagors. The doctrine of res judicata applies to a

[Ed. Note. For other cases, see Mortgages, mortgage foreclosure proceeding under a power Cent. Dig. $ 1132; Dec. Dig. § 376.*] of sale as it does to other judicial proceedings. 12. MORTGAGES (8 376*)-ACCOUNTING.

[Ed. Note.-For other cases, see Mortgages, The mortgagor. should not be charged with Dec. Dig. $ 378.*]

the expenses connected with a supposed defect


in the title, where she was in no wise responsi- BOYD, C. J. Mrs. Ann M. Slingluff filed a ble therefor, and was not consulted about the bill in equity against Edward L. Felgner for expenses. [Ed. Note. For other cases, see Mortgages,

an accounting for all sums of money received Dec. Dig. § 376.*]

by him from a property previously owned by 13. INTEREST (8 17*) — INTEREST UPON INTER-, her, and prayed for a discovery and a de

cree in personam against him for such amount Interest upon mortgage interest notes can- as may be found to be due her. The lower not be allowed, where mortgagee proceeded court decreed that he pay her the sum of throughout upon the principle that because of default in an interest note the entire mortgage $3,802.03 and costs, and, Mr. Felgner having debt had become due.

died, his administrators were made parties (Ed. Note.-For other cases, see Interest, defendant, and entered an appeal from that Dec. Dig. § 17.*]

decree. A cross-appeal was entered by Mrs. 14. INTEREST (8 17*)-INTEREST UPON INTER- Slingluft. On the 26th of September, 1899, EST.

Horace Slingluff, husband of the plaintiff, Interest upon mortgage interest notes cannot be allowed, where there was not only no un

gave a mortgage, in which she joined, to Mr. derstanding that such interest should be charg- Felgner for $22,000, on a property in Baltied, but the contrary is to be inferred.

more county called “Upton.” Mr. Slingluff (Ed. Note.-For other cases, see Interest, afterwards took the benefit of the bankrupt Dec. Dig. $ 17.*]

law, and on March 27, 1900, the mortgage 15. MORTGAGES ( 376*)-ACCOUNTING.

was foreclosed, and the property purchased Upon a bill for an accounting, under an agreement by mortgagors to deed the premises by Mr. Felgner. At that time large improve to mortgagee, but that one of the mortgagors ments which Mr. Slingluff had begun were should have the surplus, if any, over mortgagee's incomplete, and the dwelling house was conclaim, an item for advertising a sale, which was

Mr. Felgner withdrawn at mortgagor's request, should have sequently in bad condition. been allowed mortgagee.

agreed with Mrs. Slingluff that he would [Ed. Note.-For other cases, see Mortgages, complete the repairs which were in course of Dec. Dig. § 376.*]

construction, keep an account of the moneys 16. MORTGAGES ($ 376*)-ACCOUNTING.

expended thereon, and, when completed, A charge for a watchman employed for would convey the property to her, who with the protection of the premises, or to prevent the her husband was to give Mr. Felgner a note insurance from becoming invalid, should be allowed.

secured by mortgage upon said property. [Ed. Note.--For other cases, see Mortgages. The parties do not materially differ as to the Dec. Dig. $ 376.*]

terms of that agreement; the principal dif17. PLEDGES ($ 30*)-LIABILITY OF PLEDGEE. ference being that the plaintiff claims it was

A mortgagee to whom an endowment pol. made before the foreclosure sale of March 27, icy was assigned as additional security should 1900, and the defendant that it was made be charged with interest on the amount receive ed on the policy, where he has unnecessarily shortly afterwards. On May 1, 1901, a deed delayed in its collection.

was executed for the property to Mrs. Sling. [Ed. Note.-For other cases, see Pledges, Dec. luff, and Mr. and Mrs. Slingluff gave Mr. Dig. § 30.*]

