| Volume 200, Volume 2, Page 557 View pdf image (33K) |
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INDEX. 557. EQUITABLE LIEN ON LANDS— Continued. such a consummate and binding agreement for a mortgage, as a Court of Equity would enforce as against creditors and purchasers. Jo. 3. Courts of Equity have properly required, that every agreement shall be clearly and explicitly established before they will lend their aid to en. force it. Ib. 4. The doctrine of postponing registered to unregistered conveyances, upon the ground of notices, has been so qualified as only to apply to cases where the notice ia so clearly proved as to make it fraudulent in one purchaser to take and register a conveyance in prejudice to the known title of the other. Ib. 5. This qualification would seem to inculcate the doctrine, that the courts should he cautious how they give expansion to the cases in which secret equitable contracts for liens have been set up as against innocent third parties. Ib. 6. The cases in which these secret equities have been set up, were all cases between the party holding the lien and creditors; and it is be- lieved, no case can be found in which such secret equitable lien has been maintained against a purchaser, and to enforce the agreement in this case, would be pushing the case of Alexander vs. Ghiselen further than is warranted by any principle clearly decided in it. Jb. 7. As far as the cases have gone in Maryland, it is proper for the security of the rights of property, and to avoid confusion and uncertainty, that the courts should continue to enforce these equitable contracts for mortgages when clearly proved as against creditors; but the policy of carrying the doctrine further than it has already been expressed, is doubted. Jo. EQUITY. 1. The Court of Chancery haa no jurisdiction to decide that a return to a writ of jiera facias or venditioni expmas ig defective. The court out of which the writ issued alone having cognizance of the question of the sufficiency of the return. Melsom et al. vs. Turner, 73. 2. If a defendant in a judgment at law objects to the return by the sheriff, he may appear in the County Court, at the term to which the writs were returnable, and move to quash them, or retain possession of the land sold, and effectually defend himself in an action of ejectment brought by the purchaser, or upon proceedings under the act of 1825, ch. 103, if the description of the land in the return was ao far defec- tive as to render it void for uncertainty. Ib. 3. The father of the plaintiffs in this caSe having failed to adopt either of these modes of resistance, and having by various acts and declara- tions, free from all equivocation or doubt, acknowledged the perfect validity of the purchaser's title—under the circumstances, there can be no principle of equity which would justify the active interposition of this court in his favor, or in favor of those who claim under him. Ib. 4. The defendant exhibited and delivered to the complainant who was the assignee of certain property, subject to an agreement of sale be- 48* |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 2, Page 557 View pdf image (33K) |
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