Berry v. Skinner

• Decision Date: 02 June 1869
• Parties: BENJAMIN BERRY, by JOSEPH K. ROBERTS, JR., his Committee, v. AUGUSTUS P. SKINNER, Mortgagee and Trustee.
• Court: Maryland Court of Appeals

30 Md. 567

BENJAMIN BERRY, by JOSEPH K. ROBERTS, JR., his Committee, v. AUGUSTUS P. SKINNER, Mortgagee and Trustee.

Court of Appeals of Maryland

June 2, 1869

APPEAL from the Circuit Court for Prince George's County, in Equity.

This appeal was taken from an order of the Court below, dated the 19th March, 1869, ratifying a sale of mortgaged real estate made by the appellee, under the provisions of the 64th Article of the Code. On the 7th of April, 1864, Benjamin Berry executed a mortgage of certain real estate in Prince George's county, to the appellee, to secure to him the payment in five years, of the sum of four thousand dollars loaned by him to the said Berry, and interest thereon half-yearly. In this mortgage there were conditions and covenants by the mortgagor authorizing the mortgagee, on default being made by the mortgagor, to sell, on giving twenty days' notice of the sale, in some newspaper published in the city of Baltimore. The default occurred, and the proceedings in this cause commenced on the 27th of June 1868, under the provisions of the 64th Art. of the Code, by filing a copy of the mortgage, with a bond by the mortgagee as trustee. Notice was given by advertisements in the ""Sun" (a newspaper published in Baltimore,) for the requisite time, and according to said notice, the property was sold on the 1st of September, 1868, at public auction, and purchased by Thomas Cottingham for the sum of $5,605.00, and the sale duly reported to the Court. There was the usual order of ratification nisi.

On the 22d of October, 1868, the appellant, Roberts, as committee of Berry, who had been declared a lunatic, filed exceptions to the ratification of the sale. With these exceptions were filed a duly certified transcript of the proceedings in a cause on the equity side of said Court, whereby it appeared that the appellant, Roberts, had been duly appointed a committee to take charge of the person and property of the said Benjamin Berry, (who since the date of the mortgage had become a lunatic,) and had qualified by giving bond.

In the same transcript was the petition of Roberts, as such committee, and one of the creditors of the lunatic, praying for a decree for the sale of the estate of said lunatic, and the proceedings thereunder, which however, had reached no conclusion by any decree of the Court.

The case was submitted to the Court, and the order finally ratifying the sale, was passed. From this order the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, GRASON, and ALVEY, J.

Joseph K. Roberts, Jr. and Thos. F. Bowie, for the appellant:

Courts of Chancery are vested with the special care and custody of the persons and estates of lunatics, and, at the time of the sale, the Court had assumed full and complete jurisdiction over the person and estate of the lunatic. In the Matter of Rachel Colvin, 3 Md. Ch. Dec., 295; Brogden vs. Walker, 2 H. & J., 285; Act 1785, chap. 72, sec. 6; Code, Art. 16, secs. 79-87; 2 Story's Equity, sec. 1364; Alexander's Ch. Prac., 222, 223, 231, 232.

Lunatics are considered in law civilly dead, and there was no one in being at the date of the sale of the property to claim for the lunatic that valuable right of redemption which was secured to him by the law. In the Matter of Rachel Colvin, 3 Md. Ch. Dec., 278, and 4 Md. Ch. Dec., 126; Chitty on Contracts, 137; 2 Story's Equity, secs. 1019, 1323.

A mortgage is a mere security for the payment of a debt, and in this case, it could only be enforced through the interposition of a Court of Equity. Timms and wife vs. Shannon, 19 Md., 296, 297.

By Article 16, Code of Public General Laws, the property of a lunatic may be decreed to be sold for the payment of his debts, by application to a Court of Equity only. Campbell's Case, 2 Bland, 209; Boarman's Case, 2 Bland, 89; Morgan's Case, 3 Bland, 332; Watkins vs. Worthington, 2 Bland, 509; Wampler vs. Walfinger, 13 Md., 337.

Becoming a lunatic after entering into a bona fide contract, does not release the lunatic from liability, but a Court of Equity is alone authorized to enforce said contract by its decree. 3 Bac. Abridg., 540; Colegate D. Owings' Case, 1 Bland, 370.

After the death of a lunatic, Courts of Equity will not administer his estate for the benefit of creditors, as their special jurisdiction then ceases. Cain, et al. vs. Warford, 3 Md., 454.

Frank. H. Stockett and C. C. Magruder, for the appellee:

The proceedings by the appellee, were strictly in accordance with the provisions of Article 64, of the Code, and the powers vested in him by the mortgage from Berry. This being so, the only questions to be considered by the Court, are:

First. Whether the rights of a mortgagee, under a conveyance executed in accordance with the provisions of Art. 64, of the Code, are to be defeated or postponed by the fact, that the mortgagor afterwards became a lunatic, and had a committee appointed to take charge of his person and property?

On this point the provisions of Article 64, of the Code, are conclusive. It confers the powers on the contracting parties to make their own terms and conditions, within the limits prescribed by the laws, and the covenants so made and the powers so conferred, are the law of the case, and no restriction will be supplied by the Courts, or interference extended, unless there be fraud or misrepresentation in procuring the deed, or bad faith in carrying out its covenants. It was perfectly competent for the mortgagor, when he entered into the agreement, ratifying or evidencing it by his solemn deed, to have made provision for such contingencies as he designed should excuse his failure to keep his covenants. Touteng, et al. vs. Hubbard, 3 Bos. & Pul., 300; Bullock vs. Dommitt, 6 Term, 650; The Brecknock Co. vs. Pritchard, 6 Term, 750; Atkinson vs. Ritchie, 10 East., 531; Chitty on Contracts, 55, 59, 734; 1 Parsons on Contracts, 384, 385; 2 Parsons on Contracts, 158, 159, 162, 163, 165, 169, 170, 171, 183, 184, 185, 186, 188. That he did not do so, was perhaps his misfortune, but that would not authorize a Court of Equity to interfere, to restrain the rights of the other contracting party, even had the application been made by the committee of the lunatic, by bill for an injunction, still less can any authority be found recognizing such an objection to the ratification of a judicial sale, openly made, without notice of objection or hindrance, and after every requirement of the law had been fully complied with. Code, Art. 64, sec. 5, &c. 4 Kent's Comms., 146-7-8, (marginal;) Bergen vs. Bennett, 1 New York Cas. in Error, 1, 14, 15, 16, 17.

Secondly. Whether the fact that proceedings have been commenced by the committee or the...