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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 471   View pdf image (33K)
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NOTLEY YOUNG'S ESTATE. 471
dition of the deed which required them to hold the property for
the separate use of Mrs. Smith. But this argument puts the
petitioner's right to relief upon a ground different from that
taken in the petition. The petition does not allege that they
(Neale and Luckett) surrendered the property or any part of
it to other persons, thereby defeating one of the stipulations of
the deed, but that they sold it, though by the deed they should
have held or conveyed it to some persons to be named by Mrs.
Smith, for her separate use, that being the only condition upon
which she had conveyed her interest in the estate of her
father.
Assuming, however, that the petitioner, though he has alleged
a sale, may rely upon the answer as a ground of relief, it does
not by any means follow, that he has a right to take from
Neale and Luckett, the money which has been awarded them
in this case. The mortgage from Mr. Smith to these parties
says, " that after the full payment of their claim, the said Neale
and Luckett the property aforesaid shall hold and retain, or
convey to such person or persons, &c., as Mrs. Smith, by writ-
ing, may direct and appoint, for her sole and separate use."
Now in their answer, they say that the larger portion of the
property conveyed by the mortgage executed by Smith, was
claimed by the administrator, d. b. n. of his father, and that
though they considered themselves amply secured by the assign-
ment or conveyance of Mrs. Smith, they employed counsel to
examine into the question of title, and their counsel being of
opinion that the title of Smith was defective, they did agree to
surrender their interest in the same to the administrator d. b. n.,
" expressly reserving, however, all right or claim which Mrs.
Smith might have thereto or therein, and offering to the
counsel of Mrs. Smith the use of their names for the purpose
of prosecuting or maintaining any such right, and tendering
themselves ready to transfer to her trustee the interest in the
mortgage which they might represent for her."
Now I cannot think, that 'by such conduct as this, Messrs.
Neale and Luckett have forfeited their right to look to the
proceeds of the property sold in this cause, for the reimburse-

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 471   View pdf image (33K)
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