Felgner a mortgage of that date to secure 18. MORTGAGES (8 376*)—ACCOUNTING-INTER-a note for $30.495, payable three years after

date and six interest notes for $913.85 each; On a bill for an accounting, under an agreement by mortgagors to deed the premises to

one being payable every six months after mortgagee, but that one of the mortgagors date. The principal sum included the origishould have the surplus, if any, over mortgagee's nal mortgage of $22,000, the repairs made by claim, interest on the balance found due mort- Mr. Felgner amounting to $1,896.74, the costs gagor should be allowed from the date of an account rendered by mortgagee in response to a

of the foreclosure proceedings $687.40, inrequest therefor by mortgagor.

cluding a fee of $500 to Mr. Dillehunt, who (Ed. Note.-For other cases, see Mortgages, was the attorney who made the sale, and Dec. Dig. § 376.*]

$2,367.90 interest to May 1, 1901, which, toCross-Appeals from Circuit Court of Balti-gether with an adjustment of taxes, $17.97,

amounted to $30,495.01. We do not undermore City; Thos. Ireland Elliott, Judge.

Bill by Ann M. Slingluff against Edward stand the correctness of those sums to be L. Felgner. Decree for complaivant, and, questioned, but the plaintiff claims that there

should have been a credit of $1,400 for rent Felgner baving died, his administrators appeal, and complainant enters a cross-appeal. received from David Hutzler, which will be Cause remanded for further proceedings, referred to later. As additional security, Mr. without reversing or affirining.

and Mrs. Slingluff agreed to assign to Mr. Argued before BOYD, C. J., and BRIS- Felgner an endowment policy of insurance COE, PEARCE, SCHMUCKER, BURKE, issued on the life of Horace Slingluff for the



sum of $5,000, which at the time, by reason


of certain accumulations, had a cash value of

something over $7,000. The Slingluffs also Vernon Cook, for appellants. J. Kemp agreed to furnish the dwelling house, to proBartlett and William 'L. Marbury, for appel. vide a gardener, and do what they could tolee.

wards securing a good rental. The object of


this was to get the property in a condition | ceived, the insurance money, and rents more that would enable them to dispose of it to the than paid Mr. Felgner, who she alleges was best advantage, in order to pay off the mort-compelled to give her the surplus under the gage and have some surplus for the benefit agreement. The defendant denies there was of Mrs. Slingluff, which she claims it was any surplus, but contends that if there was, agreed she should have. The insurance poli- the foreclosure proceedings preclude any recy was assigned to Mr. Felgner, but the trus-covery. The first question, therefore, to be tees in bankruptcy of Mr. Slingluff made a determined by us is the effect of those prodemand for it, and after some litigation the ceedings. matter was finally compromised by dividing 1. We cannot agree with the counsel for the value of the policy, which resulted in Mr. Mrs. Slingluff that there was a merger by virFelgner receiving $3,574.15. Mr. Slingluff, tue of the deed of February 24, 1903. A suffiwho represented his wife, and Mr. Dillehunt, cient answer to that contention is that before who represented Mr. Felgner, who was his the deed was made, to wit, on October 31, father-in-law, practically agree as to what 1902, the mortgage had been assigned to Mr. that agreement was, excepting Mr. Slingluff Dillehunt. While he undoubtedly took the claims that the rents for 1900 were to go to assignment subject to all equities existing Mr. Felgner, while Mr. Dillehunt contends between the mortgagor and mortgagee, the that the payment of rents to him was to be legal title was transferred to him, and hence gin with those of 1901. The rents were de- there was no merger by reason of the deed rived from the property during the summer to Mr. Felgner. The general rule is that "in season, Mr. Slingluff rented the property to order for the mortgage to be extinguished David Hutzler for the summer of 1900 at by the union of titles of the mortgagor and $1,400, to Louis Hamburger for the summer the mortgagee, such titles must unite in the of 1901 at $1,400, and to Levi Greif for the same person at one and the same time." 20 summer of 1902 at $1,200, and Mr. and Mrs. Am. & Eng. Ency. of Law, 1068. Even when Slingluff expended money and time with a a mortgagee acquires the equity of redempview to making the property attractive to tion in his own name, it does not necessarily purchasers.

