Madigan v. Workingmen's Permanent Bldg. & Loan Ass'n of Talbot County

• Decision Date: 16 January 1891
• Parties: MADIGAN et al. v. WORKINGMEN'S PERMANENT BUILDING & LOAN ASS'N OF TALBOT COUNTY et al.
• Court: Maryland Court of Appeals

20 A. 1069

73 Md. 317

MADIGAN et al.

v. WORKINGMEN'S PERMANENT BUILDING & LOAN ASS'N OF TALBOT COUNTY et al.

Court of Appeals of Maryland.

Jan. 16, 1891.

Appeal from circuit court, Talbot county, in equity.

Argued before ALVEY, C. J., and MILLER, IRVING, BRYAN, McSHERRY, and BRISCOL, JJ.

Wm. E. Stewart and A. L. Tharp, for appellants. Wm. R. Martin, for appellees.

ALVEY, C. J. The question desired to be raised in this case for decision is presented in a very irregular manner; that is, by a demurrer to the answer, instead of exceptions, or setting the case down for hearing on bill and answer. According to the general chancery rule of pleading and practice, if an answer is insufficient in its responses to the allegations of the bill, objections must be taken to it by exceptions filed. And, if it be bad, in substance, as a defense, and further proofs be not required by the plaintiff, the case should be set down for hearing upon the bill and answer, and the matter thus placed upon record will be adjudged accordingly. Story, Eq. PI. §§ 456, 864, 865. Since the transcript has come into this court, an agreement has been filed to the effect that the demurrer shall be treated as an exception to the answer, and, giving a liberal construction to this agreement, we suppose it to be intended that the case shall be so presented as to enable this court to decide the case as upon bill and answer; and we shall so consider it.

The question thus presented is whether the curative act of 1890 (chapter 187) applies to and is effective to make valid the sale made under the power contained in the mortgage from the appellants to the Workingmen's Permanent Building & Loan Association of Talbot County, dated the 5th of November, 1870, and which power of sale was executed, and the report of sale made, and finally ratified, by the circuit court of the county, in 1873. The power of sale was, by its terms, conferred upon "the solicitor of the said Workingmen's Permanent Building & Loan Association," but did not name therein the individual solicitor, as required by the terms of the statute, (Code, art. 66, § 6,) and which has been held by this court to be essential to the validity of the power. Association v. Lowdermilk, 50 Md. 175. By the terms of the act of 1890, c. 187, the act applies to all sales made under powers in mortgages between the 1st day of January, 1860, and the last day of December, 1878, and it declares that every such sale shall "be and the same is hereby made valid and effectual, to all intents and purposes, as fully as if the person so making said sale had been named in said mortgage as the person to make said sale, or to execute said power of sale; and this section shall apply to all cases, whether the person making said sale was named by a mortgagee being a natural person, or by a mortgagee being a body corporate." The mortgage in this case was, in all respects, perfectly valid, and formally executed, and the estate in the mortgaged premises was thereby transmitted to and vested in the mortgagee, and the only defect consisted in the delegation of...