Sanders v. McDonald

• Decision Date: 15 May 1885
• Parties: CHARLES J. SANDERS v. JAMES MCDONALD.
• Court: Maryland Court of Appeals

63 Md. 503

CHARLES J. SANDERS v. JAMES MCDONALD.

Court of Appeals of Maryland

May 15, 1885

Appeal from the Circuit Court for Allegany County.

This case, an action of ejectment brought by the appellant against the appellee, was submitted to the determination of the court below upon the following agreed statement of facts, both sides reserving the right to appeal from its judgment:

1st. The property sued for in this case, and described in the declaration, was held and owned on the 16th of May, 1873, by Francis Haley, who held the same by a good and indefeasible title.

2nd. On the 16th of May, 1873, said Haley, by a good and sufficient deed, conveyed said property to James McDonald, the defendant.

3rd. On May 26th, 1873, McDonald and his wife executed a mortgage on said property to the Workingmen's Building Association of Cumberland, to secure the payment of dues, etc., on four shares of its stock of the par value of $1040, held by him and redeemed by said Association. On the 7th of March, 1879 said Association filed its bill of complaint on the equity side of the Circuit Court for Allegany County, to foreclose said mortgage, and a decree was passed for a sale thereof on the 10th of June, 1879, under which decree a sale was made of said property, and the same was purchased by F. Minke, who subsequently sold and conveyed the same to Bridget McDonald the defendant's wife, who now holds such title to the same as Minke acquired by said purchase at trustee's sale. The mortgage aforesaid to said building association contained no seals to the grantors' names, or if there were seals, they were not recorded, and the land records show the same to be without seals. It is agreed that said mortgage, and the proceedings to foreclose the same, shall be read in either or both courts from the printed records in the case of McDonald v. The Workingmen's Build. Asso. of Cumberland, in the Court of Appeals, at October Term 1883, and the opinion of said court in said case may also be read in either court from a manuscript copy; and said printed record, and copy of opinion, shall be as full evidence of the matters contained therein as if a full and regularly certified record had been filed in this case.

4th. On the 11th of April, 1879, McDonald and wife conveyed by deed of bargain and sale to Francis Haley the aforesaid property sued for in this case.

5th. On the 28th of September, 1883, Francis Haley conveyed said property to Charles J. Sanders, the plaintiff in this case.

6th. It is agreed that Sanders, at and before the taking of said deed from Haley, had no actual knowledge of the mortgage given by the said McDonalds to the building association, or of the aforesaid proceedings to foreclose the same.

7th. It is agreed that at the time of Haley's conveyance to Sanders, the defendant, McDonald was in actual possession of the property sued for, living in the same with his wife and family.

Judgment was entered for the defendant for costs, and the plaintiff appealed.

The cause was argued before ALVEY, C.J., YELLOTT, MILLER ROBINSON, IRVING and BRYAN, JJ., for the appellee, and submitted for the appellant.

William S. Bridendolph, for the appellant.

William Brace, for the appellee.

Alvey C.J., delivered the opinion of the court.

This is an action of ejectment brought by the appellant against the appellee, and the case was tried on an agreed statement of facts. The defense is that the title to the property sued for is not in the plaintiff, but in the wife of the defendant, and that defense prevailed in the court below. The questions involved depend upon the effect of the decree of the 10th of June, 1879, passed in the case of The Workingmen's Build. Asso. of Cumberland v. McDonald, 60 Md. 589, for the sale of mortgaged premises (being the real estate sued for in this case), and the deed of the 11th of April, 1879, for the same property, from McDonald and wife to Francis Haley.

The bill for the sale of the mortgaged property was filed in the Circuit Court for Allegany County on the 7th of March, 1879, and the subpoena issued thereon against McDonald and wife was returnable to the second Monday of April, 1879. The subpoena was returned "summoned," but the defendants did not appear; and for want of an appearance an interlocutory decree was taken against them on the 29th of April, 1879. After proof taken, a final decree was passed on the 10th of June, 1879, for the sale of the mortgaged premises, upon default of payment of the mortgage debt, interest and cost, by the day fixed in the decree. The proceedings were taken and conducted as upon a mortgage deed in all respects regular and perfect, and the instrument was so treated by the decree, though it now appears that the instrument was defective for want of seals of the parties signing it. This defect in the mortgage instrument was nowhere adverted to in the proceedings. By the decree it was adjudged that the property mentioned be sold for the payment of the mortgage debt, and that upon such sale made, and the ratification thereof, and the full payment of the purchase money, the trustee, "by a good and sufficient deed, to be executed and acknowledged agreeably to law, should convey to the purchaser of said property, etc., the property to him sold, free, clear and discharged of all claim of the parties to this cause, and of any person or persons claiming by, from or under them."

The sale under this decree was made on the 13th of September, 1879, to Frederick Minke, and which sale was duly reported to the court, and was finally ratified on the 3rd of January, 1880; and though the purchase money appears to have been paid, it does not appear that there was any deed made to the purchaser by the trustee. And if such deed was not in fact made, even though the decree had been passed upon a perfectly legal mortgage, the effect of the sale and the payment of the purchase money would only be to invest the purchaser with the mere equitable estate in the premises sold, and not the legal title. Massey v. Massey, 4 H. & J. 141. And as a general principle, with some few well-defined exceptions, to enable the defendant in ejectment to defend his possession successfully, either upon his own title or the title of a third party, that title must, as a general rule, be shown to be a good and subsisting legal title, and superior in law to that set up by the plaintiff; for otherwise it opposes no legal bar to the right of the plaintiff to recover. Hickey v. Stewart, 3 How. 750. Here, as we have seen, the decree under which the property was sold to Minke, under whom the defendant's wife claims title, required a deed to be made to the purchaser by the trustee, and as it is clear that such case is not embraced within that provision of the Code which gives the decree the operation of a deed (Code, Art. 16, sec. 67, codified from the Act of 1785, ch. 72, sec. 13), there was no such title conveyed to the purchaser under the decree as would enable him or those claiming under him to defend as against the legal title asserted by a third person not a party to or bound by the decree.

But what was the effect of the pending proceedings for the sale of the mortgaged property, and the decree subsequently passed for such sale, upon the title attempted to be conveyed by McDonald and wife to Haley, by the deed of the 11th of April 1879, and the...