follow that the mortgage becomes merged and There were a number of interviews be- extinguished, but it depends upon the intentween Mr. Slingluff and Mr. Dillehunt, and tion of the mortgagee; and, when it is for considerable correspondence passed between his benefit to do so, the presumption is that them, some of which will be hereafter re he intended to keep the mortgage alive. Id., ferred to; the letter of October 11, 1902, 1061; Poke v. Reynolds, 31 Md. 106. bearing more particularly on the agreement 2. But notwithstanding there was no merthat Mrs. Slingluff was to have the surplus, ger, and assuming for the present that there over and above the claims and expenses of was an agreement that the surplus derived Mr. Felgner, out of a sale of the property. from the sale of the property was to go to On February 24, 1903, à deed was executed Mrs. Slingluff, which we will consider later, by the Slingluffs to Mr. Felgner for the was the effect of the foreclosure proceedings property embraced in the mortgage, which such as the defendant contends for? It can. was duly delivered to Mr. Dillehunt, but he not be doubted that the doctrine of res adput it in his safe and never recorded it. On judicata applies to a mortgage foreclosure April 17, 1903, Mr. Dillehunt, as assignee of proceeding, such as this, as it does to other the mortgage, reported a sale of the property judicial proceedings, and of course the prounder the power of sale to the circuit court ceedings taken in reference to the foreclofor Baltimore county, in which report he sure of the mortgage cannot be attacked states that he sold the property on April 8, collaterally. Again we must differ from the 1903, to Mr. Felgner for $24,000. That sale position taken by the counsel for the plaintiff was in due course ratified by the court, an that, inasmuch as Mrs. Slingluff had no title auditor's report was filed and ratified, and at the time of the foreclosure, the sale passthe deed was made by Mr. Dillehunt, as- ed no title. The statute expressly provides signee, to Mr. Felgner on May 13, 1903. Both that "all such sales, when confirmed by the Mr. and Mrs. Slingluff deny any knowledge court and the purchase money is paid, shall of that foreclosure sale until the matters con- pass all the title which the mortgagor had nected with this suit were placed in the in the said mortgaged premises at the time hands of Mr. Bartlett, who, they allege, first of the recording of the mortgage." Section told them of it, and they claim that they 11, art. 66, Code Pub. Gen. Laws 1904. If supposed the deed which they executed had that were not so, and it only passed the title passed the title to Mr. Felgner, subject to which the mortgagor had at the time of the the agreement which they say then existed. foreclosure, the mortgagor could deprive the Before this bill was filed Mr. Felgner had sold mortgagee of the security by selling the proppart of the property to Charles D. Fitzgerald erty. The case of Queen City Bldg. Assin for $27,500 (as we understand the amount), v. Price, 53 Md. 397, cited by the plaintiff, and the balance to the Western Maryland involved an altogether different question. Railroad Company for $5,812.50, and the There it was held that the supposed power the subsequent proceedings were void. It | April 4, 1902, $911.51 was paid, for interest. was there said that “the mortgage stood as On October 11, 1902, Mr. Dillehunt wrote a if no power of sale had been inserted in it,” letter to Mr. Slingluff, in which he said: "Inbut in this case there is no question about closed please find deed to be executed by the validity of the power of sale; and, if it yourself and wife under the agreement. In could no longer be exercised by reason of the consideration of Mr. Felgner's forbearance deed, the objection should have been made to foreclose the mortgage on Upton you were in the foreclosure case, or if the plaintiff was to give him an absolute deed for the propkept in ignorance of it, by reason of the con- erty, he agreeing on his part to allow you to duct of the mortgagee, a bill of review, or sell the property before March 1st next and some appropriate proceeding in that court, pay him his claim and expenses, you to take was the proper remedy, if it be necessary to any balance left. After March 1st next, he have that sale set aside.

