Raith v. New Baltimore Bldg. & Loan Ass'n

• Decision Date: 02 March 1922
• Docket Number: 17.
• Citation: 118 A. 67,140 Md. 542
• Parties: RAITH v. NEW BALTIMORE BUILDING & LOAN ASS'N.
• Court: Maryland Court of Appeals

118 A. 67

140 Md. 542

RAITH v. NEW BALTIMORE BUILDING & LOAN ASS'N.

No. 17.

Court of Appeals of Maryland

March 2, 1922

Appeal from Circuit Court of Baltimore City; Charles W. Heuisler Judge.

"To be officially reported."

Petition by Charles Raith against the New Baltimore Building & Loan Association. From an order dismissing the petition petitioner appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE ADKINS, and OFFUTT, JJ.

J Calvin Carney, of Baltimore, for appellant.

Brodie & Sachs, of Baltimore, for appellee.

BOYD C.J.

Three mortgages were given by Clarence C. Tracey and wife to the New Baltimore Loan & Savings Association on lots which formerly belonged to the Manhattan Land Corporation, and were conveyed by it to Tracey. An arrangement was made between the parties by which the sum of $6,500 was loaned by the Loan & Savings Association to Tracey for the erection of a house on each of the three lots, and the Manhattan Land Corporation took a mortgage for the purchase money of the three lots ($3,500), embracing all of them, but subject to the mortgage of $6,500 to the Loan & Savings Association on each of the three. Default having been made by Tracey in the mortgages to that association, foreclosure proceedings were instituted by it on each of them-they being docketed as cases A, B, and C, and the claims filed by the mortgagee show that there was due on each $6,587.50.

Separate decrees were passed, appointing John Holt Richardson trustee to sell the property at public auction. On August 10, 1920, they were so sold, and Charles Raith became purchaser of the properties in cases A and C for the sum of $5,800 and $5,500, respectively-the other property having been sold to another party. The sales were reported the next day to the court, and on September 10, 1920, exceptions to the ratification of the sales were filed by the Manhattan Land Corporation, the holder of the second mortgage.

On September 24, 1920, Charles Raith filed a petition, in which he alleged, amongst other things, that the houses were unfinished, and asked that the exceptions be promptly heard. On October 2, 1920, they were heard, and the same day the sales were finally ratified and confirmed. On October 19 an appeal was entered to this court by the Manhattan Land Corporation, but no appeal bond was given by it. The order ratifying and confirming the sales was affirmed by this court on May 14, 1921, 138 Md. 529, 114 A. 469. Although the petition filed in this case by Raith alleges that that appeal was actively prosecuted by the Manhattan Land Corporation, the records of this court do not support that allegation, as they show that, while that corporation entered its appeal on October 19, 1920, the record was not received by the clerk of this court until January 19, 1921, being too late for the January term.

Charles Raith failed to settled for the properties he purchased, and on December 7, 1920, the trustee filed a petition, praying that they be sold at the risk of Raith. He answered alleging that he was ready to settle, but contended that, pending the determination of the appeal of the Manhattan Land Corporation, the trustee could not deliver a good and merchantable title. The circuit court, however, passed an order on December 27, 1920, directing the properties to be sold at the risk of Raith, unless he complied with the terms of sale on or before the 3d of January, 1921. On January 8, 1921, Raith appealed from that order, and gave an approved appeal bond. This court reversed that order on May 14, 1921 (118 A. 68), and on May 24 Raith filed a petition in the lower court praying that he be relieved from the payment of expenses on said property and interest on the balance of the purchase money from the day of sale to the day of settlement. That was refused by the court, and an order was filed dismissing the petition. From that order this appeal was taken.

The question whether the purchaser should be relieved from paying interest and expenses which he had undertaken to pay is a very different one from that involved in his former appeal, which was whether he could...