Queen City Perpetual Bldg. Ass'n of Cumberland v. Price

• Decision Date: 30 March 1880
• Citation: 53 Md. 397
• Parties: THE QUEEN CITY PERPETUAL BUILDING ASSOCIATION OF CUMBERLAND v. WILLIAM M. PRICE, Trustee.
• Court: Maryland Court of Appeals

53 Md. 397

THE QUEEN CITY PERPETUAL BUILDING ASSOCIATION OF CUMBERLAND v. WILLIAM M. PRICE, Trustee.

Court of Appeals of Maryland

March 30, 1880

Appeal from the Circuit Court for Allegany County, in Equity.

The case is stated in the opinion of the court.

The cause was argued before BARTOL, C.J., BRENT, GRASON, ALVEY ROBINSON and IRVING, JJ.

A H. Boyd, Johns McCleave and J. J. McHenry, for the appellant.

William M. Price, for the appellee.

Alvey J., delivered the opinion of the court.

This is an application for an injunction to restrain a trustee in insolvency for the benefit of the creditors of the mortgagor from making sale of the mortgaged premises, which are alleged to have been sold under a power in the mortgage.

The mortgage was made on the 16th of June, 1876, by Conrad Nolte to the Queen City Perpetual Building Association of Cumberland, for $1820, money advanced by the association for the redemption of certain shares of stock held by the mortgagor in the corporation. In the mortgage there is a power, upon default of the mortgagor, to the mortgagee "or its attorney, to sell said mortgaged property at public sale for cash, in the city, etc., for the payment, in the first place, of the expenses incident to the sale, and a commission of eight per cent. on said sale; and in the next place, to pay the fines, insurance, interest, and dues, that may then be due, and so much of said sum of $1820 as may be required to make said weekly payments of interest and weekly dues on said seven shares, until each unredeemed share of said stock is worth $260 in cash." The default occurring, after giving a bond, and the notice required by the terms of the power, the mortgagee, on the 28th of August, 1878, put up at public sale the mortgaged property; and by the report of sale, the mortgagee stated that it did, in pursuance of notice, by its solicitor and two of its directors, effect a sale to itself of the mortgaged premises for $500. The report of sale, made to the Circuit Court for the county, was by and in the name of the Association, and was sworn to by its solicitor only. This report of sale was ratified by the court on the 3rd of October, 1878. The case was referred to the auditor, who stated an account, and after allowing for all costs and expenses, and a commission of eight per cent., the balance of the amount of purchase was distributed to the mortgagee. And in the order ratifying the sale, the court appointed the solicitor of the mortgagee to make the deed for the property purchased by it; and the deed was accordingly made.

In Frostburg Build.

Asso. v. Lowdermilk, 50 Md. 175, this court held, that the Code, Art. 64, sec. 5, which provides that "in all mortgages there may be inserted a clause authorizing the mortgagee, or any other person to be named therein, to sell the mortgaged premises," does not, when construed in connection with the subsequent sections of the same Article, embrace or apply to a corporation, as the depositary of the...