Davis v. Blackiston

• Decision Date: 14 November 1908
• Citation: 71 A. 89,108 Md. 640
• Parties: DAVIS et al. v. BLACKISTON.
• Court: Maryland Court of Appeals

71 A. 89

108 Md. 640

DAVIS et al. v. BLACKISTON.

Court of Appeals of Maryland

November 14, 1908

Appeal from Circuit Court, Allegany County; Robert R. Henderson Judge.

John W Davis and another appeal from an order of the circuit court overruling exceptions to a sale of mortgaged property by D James Blackiston and ratifying the sale. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ.

J. W. Scott Cochrane, for appellants.

Richard S. Bell and D. James Blackiston, for appellee.

SCHMUCKER J.

This is an appeal from an order of the circuit court for Allegany county overruling the appellants' exceptions to a sale of mortgaged property and finally ratifying the sale. The mortgage was made in the usual form by the appellant and his wife to John B. Widener on May 5, 1898, to secure the payment of an indebtedness of $390, which was represented by three promissory notes maturing at two, three, and four years from date, with interest. On the 20th of February, 1908, the mortgage, then long overdue, was assigned by the mortgagee for the purpose of foreclosure to D. J. Blackiston, who promptly took the requisite steps under article 66 of the Code (Pub. Gen. Laws 1904) for a sale of the mortgaged property, consisting of a farm of 332 3/4 acres. Before the sale was made, the appellant filed a petition in the mortgage proceedings for an order of court "staying and restraining the sale" because of the alleged mental incapacity of Widener at the time he executed the assignment to Mr. Blackiston. An order to show cause was passed on this petition, but, after an answer had been filed denying its allegations and testimony taken, the court dismissed the petition, and Mr. Blackiston sold the farm under the mortgage proceedings at public sale to the mortgagee, Widener, at the price of $700. After this sale had been reported to the circuit court by Mr. Blackiston and an order of ratification nisi had been passed, the appellants filed exceptions to its ratification, for the same reason which they had assigned in their previous application to have it stayed. The grounds of objection to the ratification of the sale are thus stated in the exceptions:

"First. Because the assignment of mortgage to D. James Blackiston for the purpose of foreclosure, and under which said assignment said sale was made, is nugatory and void for the reason that the assignor was at the time of said assignment, and now is, a non compos mentis and incapable of executing a valid deed or contract.

"Second. Because, by reason of the mental capacity of the assignor of mortgage, no marketable title to the property was offered at the sale reported, and the property by reason thereof did not bring half its value."

No objection was made to the validity of the mortgage itself, or the mode and form of conducting the sale, nor was any offer made to pay the mortgage debt, nor was it, otherwise than inferentially, if at all, averred in the exceptions that there were persons ready and willing to give a higher price for the property at the time of the sale who were deterred from bidding on it because of an apprehension that its title was doubtful or clouded. Strictly speaking, the only person who could complain that he was directly injured by a defect of title to the property sold under a proceeding like the present one is the purchaser. All that could be sold under the proceeding was the title of the mortgagor at the time of the recording of...