Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[ocr errors]

.

up by the orphans' court and sent to a court had been in the court of law for nearly two
of law for trial neither side to the contest years and at the same moment file another
has control of them, embody propositions caveat he might by a capricious exercise of
conducive to the orderly and efficient ad that right indefinitely postpone the adminis-
ministration of justice which apply with tration of the estate to the great inconvenience
special propriety to the regulation of pro and injury of other persons interested there
ceedings founded on caveats to wills under in who would be without remedy. Such per-
our testamentary system. Although issues sons, not being parties to the proceedings.
framed on caveats are triable in courts of would not be entitled to costs against the
law, their trial differs from the ordinary appellee, and would not even receive that
action at law between opposing suitors, in compensation which, though often meager in
that it is in the nature of a proceeding in fact, has in a legal sense been held to be
rem, and each side bears a part of the bur adequate for the inconvenience of double
den of proof. Cecil v. Cecil, 19 Md. 80, 81 litigation.
Am. Dec. 626; Levy V. Levy, 28 Md. 31. At the hearing in this court the appellee
Furthermore, other persons than the parties insisted that under the sixteenth rule of the
to the proceeding, such as creditors, heirs court of common pleas, which provides that
at law, next of kin, legatees, or devisees, may the court will not hear any motion grounded
be and usually are directly interested in the on facts unless the facts are apparent from
result of the caveat. For these reasons and the record or verified by oath or agreed upon
because a sound public policy requires that by the parties, the appellant was not entitled
the settlement of the estates of deceased to have her motion ne recipiatur considered.
persons be made without unreasonable ex The answer to that objection is twofold. In
pense or delay, we are of opinion that, after the first place, a copy of the rule does not
issues have been framed, covering all of appear in the record; and, in the second place,
the grounds relied on in a caveat to a will in passing upon the motion we have con-
and sent to a court of law for trial, the sidered only facts appearing from the rec-
caveator should not be permitted to dismiss ord or the written agreement of the par-
them for the purpose of filing a new caveat ties found therein, without reference to the
without 'the consent of the caveatee.

reasons de hors the record set forth in the
· In the present case the caveat, alleging un. motion.
due influence, want of testamentary capacity, For the reasons stated in this opinion, the
and other grounds, was filed on January 4, order appealed from must be reversed and
1904, and issues fully covering all of the rea the case remanded for further proceedings
sons alleged in the caveat for refusing pro in accordance with this opinion.
bate of the alleged will were sent by the Order reversed, with costs, and case re
orphans' court to a court of law on March manded for further proceedings.
1st of the same year. After various delays
covering a period of nearly three years, and
when the issues had been specially set for

(106 Md. 132) trial on a particular day, the attorney for

LOVETT V. CALVERT MORTGAGE & DEthe caveator filed in the clerk's office toe

POSIT CO. OF BALTIMORE CITY, order to dismiss, and at once, and before (Court of Appeals of Maryland. May 15, 1907.) the will could be again presented to the or 1. USURY-EVIDENCE-SUFFICIENCY. phans' court for probate, he gave notice to Evidence held to show that the sum sued that court of his intention to file another

for was usurious interest paid upon a mortgage

loan, which loan had not been renewed, but caveat, and admitted to the caveatee's at.

wholly paid, and that a release thereof bad been torney that he intended to ask for issues asked for and received. on the new caveat to be sent to a court of (Ed. Note.--For cases in point, see Cent. Dig. law. By that time the administration of the

vol. 47, Usury, § 329.] estate had already been prevented for fully 2. SAME-TIME TO SUE. three years from the offer of the will for

Code Pub. Gen. Laws 1904, art. 49, $ 3.

provides that if any person shall exact for a probate. It appears from the record that

loan money above the value of $6 for the forin the meantime the creditors of the testa bearance of $100 for one year, he shall be tor had filed a bill in equity for the sale of

deemed guilty of usury. Section 6 provides that his real estate for the payment of his debts,

nothing in the preceding sections shall be so

construed as to make usury a cause of action and receivers had been appointed in that in any case where the bond, etc., or other evisuit who were in charge of the property.

