Forest Lake Cemetery of Prince George's County v. Baker

Decision Date22 June 1910
Citation77 A. 853,113 Md. 529
PartiesFOREST LAKE CEMETERY OF PRINCE GEORGE'S COUNTY v. BAKER (two cases).
CourtMaryland Court of Appeals

Appeal from Circuit Court, Prince George's County, in Equity Thomas Verran Clagett and Fillmore Beall, Judges.

Mortgage foreclosure proceedings by Francis E. Baker against George B Starkweather and others. From certain orders, the Forest Lake Cemetery of Prince George's County appeals. Appellee moves to dismiss the appeal. Motion overruled. Orders affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, THOMAS, PATTISON, and URNER, JJ.

J Althens Johnson, for appellant.

M. Hampton Magruder, for appellee.

THOMAS J.

Nos. 24 and 25 appeals were argued and submitted together in this court. In No. 24 (77 A. 858) the appeal is from an order of the circuit court for Prince George's county sitting as a court of equity ratifying a sale of certain land in said county made by David C. Fountain, surviving trustee, under a deed of trust from George B. Starkweather and wife, subject to a mortgage from Samuel Taylor Suit and Rosa Pelham Suit, his wife, to William B. Bowie, and the appeal in No. 25 is from an order of said court ratifying a sale made by Francis E. Baker, assignee of said mortgage, and from an order dismissing the petition of the appellant to strike out the order ratifying the mortgage sale, etc.

Motions were filed by the appellee to dismiss the appeals, but the motion was withdrawn in No. 24, and in No. 25 it appears by the certificate and affidavit of Mr. Richard N. Ryon, clerk of the circuit court for Prince George's county, that he had completed the transcript of the record, according to the directions given him by counsel for the appellant, on the 14th of March, 1910; that it had been paid for, and that he was ready to transmit it to this court; that in the afternoon of that day counsel for the appellee requested him to hold the record for the insertion of additional matter, which was inserted on the 15th day of March; that on the 16th of March counsel for the appellant directed him to insert that portion of the record found on pages 69 to 70 (being little more than one half of a page), containing a description of the land conveyed to the appellant, and requested him not to transmit the record until he had a chance to inspect it, and that it was not transmitted by March 17th because of the order of counsel for the appellant for the insertion of the matter referred to and his request for an opportunity to inspect it. It also appears by the affidavit of counsel for the appellant that he examined the transcript on the 14th of March and requested the clerk to transmit it at once, and that he stated that counsel for the appellee had requested him to hold it until he could look over it with the view of ordering some additions; that, after seeing Mr. Magruder's order, he concluded to have the description of appellant's land inserted; that he gave Mr. Ryon the order to insert the description of the land on the morning of the 16th of March, and that Mr. Ryon promised to let him know that afternoon, about 4:35 o'clock, if the record had been completed; that he did not hear from Mr. Ryon that afternoon, and not until the morning of the 17th, when he met him on "the train for Marlborough," and was then told by Mr. Ryon that he had been obliged to go to Annapolis the night before, and "that the copying had not been done." It therefore appears that the transcript of the record, made in accordance with the directions of counsel for the appellant, had been completed and paid for on the 14th of March, and would have been transmitted to this court within the three months but for the requests of counsel for the appellee and counsel for the appellant for further insertions, and the inability of the clerk to make them in time. It was said in McGonigal v. Plummer, 30 Md. 422, that, where the delay in transmitting the record "seems to be equally attributable to appellee as to the appellant," the appeal should not be dismissed, and for the same reason we think that the motion in this case ought not to prevail, and it must therefore be overruled.

