FRAZIER AND WIFE V. LANAHAN.

[71 MARYLAND, 131]

APPLICATION OF PAYMENTS. Where a person indebted to another on a mortgage or on a judgment, and also on an open account or on a note, makes a payment generally, and the creditor has made no appropriation of such payment, the law will apply it to the most burdensome debt, that is, to the mortgage or judgment, in preference to the note or open account. But where the debtor is indebted on a mortgage and on a judgment, both of which are liens on his property, the payment ought to be applied to the oldest lien due and enforceable at the time the pay. ment is made.

WIFE'S UNITING WITH HUSBAND IN MORTGAGE CREATES NO EQUITY IN HER FAVOR as against the rights of a creditor in making application of pay. ments. She stands in no better position than a surety, who has no right to control, for his benefit, an appropriation of payments, when such appropriation is to be made by the court. Nor is the question affected by the fact that some of the payments were made with proceeds of the sale of tobacco grown and wood cut on property belonging to the wife, where the tobacco was grown and the wood was cut by the husband with the consent of the wife, and the proceeds of the sale were used and applied by him with her consent, and without any knowledge on the part of the creditor as to the sources from which the money was derived.

BILL to foreclose a mortgage from Frazier and wife to Lanahan. The court passed a decree directing a sale of the mortgaged premises. Other facts are stated in the opinion.

Joseph S. Wilson, for the appellants.

John P. Briscoe, for the appellee.

ROBINSON, J. The appellant Frazier was indebted to Messrs. Lanahan and Son on a running account beginning in 1871, and continuing down to 1874. Among the items in this account was a note of $1,640, the payment of which was secured by a mortgage, in which Frazier's wife united. Another item was a note of $1,000, and on this note a judgment was entered against Frazier and wife. The entire indebtedness of Frazier to Lanahan and Son amounted to $8,017.10. Upon this indebtedness, payments were made by Frazier at sundry times amounting to $6,642.37, leaving a balance, as claimed by Lanahan and Son, of $1,474.73. There does not seem to have been any specific appropriation of these payments, either by Frazier or by Lanahan and Son, and the question is, How shall these payments be applied by a court of equity? All agree that the payments made prior to the execution of the mortgage and the entry of the judgment on the note of $1,000 are to be applied to the first items of the account; but the con

tention is in regard to the payments subsequently made, amounting to about $1,400 — whether they shall be applied to the mortgage or to the judgment. Now, whatever may be the rule elsewhere, it is well settled in this state that where one is indebted to another on a mortgage cr on a judgment, and on open account or note, and makes a payment generally, and there has been no appropriation of such payment by the creditor, the law will apply it to the most burdensome debt; that is to say, to the mortgage or judgment, in preference to the note or open account. Such was the rule of the civil law, and it has been the rule here ever since the decisions in Gwinn v. Whitaker, 1 Har. & J. 754; Dorsey v. Gassaway, 2 Har. & J. 412; 3 Am. Dec. 557.

In this case, the mortgage and judgment are both liens on the property of the debtor, the one a general and the other a specific lien, and the payments, it seems to us, ought to be applied therefore to the oldest lien due and enforceable at the time the payments were made. And if so, the payments were properly applied by the court in discharge of the judgment, because it was due prior, in point of time, to the mortgage.

The fact that the wife united with the husband in the mortgage cannot create an equity in her favor as against the rights of the creditor. She can stand in no better position than a surety, and a surety has no right to control for his benefit an appropriation of payments, when such appropriation is to be made by the court. On the contrary, we take the rule to be, where one has two demands on the same debtor, the one being a sole obligation and the other an obligation with a surety, and no appropriation has been made of payments by either the debtor or creditor, the law will apply the payments to the sole obligation, in preference to the secured debt: Chester v. Wheelwright, 15 Conn. 562; Pierce v. Sweet, 33 Pa. St. 151.

Some of the payments, it was said, were made with the proceeds of sale from tobacco grown and wood cut on property belonging to the wife. But this cannot affect the question. The tobacco was grown and the wood was cut by the husband with the consent of the wife, and the proceeds of sale were used and applied by him with her consent, and without any knowledge on the part of the appellees as to the sources from which the money was derived. No one can question the right of the husband, under such circumstances, to apply the proceeds as he saw fit; and if no appropriation was made by him,

then the appellees had the right, and if they failed to exercise this right, then the court will apply the payments thus made to the oldest lien due.

In dealing with this case, we have treated the mortgage as one to Lanahan and Son, for although it was taken in the name of Samuel J. Lanahan, a member of the firm, it is admitted that it was given to secure an indebtedness to Lanahan and Son; and this being so, a court of equity will treat it as a mortgage to the firm.

The payments, it seems to us, were properly applied by the court, and the decree will be affirmed.

Decree affirmed.

APPLICATION OF PAYMENTS - Generally. One owing several debts to the same person, and making a payment, may apply it to whichever debt he pleases; but in the absence of an application by the debtor, the creditor may make such application of the payment as he desires: Blair v. Carpenter, 75 Mich. 167; King v. Sutton, 42 Kan. 600. After a controversy between a debtor and creditor, neither has the right to direct the application of payments: Lazarus v. Freidheim, 51 Ark. 371. And whenever payments have not been applied by the parties, the law will apply them according to the equity of the case, preferring a debt first due, undisputed, bearing the highest interest, and unsecured: Magarity v. Shipman, 82 Va. 806; Duncan v. Thomas, 81 Cal. 56; Blair etc. Co. v. Hillis, 76 Iowa, 246; and in the case of running accounts, the law will apply payments to the extinguishment of the items in the order of their dates: First Nat. Bank v. Hollingsworth, 78 Iowa, 675; Lazarus v. Freidheim, 51 Ark. 371; Thompson v. St. Nicholas Nat. Bank, 113 N. Y. 325.