dence of indebtedness has been redeemed by the In these circumstances, as the caveator had

obligor, except that of a renewal in whole or

in part of the original indebtedness. Held. not under the decisions of this court au ab

that where a mortgage loan had been fully paid, solute to dismiss the issues, the court and a release given, a recovery could not therebelow should have granted the appellant's

oftor be had for usurious interest paid on the

loan, motion ne recipiatur and stricken out the entry of dismissal made by the clerk on Appeal from Superior Court of Baltimore the caveator's order, and required the case City; Alfred S. Niles, Judge. to proceed to trial in due course. If the Action by William Lovett against the Calappellee were accorded the right to dismiss vert Mortgage & Deposit Company of Baltiat will, the issues on his caveat after they more City to recover usurious interest paid.

[ocr errors]

From a judgment for defendant, plaintifr render the mortgage usurious. Being thus appeals. Affirmed.

usurious, it must, as was said in Baltimore Argned before BOYD, PEARCE, BURKE, Permanent Building & Loan Association v. SCHMUCKER, and ROGERS, JJ.

Taylor, 41 Md. 418, "be regarded in the same George E. Robinson and 0. Parker Baker,

light as if it were a mortgage between indifor appellant. Charles W. Field, for appel

viduals, and apart from any law relating to lee.

building associations," and it is therefore immaterial whether the stock had matured

or not; the transaction being in law a simple PEARCE, J. On July 31, 1893, the plain

loan to be repaid with legal interest. It aptiff below, now the :ppellant, borrowed from the defendant, the appellee, a building and

pears from the plaintiff's pass book that he

has paid to the association the sum of $847.; loan association, $500 upon five shares of its

50; whereas, according to his calculation as stock of the par value of $100 each, and to

stated in the narr., computing interest at 6 secure said loan executed to the association

per cent. on $500, with montbly rests, and a mortgage upon his house and lot on Falls

crediting the monthly payment of $7.50 at Road, in Baltimore county, in which mort

each rest, his regular monthly payments exgage he covenanted to pay said association,

tinguished the debt on July 28, 1902, and con. during the continuance of said mortgage, a

sequently the 29 subsequent monthly pay. premium of $2.50 on the first business day

ments of $7.50 each were in fact payments of of each and every month, being 50 cents

usurious interest, amounting to $217.50, to premium on each sbare; also $2.50 on the

recover which he brought this suit on June first business day of each and every month

6, 1906. The narr. contained the common as interest on said loan, being at the rate of

counts, and a special seventh count, setting 6 per cent. per annum; and the further sum

forth the transaction and the 29 payments of $2.50 on the first business day of each

made after the extinguishment of the debt and every month as dues on said five shares

on July 28, 1902. The defendant filed the of stock---all said payments to be continued until said stock should become fully matur

general issue pleas and a special plea to the

seventh count of the narr., alleging that the ed and of the value of $100 per share, at

$217.50 sued for was usurious interest paid which time it was provided “said mortgage

over and above the legal rate of 6 per cent. shall be roid." Upon the execution of this

per annum upon the loan of $500 made unmortgage the plaintiff began to make the stip

der the mortgage, and that "upon the pay. ulated payments, and continued thereafter to

ment of said sum the plaintiff paid off, remake them regularly and promptly from July

deemed, and settled said mortgage and the 31, 1895, to December 29, 1904, when he

indebtedness secured thereby in cash, and that made his last payment, as shown by his pass

defendant executed and delivered to the plainbook, which was put in evidence. The rec

tiff a release of said mortgage under its corord does not disclose any calculation or state

porate seal, and that no part of said original ment by the association showing that the

indebtedness, or said mortgage debt, was restock was fully matured, but both parties

newed in whole or in part at any time whattreated the payment of December 29, 1904,

soever." The plaintiff replied to this plea as a final payment maturing the stock, and

that said sum of $217.50 was a claim for making the mortgage void. The only testi