will be privileged to sell the property at his 3. But is that necessary under the circum- own price without any recourse to him by stances of this case? The plaintiff is not you or your wife or any one else.” That contending that title to the property did not deed was not executed for some reason, and pass to Mr. Felgner. On the contrary, she was lost, but another one was sent later, contends that it had already passed by the which was the one executed February 24, deed. Mr. Dillebunt thus explains in his tes- 1903. Mr. Dillehunt was asked wbether that timony why the foreclosure proceedings were deed was drawn in accordance with the lettaken: “After having gotten that deed I was ter of October 11th, and replied that it was afraid to record it because of the relation- not. "It was a new agreement, with the ship between the mortgagor and mortgagee— same contents in it,” “really a renewal of I was afraid that somebody would say that the old agreement, that is what it was.” they made it under duress, or something of And he admitted on cross-examination that that sort-I was a little fearful of it, and I the Slingluffs did not agree on February 24, did not record the deed, and then followed 1903, that all their rights were to expire on those foreclosure proceedings.” He also said March 1st. he thought at first of baving the deed made It, therefore, appears from Mr. Dillehunt's to him, "so in case there was any trouble, own testimony, and the letters, that the obthe mortgage then could be foreclosed,” butject in making the deed was to avoid a forehe changed his mind, and thought it looked closure, and that the foreclosure proceedings better to have it made to Mr. Felgner. The were taken in order that the title might be object of the foreclosure proceedings is thus perfected, which Mr. Dillehunt thought clearly shown to have been simply to acquire doubtful under the deed alone, and not for the title in a way that Mr. Dillehunt thought the purpose of getting rid of whatever rights was free from question, but he does not say Mrs. Slingluff had acquired under the agreethat he ever notified either Mr. or Mrs. Sling- ment. Indeed no other conclusion could be luff of those proceedings, or of his intention reached without implying that Mr. Dillehunt to so proceed, and both of them swore that was guilty of fraud, for he does not pretend they were not aware of them. He never told that he informed Mr. and Mrs. Slingluff that them that he had not placed the deed on rec- he would not make use of the deed, or that ord, and Mr. Slingluff testified that when he he had not recorded it. The sale was made heard of the sales made by Mr. Felgner, he under proceedings which had been begun on supposed they were made under the deed. October 31, 1902—nearly four months before It is difficult to believe that Mr. and Mrs. the deed of February 24, 1903—and must Slingluff would have executed the deed on have been advertised in about three weeks February 24, 1903, if they had supposed, or after the deed was made, as the report if Mr. Dillehunt had then told them, that he shows it was advertised for more than 20 would advertise the property for sale under days before the day of sale, which was April the mortgage in less than a month, which he 8, 1903. It cannot be pretended that there is did. In Mr. Slingluff's letter of March 1, anything in the record to suggest, much less 1902, he appealed to Mr. Dillehunt not to prove, any agreement or arrangement beadvertise the property as he was then think tween February 24th and the advertisement ing of doing. He said that they would "be or sale of the property, by which such rights mortified and humbled in the eyes of the as Mrs. Slingluff had in the surplus, by vircommunity, and all our effort set at naught, tue of the agreement, were surrendered, or and my business injured by having the place were intended to be surrendered, and it is advertised for sale at foreclosure proceed- difficult to imagine a more effectual way of ings." He offered to make a deed which Mr. misleading the Slingluffs than was adopted, Dillehunt was to hold until April 1st, and if if such effect must be given the foreclosure they in the meantime paid the interest due, proceedings as is now claimed for them. In he was to return the deed, and if the interest justice to Mr. Dillehunt we must say that was not paid by that time, Mr. Dillehunt his testimony shows that no such effect was was to put the deed on record, and they were intended, but the sale was made, according to give quiet and peaceful possession of the to him, to perfect what he deemed would be so, we must hold that the title acquired by have been without service on her, and then Mr. Felgner under the foreclosure sale was a court of equity would not have passed a not intended to, and did not, destroy the personal decree against her, if she had esequity, if any, which Mrs. Slingluff acquired tablished the claim she now makes. It would under the agreement, and which resulted in be a fraud on her which a court of equity the execution of the deed. If the Slingluffs would not assist in, if satisfied that her were not aware of the ale, they could not agreement was suc as she now claims. Aftbe expected or required, under the circum- er discussing the subject, it is said in Story's stances, to object to it, and if they did know Equity Pleading, $ 783a: “But a former adof it, they could not be supposed to believe judication, even in a court of equity, will not or know that it was intended thereby to be a bar to a subsequent bill, unless the case give any greater effect to it than Mr. Dille- made by the latter and the equity are subhunt admits, namely, to perfect what he stantially the same. It is said the grounds thought was a defective title. They certain of the latter suit must be substantially idenly did not have any reason to believe that tical with those of the former.” That being such equity as they acquired when or before so, as it undoubtedly is, and the equity the deed was given was intended thereby to claimed in this case being substantially difbe destroyed. We cannot therefore hesitate ferent, and by no means identical from that to hold that under the peculiar circumstances determined by the ex parte proceedings in of this case the plaintiff is not precluded by the circuit court for Baltimore county, we the ratification of the sale from obtaining are of opinion that they do not preclude the the relief sought in this case.

