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194 HIGH COURT Of CHANCERY. 2d of April, 1849. The object of this deed was to secure advances to be made by the mortgagees from time to time to the firm of Mason and Son, not exceeding at any one time thirty thousand dollars, and -it embraces the entire property, real and personal, sold under the decree in the cause, and by its terms is subject to prior incumbrances. Ineffectual attempts having been made by the trustees ap- pointed by the decree of this Court to make sale of the pro- perty as an entirety, an order was passed authorizing a sale in separate parcels, which was accomplished, the parties respec- tively furnishing the machinery becoming purchasers thereof. These sales have been ratified, but in the order of ratification all questions affecting the distribution of the proceeds were reserved, so that the rights of the several parties to the pro- ceeds are now for the first time presented for consideration. It has been urged, that the relaxation of the rule in regard to fixtures and the indulgence which has been shown by the Courts in its application, when the question arose as between landlord and tenant, and especially when it affected fixtures erected for the purposes of trade, should prevail in this case, upon the ground that the elder Mason, the mortgagor, and his partners might and should be treated aa the tenants of the mortgagee upon the authority of the case of the George's Creek Coal and Iron Company vs. Detmold, 1 Maryland Sep., 225. But this case in my opinion by no means supports the proposition for which it is cited. In that case there was an affirmative covenant, that the mortgagor should continue pos- sessed of the land, with the power to take the profits and issues, until default, and this covenant in the judgment of the Court amounted to a re-demise, there being a certain deter- minate time fixed, beyond which the right of possession should not continue. But in this case no such covenant is to be found, and hence, according to the express language of the Court of Appeals, in laying down the rule which they say is to be extracted from the cases, the ground upon which the re-demise will be Inferred does not exist. Their language is, "that no such re-demise will bfl inferred from a covenant that |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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