Albert v. Hamilton

• Court: Maryland Supreme Court
• Writing for the Court: BRYAN, J.
• Citation: Albert v. Hamilton, 76 Md. 304, 25 A. 341 (Md. 1892)
• Decision Date: 17 November 1892
• Parties: ALBERT et al. v. HAMILTON.

25 A. 341

76 Md. 304

ALBERT et al.

v. HAMILTON.

Court of Appeals of Maryland.

Nov. 17, 1892.

Appeal from circuit court, Washington county, in equity.

Suit by Jacob Powles Albert and others against Clara Hamilton, as sole executrix of William T. Hamilton. Judgment for defendant, and plaintiffs appeal. Affirmed.

Argued before Bryan, McSherry, Fowler, Briscoe, and Page, JJ.

A. D. Merrick and A. S. Garis, for appellants.

J. Clarence Lane, Geo. W. Smith, and H. H. Keedy, for appellee.

BRYAN, J. Jacob P., George W., and Charles R. Albert filed a bill in equity against Clara Hamilton, widow, executrix, and residuary legatee of William T. Hamilton, deceased. The allegations were that the decedent in his lifetime, by false and fraudulent representations, procured a mortgage of certain land from them, and from their mother and their brothers, Frederick and Robert, and their sister, Anna L. Hammaker, and her husband. The charge is set forth with much particularity of circumstance and detail. It is further alleged that under proceedings by virtue of the mortgage the land was sold by the mortgagee, and a portion of it purchased by him: and that the sales were reported by him to the circuit court for Washington county, sitting as a court of equity in a cause designated as "No. 3,688;" and that exceptions were filed to the ratification of the sales by the mother of the complainants and their brothers, Frederick and Robert, and their sister, Anna L. Hammaker, and her husband; that afterwards in June, 1886, the said mother and brothers of the complainants and their sister and her husband filed a bill in equity against Hamilton in the same court, (being designated as "No. 3,752,") in which they charged that the said mortgage was obtained by fraud of the mortgagee, and prayed that it should be set aside and vacated; that this cause was submitted to the court for decision without arguments, briefs, or any attention to the interests of the complainants on the part of their solicitor; that all the papers in the cause were removed and abstracted from the clerk's office; and that no trace could be found of them until within the last year; and that the abstraction of the papers was under and by the authority of said Hamilton. It was further alleged that he died November, 1888, leaving a will by which his widow, the present defendant, was made executrix and residua ry legatee. The prayer of the bill was that the said mortgage should be set aside and annulled, and for general relief. It is not distinctly stated in the bill of complaint what was the final disposition of the cases Nos. 3,688 and 3,752. But the records of these cases were offered in evidence. It appears that in No. 3,688 the exceptions to the sales were overruled, and the sales ratified by the court after hearing evidence for the exceptants and respondents, and after filing an opinion in which the questions presented were fully discussed, and that the auditor's report making the distribution of the proceeds of the sale was finally ratified and confirmed, and that the report showed a balance of $8;'3.17 due to the mortgagee. It was not alleged in the exceptions to the ratification of the sales that the mortgage was fraudulent, or that it was invalid for any reason. It also appears that in No. 3,752 the bill was dismissed, with costs, after an elaborate and well-considered opinion by the court, and that George and Charles, two of the present complainants, were examined as witnesses in the cause. Mrs. Hamilton, the defendant in the present cause, answered the hill of complaint, and with great distinctness denied all the charges of fraud. A good deal of testimony was taken in the cause; all of the complainants testifying in their own behalf, and all of the other mortgagors being examined as witnesses on their call. Exceptions were filed to the competency of these witnesses. After a hearing the court dismissed the bill, with costs, and the complainants appealed.

The court sitting in equity had jurisdiction of the questions arising under the proceedings to enforce the mortgage. By the ninth section of article 66 of the Code, it is enacted that it should have full power to hear and determine any objections against the sale of the land which might be filed by any person interested in the property, and that it might confirm or set aside the sale; and by the eleventh section it is provided that, when the sale is confirmed by the court, it shall pass all title which the mortgagors had at the time of the recording of the mortgage. Until the sale is reported by the mortgagee, all the proceedings are ex parte; but, when the report is made, an opportunity is afforded to all parties interested to make their objections to the sale. As the ratification of the sale will pass all the title of the mortgagors, it must follow that they have a right, in objecting to the ratification, to show, if they can, that their title ought not to pass. If this were not the case, their title would, under the terms of the act, be taken from them without a hearing. If the mortgage under which lands are sold is void for any cause, undoubtedly this is a most sufficient reason why the sale should not be ratified which takes away the title of the mortgagor. The statute says that the court "shall have full power to hear and determine any objections which may be filed against the sale,"¹ not merely objections to the regularity of the mode in which the sale was conducted. The object was to enable mortgagors and others to prevent the ratification of a sale which would unjustly deprive them of their property. The purpose of this legislation was to provide a more expeditious, and less expensive, method of enforcing mortgages than the former proceeding by formal bill inequity,...