Shaw v. Smith

• Decision Date: 06 March 1908
• Citation: 69 A. 116,107 Md. 523
• Parties: SHAW v. SMITH (two cases).
• Court: Maryland Court of Appeals

69 A. 116

107 Md. 523

SHAW v. SMITH (two cases).

Court of Appeals of Maryland

March 6, 1908

Appeals from Circuit Court, Prince George's County, in Equity Geo. C. Merrick, Judge.

Suits by Frank B. Smith, assignee of the Boys' Home Society of Baltimore, against Alfred G. Shaw. From an order dismissing exceptions to a sale under a mortgage, and from an order allowing counsel fees for defending the exceptions, defendant Shaw appeals. Order dismissing exceptions affirmed. Order allowing counsel fees reversed.

Clarence M. Roberts, for appellant.

Frank B. Smith, pro se.

PAGE J.

There are two appeals in this record--one from the order of the court below dismissing exceptions to the sale made and reported by the assignee of the mortgage, and the other from an order allowing the firm of Gibson & Smith the sum of $100 as a fee for professional services in defending these exceptions. The sale was made under a power contained in the mortgage set out in the record made by Edelin and wife to the Boys' Home Society of Baltimore to secure an indebtedness of $1,000 and interest binding upon certain real property in Prince George's county. Default in the payment of interest having occurred, and the mortgage having been assigned to the plaintiff Shaw, the property was sold to one Parkhurst. Subsequently Alfred G. Shaw, who claimed to hold an interest in the property, filed exceptions to the ratification of the sale, and, these having been overruled by the court and the sale finally ratified, this appeal was taken.

The grounds upon which these exceptions were based may be briefly stated as follows: "(1) Alleged gross inadequacy of price. (2) Because it was improperly advertised in a newspaper which had no circulation in the locality where the property is located. (3) Because it was offered on a day at Marlboro courthouse when purchasers would be likely to be kept away from the sale on 'market day.' (4) Because Mr. Parkhurst, who became the purchaser, was at the time of the purchase an attorney of record for the assignee of the mortgage. (5) Because the assignment of the mortgage was illegal, and the assignee acquired no legal title."

As to the first point, it is no doubt well settled that mere inadequacy of price of itself is not sufficient to set aside a sale made by a trustee, unless it is so gross as to indicate misconduct or fraud on his part, or there is some just cause which the purchaser may be responsible for which affords reasonable ground for supposing that the sale was improperly made. Conroy v. Carroll, 82 Md. 127, 33 A. 423. This property was sold to Mr. Parkhurst, who became the purchaser in the interest of the mortgagees. Of the objection that he was at the time of the sale the "attorney of record for the assignee of the mortgage" it is sufficient to remark that, whether true in point of fact or not, there is no evidence to support the averment. Mr. Parkhurst testifies that he became the purchaser "for himself subject to the ratification of the court." There is nothing that appears from which he can be regarded as having acted unfairly or without proper authority, or whether he was, in fact, proceeding merely as a solicitor to enforce the interest of his client or for his own purposes. Nor does the price offered by him furnish any evidence of such inadequacy as can indicate that there was unfairness in the making of the sale. As to the value of the property the evidence is not satisfactory. One Henry J. Kintz undertakes to give his ideas, to the effect that, "if a man wanted a good farm, it is worth about...