Beetem v. Garrison

• Decision Date: 10 January 1917
• Docket Number: 52.
• Parties: BEETEM v. GARRISON.
• Court: Maryland Court of Appeals

99 A. 897

129 Md. 664

BEETEM v. GARRISON.

No. 52.

Court of Appeals of Maryland

January 10, 1917

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

"To be officially reported."

Mortgage foreclosure sale by Mary De C. Garrison. From order overruling his exceptions to the sale, Charles H. Beetem trustee, the purchaser, appeals. Order affirmed

Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON URNER, STOCKBRIDGE, and CONSTABLE, JJ.

O Parker Baker, of Baltimore, for appellant.

Hyland P. Stewart and Warren A. Stewart, both of Baltimore, for appellee.

THOMAS J.

The questions presented by this appeal arise on exceptions to a mortgage sale of real estate.

In 1899, the Mt. Washington Realty Company of Baltimore county a corporation, by deed dated the 7th day of April, in consideration of $14,500, conveyed to George A. Boyden, of Baltimore county, Md., a parcel of land fronting about 1100 feet on Washington avenue, "being part of the property known as 'Mount Washington,"' and being also the first described "tract of land" in a deed, dated March 24, 1899, from Mary Grace Sauerwein to the Mt. Washington Realty Company. The habendum clause of the deed is as follows:

"To have and to hold the same unto the said George A. Boyden, his heirs and assigns, in fee simple, subject to the conditions of the following covenants on the part of the said grantee and the said George A. Boyden for himself, his heirs and assigns, covenants that he will speedily and without unnecessary delay dedicate a strip of land not less than thirty feet wide for a road connecting Washington avenue opposite the Catholic Church or adjacent thereto with the Electric Railway Station, and that he will not allow any cottages to be erected on said property fronting on Washington avenue of less cost than three thousand five hundred dollars, nor nearer than fifty feet to the south sidewalk except as to the front east of the proposed new road, where buildings may front immediately on the sidewalk, but shall not be of a cost less than three thousand five hundred dollars, and the said body corporate, the grantor, doth covenant that it will warrant specially the property hereby conveyed and that it will execute such further assurances as may be requisite to confirm these presents."

On the 15th day of December, 1911, Mary Grace Sauerwein and the Mt. Washington Realty Company of Baltimore county executed a "confirmatory deed" to George A. Boyden and Sallie L. Gernand. This deed contains the following provisions:

"Whereas by deed dated March 24th, 1899, and recorded among the land records of Baltimore county in liber N. B. M. No. 237, folio 277, etc., the said Mary Grace Sauerwein conveyed to the said Mount Washington Realty Company the two tracts or parcels of land in the village of Mt. Washington, therein described by metes and bounds, courses and distances.

"And whereas by deed dated April 7th, 1899, and recorded in same liber and number at folio 425, the said body corporate did convey the tract or parcel of land first described in said deed to it from said Mary Grace Sauerwein to George A. Boyden and by deed dated April 8th, 1903, and recorded as aforesaid in same liber No. 270, folio 553, the said body corporate did convey the tract or parcel of land secondly described in said deed to it from said Mary Grace Sauerwein to Edward L. Gernand, who has since departed this life, leaving his widow, Sallie L. Gernand, his sole devisee by his last will and testament.

"And whereas a doubt has arisen as to the efficiency of the said deeds from Mary Grace Sauerwein and the said body corporate to convey said lands because of a delay in the filing of a certificate of the incorporation of said company in the treasury department of the state of Maryland, until the 7th day of April, 1899, although the amount of the bonus tax required by law was deposited in the office of the comptroller on the 24th day of March, 1899. And to quiet and confirm the titles of said two tracts or parcels of land in their owners this deed is executed.

"Now this deed witnesseth, that in consideration of the premises and the sum of one dollar, the said Mary Grace Sauerwein and the said Mount Washington Realty Company of Baltimore county do grant, convey and confirm unto the said George A. Boyden, his heirs and assigns in fee simple, all that tract or parcel of land in the village of Mount Washington first and at length described in the aforesaid deed from said Mary Grace Sauerwein to said body corporate, and also described at length in the aforesaid deed from said body corporate to said George A. Boyden.

"And this deed further witnesseth that in consideration of the premises and of the sum of one dollar, the said Mary Grace Sauerwein and the said Mount Washington Realty Company of Baltimore county do grant, convey and confirm unto the said Sallie L. Gernand, her heirs and assigns in fee simple all that tract or parcel of land in the village of Mount Washington secondly and at length described in the aforesaid deed from said Mary Grace Sauerwein to said body corporate, and also described at length in the aforesaid deed from said body corporate to said Edward L. Gernand.

"Together with the buildings and improvements thereon and the rights and appurtenances thereto belonging or in any wise appertaining.

"To have and to hold the first described tract or parcel of land unto the said George A. Boyden, his heirs and assigns in fee simple, and to have and to hold the secondly described tract or parcel of land unto the said Sallie L. Gernand, her heirs and assigns in fee simple."

On the 23d day of April, 1913, George A. Boyden and wife executed a mortgage to Mary De C. Garrison, conveying to the mortgagee a parcel of land, fronting about 236 feet on the south side of Washington avenue, and being a part of the land described and conveyed in the two deeds referred to, to secure the payment of the mortgage debt of $5,000 and the interest thereon. The mortgage authorized the mortgagee, or Hyland P. Stewart, her attorney, in case of default in the payment of the mortgage debt, or in any agreement, covenant, or condition of the mortgage, to sell the mortgaged property, "upon giving twenty days' notice of the time, place, manner and terms of sale, in some newspaper printed in Baltimore county," etc. In June, 1914, a case was docketed in the circuit court for Baltimore county, the attorney named in the mortgage filed an approved bond, and advertised the above-mentioned property conveyed by the mortgage for sale, "at public auction on the premises" on the 23d of June, 1914. Part of the land referred to was subject to two leasehold estates created by two leases from George A. Boyden and wife to Thomas G. Bloom, and the two ground rents were sold at public sale by the attorney named in the mortgage on the day advertised. The balance of the lot, which fronted about 161 feet on the south side of Washington avenue, was offered for sale on the same day, but was withdrawn because the highest bid received therefor was $1,000, which the attorney deemed insufficient. The sale of the ground rents was reported to the circuit court for Baltimore county, and was finally ratified by the court on the 11th of October, 1915.

On the 12th of February, 1916, Hyland P. Stewart, the attorney named in the mortgage, and Charles H. Beetem, trustee, entered into a contract under seal by which the balance of the property so advertised was sold at private sale by the attorney named in the mortgage to Beetem, trustee, for $3,500, $200 of which was paid before the execution of the contract, and the balance was to be paid, according to the terms of the agreement, upon the ratification of the sale by the circuit court for Baltimore county. The agreement provided that upon payment of the balance of the "purchase money" the vendor was to convey to the vendee "a good and merchantable title" to the property. The sale was duly reported to the...