usurious interest and an alleged premium mony given in the case was that of the plain

paid on said loan of $500 secured by said tiff himself, and of a Mr. Robinson, a member

mortgage, “but that the plaintiff only paid of the bar, who was called merely to prove

defendant on account of said mortgage the that no release had been recorded upon the

sum of $282.50, which is the amount of dues land records for Baltimore county. The

paid, and is the only amount credited by deplaintiff testified that when he made his final

fendant upon the mortgage, and therefore payment on December 29, 1904, the manager plaintiff did not pay off, redeem, and settle was not at the office, and that he made the

said mortgage, nor did the defendant execute payment to a young lady in charge, and he

or deliver to the plaintiff a release of said admitted that he had previously asked about mortgage under its corporate seal, and said a release of his mortgage, and that at that

mortgage still remains unreleased on the rectime he asked her for it, and that a few ords of Baltimore county, but admits that no days after that his wife received by mail part of said mortgage debt was renewed in a release of the mortgage.

whole or in part at any time whatsoever." At the time of the execution of this mort and upon these pleadings the issues were gage the transaction was believed, not only joined. by the parties thereto, but was everywhere The plaintiff testified that, after going believed, to be valid and legal in every re home on the day he made his last payment, spect, and to be free from any taint of usury; he counted up his book, and found that by but under the decisions in White v. Williams, allowing 6 per cent. interest he had overpaid 90 Md. 719, 45 Atl. 1001, made in 1900, and the defendant the sum of $221.25, and on the Washington Nat. Building & Loan Associa same evening wrote and mailed the defend. tion v. Andrews, 95 Md. 696, 53 Atl. 573, ant a letter, a copy of which was admitted made in 1902, such premiums were held to in evidence, notifying it of his claim, and

requesting it to send a check for $221.25 with the absence of such release. But the purout delay; that he was assisted by his coun pose and meaning of section 6 is free from sel, Mr. Baker, in counting up his book that any possible doubt or obscurity. Prior to evening; that he never received any answer its enactment by chapter 358, p. 601, of Acts to that letter, but that a release of the mort 1876, it had been settled by the cases of gage was sent to him under the seal of the Baugher v. Nelson, 9 Gill, 308, 52 Am. Dec. company, and after he got the release he 694, and Scott v. Leary, 34 Md. 389, that in wrote and mailed a second letter to defend usurious transactions the parties are not reant, dated January 10, 1905, a copy of which garded as in pari delicto, and that in this was admitted in evidence, in which he said state a borrower could recover back, in an acthe release of mortgage would not be ac tion for money had and received, usurious cepted urcil tua matter was finally settled ; interest which he had paid. In German that he iüù ordered the release sent back, Building Association v. Newman, 50 Md. 62, and wouiü have nothing to do with it until in speaking of section 6 of article 49, Judge defendant gave back what it honestly owed Bartol said: “The intent of the act of 1876 him. He said he did not know what be was to change the law in this respect, and to came of the release, but did not say he had take away such right of action in cases in returned it. He admitted that he was trying which the transaction has been closed and to recover the amount he had paid over $500 finally settled by the parties, and the debt and 6 per cent. interest thereon, and that he has been paid and satisfied." In that case had waited so long to sue because he had the loan was on mortgage, the principal debt broken his leg in May, 1905, and was laid up with usurious interest had been paid and for six months, but could not say why he did satisfied, and the plaintiff had applied for not sue before he broke his leg. The defend and had received a release of his mortgage, ant offered two prayers, as follows: "(1) and afterwards sued to recover the usurious That there was no evidence in this cause interest. The only question argued or conlegally sufficient to prove any indebtedness sidered in that case was the constitutionality from defendant to plaintiff, and that plaintiff of the act of 1876, and the court below held was not entitled to recover. (2) That, un it unconstitutional, on the ground that the der the pleadings and evidence in this case, subject of the act was not described in its the sum sued for by the plaintiff is usurious title. This court, however, held the title interest, in excess of 6 per cent. per annum, good and the act valid, and said: "As the paid by him to the defendant upon a mort settlement took place, and the money was gage loan of $500 from defendant to plain-paid after that act went into effect, its protiff, which said loan has not been renewed in visions afford a complete bar to the suit, unwhole or in part, but wholly paid off and ex less for some reason the act should be held tinguished, and therefore the plaintiff is not to be void and inoperative." entitled to recover.” The court granted both In the present case the whole contention of these prayers, and the only exception is to the defendant, in the language of his counthat ruling.