Proceedings to foreclose the mortgage were instituted in the court below on the 7th day of July, 1909, and on the 12th of August, 1909, the appellant by George B. Starkweather, vice president, filed in the mortgage case a petition, alleging, in substance, that the mortgage debt and the amount secured by the deed of trust had been paid, and praying that the petitioner be allowed to intervene; that Francis E. Baker, assignee of the mortgage, be required to answer the petition; that David C. Fountain be made a party, and that he be required to answer, etc.; and that they be enjoined from selling the property of the petitioner under said deed of trust and mortgage. An order was passed requiring Francis E. Baker to show cause why the petitioner should not be allowed to intervene, etc., and the court also passed an order requiring David C. Fountain to show cause why the prayer of the petition should not be granted against him. Francis E. Baker appeared and filed a plea, in which he alleged that the circuit court for Prince George's county, sitting as a court of equity, on the 9th of June, 1909, on the petition of Stephen H. Hines and others against the appellant, appointed William A. Harrison receiver, to take charge of the property of the petitioner; that said receiver filed his bond, as required by the order of said court; that the property of the petitioner was in the possession of said receiver; and that, therefore, the petitioner had no right to file said petition. From an order of court dismissing the petition as to Francis E. Baker the appellant appealed, but the appeal was subsequently stricken out by the court below under section 41 of article 5 of the Code of Public General Laws of 1904. On the 2d of September, 1909, David C. Fountain, surviving trustee, filed his report of sale in No. 3,713 equity, and on the 21st of September Francis E. Baker, assignee, filed his report of sale in No. 3,698 equity. On the 27th of September, 1909, the appellant, by George E. Starkweather, vice president, filed in No. 3,713 equity exceptions to both sales on the following grounds:

(1) Because the mortgage debt and the debt secured by the deed of trust had been paid in the manner as stated in the petition for leave to intervene in the mortgage case.

(2) Because the court in June, 1909, "without notice of any kind to the company, but wholly on the ex parte applications of persons, not one of whom had, or pretended to have, against the company any claim on which he had sought redress at law, appointed a receiver and took possession of the company's property." This exception further charges that William A. Harrison, the receiver, "was not only one of the persons complainant who was desirous of procuring by judicial decree of insolvency a dissolution of the corporate existence of the" appellant, "but he has for many years been most active in his hostility toward the corporation, and toward the persons whose interest give them a controlling authority at the meetings of the corporation," and that the court having denied the exceptant the right to intervene in the mortgage case, and the receiver "not having objected to such sales," the ratification of the sales without any "consideration of the facts" stated in the exceptions "would be tantamount to depriving the protestant of his property without legal process."

(3) "Because the said land at the time of each of the said sales was and since June 10, 1909, had been, in the possession of this honorable court (through a receiver appointed by it on June 9, 1909, in equity cause No. 3689), and was not at the time subject to a foreclosure sale except by the leave of this honorable court, and such leave was neither asked for by the vendors nor was it granted by this honorable court, and said sales are void in law."

(4) "Because the price at which the land was sold *** was grossly and notoriously inadequate."

No exceptions to the sale under the mortgage were filed in the mortgage case, No. 3,689 equity, and that the sale was finally ratified on the 18th of October, 1909, the order reciting: "No cause to the contrary having been shown although due notice appears to have been given as required by the order nisi passed in said cause." But on the 23d of October, the appellant, by George B. Starkweather, vice president, filed a petition in the mortgage case, alleging that he had filed in No. 3,713 equity exceptions to the sale under the deed of trust and the sale under the mortgage, and praying that said exceptions be read and considered as having been duly filed in the mortgage case; that the order ratifying the mortgage sale be rescinded, and that said sale be set aside. In answer to this petition, Francis E. Baker, assignee, denied that the mortgage debt had been paid, and alleged that no exceptions to the sale under the mortgage had been filed in the mortgage case, and that he did not know that exceptions to the mortgage sale had been filed in No. 3,713 equity; that a receiver having been appointed for the appellant, and George B. Starkweather, who represented himself as its vice president, having been adjudged in contempt of court, neither he nor the appellant had a right to file said petition. In No. 3,713 equity, David Fountain, surviving trustee, filed what he called a "plea" to the exceptions of the appellant, in which he averred that the property of the appellant was in the possession of the receiver appointed by the circuit court for Prince George's county sitting as a court of equity, and that George B. Starkweather was in contempt of court, and that neither the appellant nor Starkweather had a right to interpose the...

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