plaintiff from asserting her claim under this 4. The ratification of the audit at first bill. seemed to present more difficulty, in so far As it was not raised at the argument, we as some of the items involved are concerned. have not deemed it necessary to discuss the But on further consideration we have no question whether the defense of res adjudi. doubt about them. If Mrs. Slingluff had cata was properly presented in this case, ineither actual or constructive notice of the asmuch as it was not made in the pleadings, foreclosure proceedings, as may be conceded, or the further question whether section 36, it is clear that if she is right in her conten- art. 5, of Code Pub. Gen. Laws 1904, would tion as to the agreement, it could not have require us to consider that defense, although been the intention of the parties that after not raised below. We would only add that it she and her husband had executed and de- is not altogether free from doubt, as the evilivered the deed, with the understanding dence which might be used for that defense that she should have the surplus, if any, if was perhaps admissible for other purposes, the property could be sold for more than the and hence we say it is at least doubtful whethclaim of Mr. Felgner, she was to be further er section 36, art. 5, would apply. That such subjected to large expenses in perfecting the defenses should be raised in equity by the title, especially without any notice to her of pleadings is the general rule. 9 Ency. of Pl. the necessity or desirability of proceedings & Pr. 616, and notes; Phelps on Jurid. Eq. Š to accomplish that end. She not only did 63; Barroll's Chy. Pr. 129; Wagoner v. Wag. not contest the proceedings, but if she had oner, 76 Md. 311, 25 Atl. 338. But we will actually known of them she might very well base our decision on the grounds stated above. have concluded that they did not affect her. 5. We come now to the question whether She was not claiming the equity of redemp- there was such an agreement as the plaintiff tion which the law gave her as mortgagor. claims. It cannot be doubted that there was On the contrary she had surrendered it, as at one time. After Mr. Slingluff failed, he she and her husband believed then, and do and his wife on the one hand, and Mr. Dillenot deny now. The sale under the power hunt, representing Mr. Felgner, on the other was to pass the interest she bad when the hand, were endeavoring to arrange so that mortgage was recorded, and not such as she Mr. Felgner would not lose as mortgagee, and acquired afterwards from the mortgagee. If Mrs. Slingluff would eventually get something she had filed exceptions to the sale, and the out of the property. In their effort to accomcourt was of the opinion that Mr. Dillehunt's plish that, she, together with her husband, be fears were well founded, it might have very came responsible for a mortgage of $30,493, properly overruled the exceptions, on the and assigned the policy of insurance which ground that Mrs. Slingluff could not be finan- was then supposed to be worth over $7,000. cially injured by the proceeding, if her con- Mr. and Mrs. Slingluff apparently worked tention as to the agreement was right. And earnestly to pay Mr. Felgner the interest, and after the sale was ratified the assignee of to save something for themselves. Mr. Dille.. the mortgage might very well have claimed hunt was evidently anxious, and feared that the right to have an audit made, so as to his father-in-law might not recover the money have the accounts between him and the real | which he had loaned for him, and was also owner of the mortgage stated. There was no kindly disposed towards the Slingluffs. The attempt to secure a decree in personam mortgage was dated May 1, 1901, and the first against Mrs. Slingluff for the balance as interest was due November 1, 1901, and by that

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