sel's brief, is that “the transaction was not These instructions are founded upon sec closed between the parties, because the mort. tion 6 of article 49 of the Code of Public gage still remains on the record unreleased; General Laws of 1904. Section 3 of that there having been no sufficient delivery of the article provides that: “If any person shall release and no proof that a valid release was exact, directly or indirectly, for loan of any sent to the appellant's wife.” The proof, money, goods or chattels to be paid in money, however, is clear, from the plaintiff himself, above the value of six dollars for the for that he asked for and received a release, bearance of $100 for one year, and so after which remained in his possession, though not that rate for a greater or lesser sum or for produced at the trial, and the presumption a longer or shorter time, he shall be deemed is that it was a valid release. There is no guilty of usury." Section 6 provides: “Noth evidence that he ever tendered its return. ing in the preceding sections shall be so The defendant had neither the right nor the construed as to make usury a cause of action power to record it, and the plaintiff's failure in any case where the bond, bill obligatory, or refusal to record it cannot affect the situapromissory note, bill of exchange, or other tion. It is difficult to conceive how the evidence of indebtedness has been redeemed transaction could have been more effectually or settled for by the obligor or obligors in closed and finally settled by the parties than money or other valuable consideration, ex by the execution and delivery of the release cept that of a renewal in whole or in part of the mortgage in compliance with the reof the original indebtedness.” Both the plead-quest of the mortgagor. ings and the plaintiff's own testimony con It was argued by the appellee that, “even clusively show that every fact stated in the if no release had ever been executed, the defendant's second prayer is true, for there law would be the same. If the debt were was no other evidence than that of the paid in full, the usurious interest can never plaintiff himself, except the proof that there be recovered back," and there are expressions was no release of the mortgage upon the rec in some of the cases which may, perhaps, adord, and if the defendant's prayers were im mit of this argument. In Woods v. Matchett, properly granted it could only be because of 47 Md. 395, where it was held that a party

[ocr errors]

Suit by James M. Fisher and others against Conway W. Sams and others. From a decree in favor of complainants, defendants appeal. Reversed. Complaint dismissed.

Argued before BRISCOE, BOYD, BURKE, PEARCE, SCHMUCKER, and ROGERS, JJ.

Albert C. Ritchie and Edgar Allan Poe, for appellants. John F. Williams and M. R. Walter, for appellees

may except to the confirmation of an award on the ground of usury, though no such defense was made before the arbitrator, the court said, "An action at law would lie prior to the act of 1876 to recover excessive interest actually paid,” and this language was repeated in New York Security Co. v. Davis, 96 Md. 87, 53 Atl. 669. In Border State Perpetual Building Association v. Hilleary, 68 Md. 52, 11 Atl. 505, Judge Robinson said: ""Acts of 1876, p. 601, c. 358, provides that no recovery shall be had of usurious interest, after the debt has been fully paid”—where the original debt bad not been fully paid, though the mortgage had been released; a part of that debt being embraced in a second mortgage, and a bill having been filed for an account and a release of the second mortgage. But it is sufficient for this case to hold that the transaction was closed by the release of the mortgage, and we intimate no opinion as to the effect of payment of the mortgage without a release.

It follows from what we have said that the ruling of the court was correct, and the judgment must be affirmed. We regret that, in addition to the loss of usurious interest paid, the costs must be imposed upon the appellant, who can only be relieved by the free grace of the appellee.

Judgment affirmed, with costs to the appellee above and below.

(106 Md. 156)

SAMS et al. v. FISHER et al. (Court of Appeals of Maryland. May 15, 1907.) 1. TAXATION-CLASSIFICATION OF PROPERTYRIGHT.

