McClintock v. Lang

Opinion by

The bill in this casp appears to have *31been filed to enforce an equitable lien on eight acres of land, and also to foreclose a mortgage on ten acres of the same land. In Feb - ruary, 1857, defendant, Alva C. Lang, who is; or was,, the husband of the defendant,. HarrietC., was owner of the ten acres.gf land mentioned, and being then in debt to the complainant, and being also desirous of obtaining from him advances to enable this defendant to build a house and make other improvements on said land, conveyed the. land to complainant by a deed, absolute in form, his wife joining therein, which deed, however, was intended as a mere security for such indebtedness and advances. "While complainant so held said land" as security, said Alva C. Lang proposed to him thát it be re-conveyed, and-said Alva would file the necessary document in the office of the Register of Reeds, setting the same apart as a homestead ; and could then give complainant a mortgage signed by himself and wife to secure the amount due to complainant. And complainant, relying upon this promise, did reconvey the land to said Alva'by deed, dated May, 1859, and the said document was then filed; as promised. The bill alleges that defendant, Harriet C., knew of the indebtedness and advances, and that the same accrued and were made to said Alva in the purchase of said land and in the improvement thereof; and she was also cognizant of the agreement to secure the same by mortgage. The bill was filed May, 1867, and amended August, 1867, at which time the sum of $577 was claimed to- be due and secured by this equitable lien.

While the complainant has been sleeping for eight years upon his rights, the position of the other parties^ has changed- in important particulars. Harriet C. has become the owner of the land, and Alva O. claims to have obtained a divorce from her, and now appears as a witness in this case to make out the necessary facts to establish the lien. The present, suit was not instituted until the debtor defendant had parted with the property to be charged, and he comes forward with his own testimony to establish a lien upon his own debt upon lands owned by his co-defendant, with whom, in the meantinie, he has had difficulties sufficient in his own opinion to warrant a divorce.

But the Court refused to put a decision of the case upon the laches of the defendant, and held that the bill so far as this equitable lien is concerned, is in the nature of a bill for the specific perform-*32sneer of a contract. The complainant’s equity is based upo» tbe refusal to perform a parol agreement to give a mortgage upon land's. Or» a review of this branch of the case the Court held that the alleged understanding was very indefinite at best, and that no steps were ever taken toward preparing a mortgage or agreeing upon its terms.— The claim was therefore denied.

Upon the other branch of the case a question of practice becomes important. Mr. Lang interposed a defense to the mortgage,' and took evidence in support of such defense. This evidence, how-ever was suppressed by the Court as irregularly taken, because, the notice of taking the same did not proceed from, any party having the right to give it.

Held, That the Circuit Judge properly suppressed it. • The notice did not come regularly from the solicitor.

The evidence of the defense being properly suppressed the Court below had-no discretion but tQ give decree for the amount of the inortgage. But the decree actually made having been too great, it .must be reversed and the cause remanded, with direction to enter a décree in accordance with these views. A reference is ordered for the purpose of accounting.