Dorsey v. Omo

• Decision Date: 07 March 1901
• Citation: Dorsey v. Omo, 93 Md. 74, 48 A. 741 (Md. 1901)
• Parties: DORSEY v. OMO. OMO v. DORSEY.
• Court: Maryland Court of Appeals

48 A. 741

93 Md. 74

DORSEY v. OMO.

OMO v. DORSEY.

Court of Appeals of Maryland

March 7, 1901

Cross appeals from circuit court, Prince George's county, in equity; George C. Merrick, Judge.

"To be officially reported."

Suit by Alverda S. Dorsey against Julia A. Omo. From a decree, both parties appeal. Decree reversed.

Argued before McSHERRY, C.J., and BRISCOE, JONES, PAGE, BOYD FOWLER, and SCHMUCKER, JJ.

James Mackubin, for appellant.

James C. Rogers and Marion Duckett, for appellee.

McSHERRY C.J.

There are two appeals in this record, and the questions presented therein arise in this way: Herman Beeken and Frederick Baxter executed a mortgage to Alverda S. Dorsey to secure the payment of $4,000. By this mortgage it was provided in the usual form that, if default were made in paying the mortgage debt or the interest thereon, it should be lawful for the mortgagee, or for Edwin Warfield, Esq., as attorney, to sell the mortgaged premises at public auction. The mortgage then went on to stipulate as follows: "In the event of a sale of said property under the powers hereby granted, the proceeds arising from such sale" shall be applied "first, to the payment of all expenses incident to such sale, including all counsel or attorney's fees, and a commission to the party making sale of said property equal to the commissions allowed trustees for making sale of property by virtue of a decree of court having equity jurisdiction in the state of Maryland." The property was subsequently conveyed to a Mrs. Kraft subject to the mortgage, and she afterwards granted it to A.A. Omo. In 1897, a default having occurred in the payment of interest, the mortgaged property was advertised to be sold under the power above referred to. On the day of sale, Mr. Omo, the owner of the equity of redemption, in consideration that the sale be stopped, agreed to assume the payment of the mortgage debt, and promised to pay the next day a sum sufficient to settle the overdue taxes, and, in addition, the further sum of $500, to be applied to the payment of interest "and other charges proper under said mortgage." On the following day the parties met, and, with a view of preserving the lien of the mortgage, Mrs. Julia A. Omo, the wife of the owner of the equity of redemption, advanced the money which on the previous day Mr. Omo had promised to pay; and thereupon a receipt was given by the counsel of the mortgagee, in which he agreed that the money then received by him was to be applied in settlement of the unpaid taxes, next "to the costs and expenses and other proper charges under said mortgage attending proceedings for the collection of said mortgage." It was further stipulated that upon the payment of the whole debt and interest the mortgage would be assigned to Mrs. Omo. Various payments were made subsequently but the question in dispute relates to the claim asserted by the mortgagee that Mrs. Omo is under an obligation to pay trustee's commissions and counsel fees before she becomes entitled to an assignment of the mortgage. The circuit court for Prince George's county disallowed the claim for counsel fees, and from the decree so disallowing them the mortgagee has appealed. The circuit court allowed one-half the usual chancery commissions, and from the decree making that allowance Mrs. Omo has appealed. So the question in the first appeal is whether, under the facts stated, Mrs. Omo is liable for and bound to pay the counsel fees charged by the mortgagee's attorney; and the question on the second appeal is whether Mrs. Omo can be required to pay any part of the commissions which the attorney or agent authorized to make the sale would have been entitled to demand if a sale had been made. Of these questions in their order.

Outside of the terms of the mortgage and the stipulations of the agreements entered into between the attorney of the mortgagee on the one hand and Mr. and Mrs. Omo on the other, there is nothing to guide us in deciding these questions. Both claims depend upon the existence of a contractual relation. If there is no contract, there is no claim. If there is a contract there can be no claim not within the terms and conditions of the contract. Upon recurring to the mortgage it will be found that the stipulation with respect to the payment of counsel fees is explicit, and free from any shade of ambiguity. "In the event of a sale *** under the powers hereby granted, the proceeds arising from such sale" are to be applied to the payment of counsel fees. It is obvious that the mortgagors, and those who claim under them by mesne conveyances of the equity of redemption, are bound under this stipulation to pay counsel fees only in the event of a sale of the mortgaged property, and in the event of a sale under the power which the mortgage contains. But that is not all. The payment of counsel fees is to be made out of the proceeds arising from such sale; that is to say, from a sale made under the power of sale. Clearly, then, upon the face of the mortgage the right of the mortgagee's counsel to be paid a fee out of the mortgagor's property is dependent on the condition that a sale of the mortgaged property has been made, and has been made under the power contained in the mortgage. A sale was advertised, but was not made. The condition upon which depended the right to have the fee paid by the mortgagors, or those who hold the equity of redemption, never came to pass; and, of course, therefore the right never matured. Neither the agreement signed on November 9, 1897, nor that bearing date the following day, enlarged the liability fixed by the mortgage. In the first agreement the sum to be paid by Omo is directed, when paid, to be applied to the settlement of taxes, the liquidation of interest, "and other charges proper under said mortgage." In the second the sum received was agreed to be applied "to the payment of unpaid taxes, *** then to the costs and expenses and other proper charges under said mortgage attending proceedings for the collection of said mortgage." Both of these papers refer to the mortgage and to the mortgage we must turn for the purpose of ascertaining what "charges" are "proper under said mortgage," and what are "the costs and expenses and other proper charges under said mortgage attending proceedings for the collection of said mortgage." When we do turn to the mortgage, we find that the counsel fees are proper charges under the mortgage, or are proper charges attending proceedings for the collection of the mortgage, only when a sale has been made in execution of the power contained in the mortgage. A sale under the power is a prerequisite to the allowance of counsel fees as a proper charge attending proceedings for the collection of the mortgage debt. Obviously, then, as no sale was in fact made, there is no warrant for requiring the mortgagors, or the owners of the equity of redemption, to pay the counsel fees claimed by the mortgagee; and the refusal of the court below to allow these fees as a proper charge against the owners of the property was clearly right. Had the agreements of November 9th and 10th provided that the same counsel fees were to be paid, notwithstanding there was no sale, as would have been payable if there had been a sale, a different state of case would have been presented. But there is no such term in the agreements, and it cannot be supplied...