Acts 1888, p. 127, c. 98, $ 19, provides that from and after 1900 the property, real and personal, located in the Annex to the city of Baltimore shall be liable to taxation in the same manner and form as similar property within the prior limits of the city, provided that after the year 1900 the present Baltimore rate of taxation shall not be increased for city purposes on any landed property within the territory until avenues, streets, or alleys shall have been opened or constructed through the same, nor until there shall be on every block of ground so to be formed at least six dwellings or storehouses ready for occupation. Held that, when property within the Annex reached the required standard of development, the appeal tax court had jurisdiction after the year 1900 to relist and classify such property so that it should pay the full Baltimore rate. 2. SAME--NOTICE.

Baltimore City Charter. § 157 (Laws 1898, p. 332. c. 123), providing that the appeal tax court may summon before it any person whose account of taxable property may, in their judgment, require revision and correction, and examine such person on oath touching the same. provides for a sufficient notice to the owners of property located in the Annex to such city of the purpose of the appeal tax court to reclassify such property so that it would pay the full city rate as authorized by Acts 1888, p. 127, c. 98, $ 19.

Appeal from Circuit Court of Baltimore City; Henry Stockbridge, Judge.

BRISCOE, J. This is an appeal from a decree of the circuit court of Baltimore city overruling a demurrer to the plaintiffs' bill of complaint, and directing an injunction to issue as prayed in the bill.

It appears from the bill that the plaintiffs are owners of real estate situate in that part of Baltimore city known as the “Annex," and under the terms and provisions of Act 1888. p. 113, c. 98, as amended by Acts 1902, p. 199, c. 130, taxes had heretofore been levied for municipal purposes upon the property at the rate of 60 cents on the $100 of the assessed value, including the year 1906. The bill charges that the 60-cent rate continued down to and including the year 1906, but that the appeal tax court of Baltimore city, after notice given, was about to list or classify the property for purposes of taxation at the full city rate for 1907, which rate is $1.9742 on the $100 of its assessed value. It then charges that the appeal tax court has no power or authority to classify the property other or differently than the same is now classified on the tax rolls of the city, and that any attempt to reclassify the real estate or to change it from the tax lists on which the same is now listed for purposes of municipal taxation or to put it on any other or different tax list so that the same may be subject to a higher or greater rate of taxation is ultra vires, illegal, and void. The prayer of the bill is that the defendants be restrained by injunction, first, from listing or classifying the property for munici. pal taxation at a bigner rate than the 60cent rate; and, secondly, that any attempt to so classify or list the property for purposes of taxation or any classification heretofore made be declared ultra vires, illegal, and void, and that the appeal tax court be directed to remove, erase, and strike the same from the list or tax rolls of the city of Baltimore. A demurrer was interposed to the bill, which upon hearing was overruled; the court below holding that the order and classification by the appeal tax court of the property in question at the full city rate of taxation for the year 1907 was ultra vires, illegal, and void, and decreed that an injunction issue as prayed by the bill. From this decree an appeal has been taken.

The question here presented is an important one, both to the city of Baltimore and to the taxpayers owning property situate in that part of Baltimore city, forinerly

