Primrose v. Wright

• Decision Date: 16 November 1905
• Citation: 62 A. 238,102 Md. 105
• Parties: PRIMROSE et al. v. WRIGHT.
• Court: Maryland Court of Appeals

62 A. 238

102 Md. 105

PRIMROSE et al. v. WRIGHT.

Court of Appeals of Maryland

November 16, 1905

Appeal from Circuit Court, Queen Anne's County, in Equity; James A. Pearce, Wm. R. Martin, and Edwin H. Brown, Judges.

Petition by Lucie S. Primrose and others against Margaret P. Wright in which defendant filed a petition.From an order directing the correction of an order ratifying a sale of mortgaged property and overruling exceptions to the ratification plaintiffs appeal.Affirmed.

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

Edwin H. Brown, Jr., and John D. Urie, for appellants.

Phil B. Hopper, for appellee.

SCHMUCKER J.

This is an appeal from an order of the circuit court for Queen Anne's county in equity, directing the correction of a clerical error in an order of ratification of a sale of mortgaged property, and overruling exceptions filed to such ratification.The mortgage in question was made on August 1, 1885, by Thomas Q. Primrose and wife to Elizabeth Curry upon a farm in Queen Anne's county.It contained a power of sale in the usual form authorizing Thomas Hill, as the mortgagee's attorney, to sell the farm at public sale in case of default in any of the conditions of the mortgage.Default having occurred under the mortgage, Hill, the attorney therein named, instituted the present proceeding on March 20, 1896, by filing his bond in the circuit court for Queen Anne's county, as required by law, and also a certified copy of the mortgage, and proceeded to sell the farm.He first sold it, after an appropriate advertisement, at public sale for $1,470 to one James A.O. Tucker, who failed to comply with the terms of sale, whereupon he resold it at private sale for $1,550 to Mrs. Margaret P. Wright, and reported the sale to the said circuit court.The usual order of ratification nisi of the sale was passed on April 17, 1896, and was published as required by law.No exceptions to the sale having been filed, it was finally ratified on July 23, 1896, by an order signed by Judge Jos. A. Wickes.This order is in the usual form and is written upon the sheet of paper containing the order nisi, which is attached to the report of sale, and it in terms refers to "the preceding order nisi" and the notice given thereunder and the absence of exceptions, and then finally ratifies "the sale of real estate within reported."Although this order was filed with the other papers in this case in the circuit court for Queen Anne's county, it erroneously states on its face that it was passed by the circuit court for Kent county.Both Kent and Queen Anne's counties are in the Second judicial circuit of the state, and Judge Jos. A. Wickes was at the time of signing the order an associate judge of that circuit.The purchaser paid for the farm, and the purchase money was distributed by an auditor's account which was finally ratified on January 30, 1897.On March 3, 1905, almost 10 years after the final ratification of the sale, the appellants, who are the children of the mortgagor, Thomas Q. Primrose, filed in the case exceptions to the ratification of the sale, relying among other things upon the contention that the error already mentioned by us appearing on the face of the order finally ratifying the sale rendered that order void and of no effect, and that there had therefore never been any ratification of the sale.On March 11, 1905, Margaret P. Wright, the purchaser of the farm at the mortgage sale, filed a petition in the case, alleging that she had only a few days prior thereto discovered the misnomer of the court in the order of final ratification of the sale to her, and asserting that it was a mere clerical error, and praying for its correction.The circuit court, having heard together the appellants' exceptions and the petition for the correction of the error in the order of ratification, was of the opinion that the misnomer of the court in the order referred to was a mere clerical error and directed it to be corrected in their presence, and at the same time overruled and dismissed the exceptions as having been filed too late.From that order the present appeal was taken.

The learned judges below, in our opinion, correctly disposed of the case.The misnomer of the court in the order of final ratification was obviously a mere clerical misprision which under the circumstances in which it occurred, did not affect the integrity of the record or impair the validity of the order.All of the other papers in the proceeding showed distinctly that it had been conducted in the circuit court for Queen Anne's county.The report of sale was correctly entitled "In the Circuit Court for Queen Anne's County" and was addressed "To the Honorable Judges of said Court."After the filing of the report the properly entitled order of ratification nisi was indorsed thereon, and below it, upon the same sheet of paper, was written the final order in question which upon its face refers to both the order nisi and report of sale and professes to finally ratify the sale to which they refer.This court has already been called upon to consider the effect of a somewhat similar misnomer inadvertently occurring in the course of legal proceedings.In Davis v. State,39 Md. 355, a party was indicted for murder in the circuit court for Carroll county, and moved his case to Washington county, where it was tried.The...