Mallery v. Quinn

Citations

• 88 Md. 38
• 40 A. 1079
• 1898 Md. LEXIS 184

Syllabus

<p>Equity Practice— Vacating Enrolled Order upon Petition— Unauthorized Release of Mortgage by Trustee upon Ex Parte order.</p> <p>When a decretal order in an equity case was passed ex parte and without a hearing upon the merits, it may, after enrolment, be vacated upon petition, when the court is satisfied that the decree should be set aside, or was entered by surprise or mistake, and will operate as a fraud upon the rights of others.</p> <p>A trustee of two different estates invested a sum of money, one-half of which belonged to each estate, in a mortgage from A. to the, trustee. Subsequently A. became entitled, as a distributee of one of the trust estates, to a sum in excess of the whole mortgage debt. Upon her application, an ex parte order was passed in the equity cause, in which both trusts were being administered, by which the trustee was authorized to release the mortgage and charge the amount thereof against the sum payable to A. out of one estate. The trustee was then insolvent and a defaulter to both estates. Held, that the Court had no authority to empower the trustee to pay A. her share of one estate with funds belonging to the other trust estate; that the release of the mortgage was a breach of trust in which A. and the trustee participated and must be cancelled, and that A. is bound to make good to the other trust estate the amount of her indebtedness to it.</p>