1

Baltimore county, which was annexed to taxed at the full city rate. When, therefore,
the city under Acts 1888, p. 113, c. 98. The property in the Annex reaches the prescribed
question immediately before us is this: Has development, it falls within the class of prop-
the appeal tax court of Baltimore city the erty the Legislature clearly meant should
power and authority under the provisions pay the city rate. The statute fixes the
of the acts of 1888 and 1902 to take property standard and the class of property, and, this
situate in the Annex, and which has be being so, the appeal tax court has the un-
come subject to taxation at the full city doubted right and power, under the broad
rate, out of the list of the 60-cent rate, and powers conferred upor it by the city charter,
to list or classify it at what is called the to transfer, list, and classify the property on
full city rate? The answer to this question its books so as it will pay the correct tax.
must be found in the construction to be plac Acts 1898, pp. 244, 292, 329, 332, 333, c. 123,
ed upon section 19, Acts 1888, p. 127, c. 98, $$ 6, 40, 147, 157, 161. The right and power
as amended by Acts 1902, p. 199, C. 130, of the appeal tax court to list and classify
and upon certain sections of the Baltimore Annex property has been upheld by a number
city charter conferring powers on the appeal of cases decided by this court.
tax court of Baltimore city. By section 19 In Balto. City v. Poole & Son, 97 Md. 67,
of the act of 1888 it is provided, in part, 54 Atl. 681, this court said: “When, there-
that from and after the year 1900 the prop fore, the appeal tax court may be informed,
erty, real and personal, in the Annex shall or have reason to believe, that any property
be liable to taxation and assessment in the within the territory annexed under the act
same manner and form as similar property of 1888 has been brought within those condi-
within the present limits of the city may be

tions of the annexation act which will warliable, provided that after the year 1900 the rant the imposition of the regular city rate present Baltimore county rate of taxation of taxation, they should give a reasonable shall not be increased for city purposes on

notice to the owner of their purpose to im. any landed property within the territory, pose this rate, fixing a time and place when until avenues, streets, or alleys shall have

he can be heard in relation to the matter. been opened and constructed through the

We have not been advised of, and have not same, nor until there shall be upon every discovered, any specific provisiou of law, block of ground so to be formed at least six prescribing how, and by what authority, dwellings or storehouses ready for occupa property in the annexed territory, which has tion. Acts 1902, p. 199, c. 130, subsequently

been brought within the conditions of the passed, declared what should be considered act of 1888, warranting the inposition of “landed property” within the terms of sec the city rate of taxation, is to be put into tion 19 of the act of 1888. In this case the that category upon the books of the appeal bill does not allege that the property has tax court, but it would seem, in the absence not reached that stage of development which of such specific provision, that that court is required by the statute to subject it to the should have power to make such classificafull city rate for the year 1907, so under tion. The correctness of such classification, the pleadings, and for the purposes of this however, is a question of fact dependent upcase, it must be assumed that the condition on proof as to the opening of a venues, of the property in controversy is such as to streets, and alleys through the property, and * meet the requirements of the act, and to the erection of the prescribed number of subject it to the full city rate. And this houses upon a block as provided in the anbrings us to the vital question in the case, nexation act, and, if no tribunal has been and that is: Has the appeal tax court of provided for the determination of that ques. Baltimore city the power to list or classify tion, it follows that relief against such ersuch property, situate in the Annex, so as it roneous classification can be had only through will be subject to the tax rate which the the restraining power of a court of equity; Legislature manifestly intended it should be? and the exercise of that power in cases in

There can be no doubt, it seems to us, volving the question of the rate of taxation that the action of the appeal tax court in under the annexation act was sustained in this case was entirely legal and within their Sindall's Case, 93 Md. 526, 49 Atl. 645, Goedelegated powers. The Legislature has de bel's Case, 93 Md. 749, 49 Atl. 649, and fined the class of Annex property which Kuenzel's Case, 93 Md. 750, 49 Atl. 649, shall be liable to the full city rate, and, when where the injunction was denied only beit reaches the standard of development re cause the amount involved was not suffiquired by the statute, it becomes the duty cient to give a court of equity jurisdiction." of the appeal tax court to so list, classify, or Poole's Case was cited and approved in the adjust the property upon the taxbooks in later case of Joesting v. Baltimore City, 97 order that it may be liable to the proper tax. Md. 597, 55 Atl. 436, and there is nothing in In other words, the Legislature has said that decision in conflict with what was said that the property in the Annex should te Poole's Case, supra, or in the previous cases exempt from the payment of taxes at the on this subject. full city rate for a definite period, but after To sustain the appellees' contention in this the year 1900, and when it has attained a case would practically defeat and annul the certain stage of development, it should be clearly expressed intention of the Legislature

« ΠροηγούμενηΣυνέχεια »