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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 33   View pdf image (33K)
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OHIO LIFE INS. & TRUST CO. VS. ROSS & WINN. 33
most important one in the cause, relates to the relative rights
of the creditors, claiming the benefit of these mortgage
securities.
It is contended on the part of the defendants, Winn and
Ross, trustees of Jones, that as the latter received the notes of
Hancock and Mann, with knowledge of the existence of the
mortgage executed for their security, and as the plaintiffs took
the acceptances held by them, in ignorance of the mortgage,
that the claim of the former to the benefit of the security, must
prevail over the latter.
It is supposed that Jones, knowing of the mortgage, entered
into the arrangement, by which his paper was to be exchanged
for the paper of Hancock and Mann, with direct reference to
it; and therefore his equity must override the equity of a
party, who contracted for a security merely personal, but who
discovers the existence of a collateral pledge, of which he was
in ignorance at the time.
It is certainly not unworthy of remark, that if the defendant
Jones did know of the existence of the mortgage of the 31st of
July, 1845, he also knew it was unrecorded, and the list of the
notes of the mortgagors, filed by his trustees, shows, that but
a very inconsiderable proportion, of the large amount of the
papers of these parties received by him, was so received, after
the time limited by law for the registration of such instruments
had gone by. He knew the mortgaged premises were in pos-
session of the mortgagors, and that they were the ostensible
owners thereof, unaffected by this mortgage, so far as the
public could be informed, because it was not recorded; and
then, when a question arises, between him, and a party trusting
a mortgagor, subsequently he claims to stand upon a stronger
equity, because he knew of the unregistered mortgage, and
the other party did not. Such a pretension is in conflict with
the act of 1785, ch. 72, section 11.
But is it true that the plaintiffs in this case occupy less
eligible ground, than they would have occupied, if instead of
taking acceptance, secured by a mortgage, they had taken an
assignment of the mortgage itself?

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 33   View pdf image (33K)
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