In Hanson v. Manley, 72 Iowa, 48, where four notes were taken for the purchase price of a machine, and a mortgage was taken upon the machine to secure the notes, and a surety signed the two notes first to fall due, the machine having been sold under the mortgage for an amount more than sufficient to pay off the first two notes, the court decided that the surety could not insist that the proceeds of the mortgage sale should be applied upon the first two notes, but that the holders of the notes could apply the money upon the other notes, which were unsecured except by the mortgage.

In Lazarus v. Henrietta Nat. Bank, 72 Tex. 354, it was decided that when any moneys of a firm are paid with reference to the release of a mortgage held by a firm creditor, such purpose is a sufficient designation of the payment as to require the payment to be applied upon the secured debt.

The rule that a payment must be applied so as to do greatest benefit to the debtor cannot be invoked by a purchaser of mortgaged property in order to secure its release, where a subsequent partial payment is by consent applied by the mortgagee to other indebtedness: Hiller v. Levy, 66 Miss. 30.

SHUTT V. SHUTT.

[71 MARYLAND, 193.]

CRUELTY OF TREATMENT AS GROUND FOR DIVORCE A MENSA ET THORO. Outbreaks of passion and violence on the part of a wife when she is under the influence of drink and beyond self-control do not constitute such cruel treatment of the husband as will justify a divorce a mensa et thoro.

DRUNKENNESS DOES NOT CONSTITUTE SUCH EXCESSIVELY VICIOUS CONDUCT on the part of a wife as will justify a divorce a mensa et thoro under the Maryland code, although it may be accompanied with gross and revolting language, and lead to disagreeable broils in the family.

BILL for divorce. The opinion states the case.

Edgar H. Gans and Bradley T. Johnson, for the appellant. Frank X. Ward and William A. Fisher, for the appellee.

ALVEY, C. J. The bill in this case was filed by a husband against his wife for a divorce. The prayer of the bill is for a decree a vinculo matrimonii; but there is no ground shown for any such decree, and the court below only decreed a divorce a mensa et thoro, which the wife resists and the husband seeks to maintain.

The bill charges cruelty of treatment and habitual drunkenness by the wife as the grounds for divorce; and while some of the allegations of the bill are overstated, and others given undue color, the proof shows a case of matrimonial infelicity that is truly deplorable. The case is an unfortunate one, both for the husband and the wife.

The parties have been married since 1866, but have had no children. They have lived in respectable society, and until the unfortunate habit was contracted by the wife of overindulgence in the stimulants of intoxicating drink, they appear to have lived in entire harmony and in a state of happiness as husband and wife.

It appears that the wife had been for some years sorely afflicted with what the physician terms bronchial asthma, intermittent attacks of coughing, palpitations of the heart, and difficulty of breathing; and to such an extent was she so afflicted that she would have fainting spells which at times threatened the termination of her life. It was while she was so afflicted, and as means of relief, that she resorted to the use of brandy and gin, and perhaps other alcoholic stimulants. It is shown that the habit in the use of these stimulants grew upon her gradually, and from moderate use in the

beginning it became immoderate, and finally ran into distressing excesses. This habit was acquired with the knowl edge and under the immediate observation of the husband; and while the proof shows that he was kind and indulgent to his wife, it is not shown that he ever attempted to arrest or break up this unfortunate habit by the resort to any means of cure and reformation, or even of temporary restraint.

We shall not attempt any recital of the details of the evidence. Such recital could serve no useful purpose, in the view we have of this case. Suffice it to say, that the charge of cruelty of treatment by the wife, in the sense of bodily harm or serious danger to health of the husband, is not supported in proof, as the law requires, to make it the ground for a decree of separation. The only personal violence offered to the husband, as shown by the proof, occurred on some two or three occasions, when he had interposed between the wife and his mother, the latter living in the house of her son, and as between whom and the wife there seems to have been difficulties and frequent boisterous altercations, and which, upon two or three occasions, resulted in personal violence to the mother-in-law. These outbreaks of passion and violence, as shown by the proof, never occurred except when the wife was under the influence of drink, and was without self-control. All this, though disgusting and reprehensible to the greatest degree, does not establish the fact of such cruelty of treatment of the husband, according to the requirements of law, as will justify a decree of divorce on that ground. Indeed, we do not understand it to be seriously contended that, as an independent ground, cruelty of treatment is sufficiently shown to justify a decree.

The ground principally relied on in support of the decree below is the habit of intoxication and its attendant consequences, to which we have referred as constituting a case of excessively vicious conduct by the wife within the meaning of the statute. The terms "excessively vicious conduct" are very indefinite; and of the multitude of vices to which humanity is subject, the legislature has given no intimation as to the class or character of vices to which the statute was intended to apply. It would, however, be difficult to suppose that it was intended to apply to all the multiform vices to which mankind is liable, though indulged in to an excessive degree. The terms "excessively vicious conduct" were originally employed in the act of 1841, chapter 262, which was the