Van Wagoner v. Nash

• Decision Date: 08 January 1947
• Docket Number: 30,53.
• Citation: 50 A.2d 795,187 Md. 410
• Parties: VAN WAGONER v. NASH.
• Court: Maryland Court of Appeals

50 A.2d 795

187 Md. 410

VAN WAGONER v. NASH.

Nos. 30, 53.

Court of Appeals of Maryland

January 8, 1947

Appeals from the Circuit Court, Prince George's County; John B Gray, Jr., Judge.

Proceeding by Robert S. Nash, assignee, against John Carlton Van Wagoner to foreclose a mortgage.From order ratifying and confirming sale of the mortgaged property, and from order in nature of a writ of habere facias possessionem, the defendant appeals.

Appeal from first order dismissed, and second order affirmed.

Adrian P. Fisher and George R. Linkins, both of Washington, D. C., for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINSGRASON, HENDERSON, and MARKELL, JJ.

GRASON, Judge.

CasesNo. 30andNo. 53, this term of court, involve a proceeding to foreclose a mortgage.The mortgage contained a provision that if default occurred the entire debt secured thereby became demandable and it 'shall be lawful for the said party of the second part (mortgagee), his heirs or assigns, * * * at any time after such default, to sell the property hereby mortgaged * * *.'The mortgage was a purchase money mortgage and was given to secure the prompt payment of three notes, aggregating $25,000 (the amount of the mortgage), payable respectively in two, three and four years after date.The mortgage was 'a condition precedent to the making of said noties.'It was dated the 17th of April, 1926, the notes of even date, and executed by J Carlton Van Wagoner to Wilbur F. Nash.

Default having occurred, the foreclosure proceeding was instituted in the Circuit Court for Prince George's County on October 9, 1945, by Robert S. Nash, assignee of Wilbur F. Nash.Sale was made under the terms of the mortgage and reported to the court, to which exceptions were filed by Van Wagoner(appellant), which were overruled, and the sale ratified and confirmed on the 12th day of February, 1946.An appeal was filed to this court from said order, which constitutes case No. 30.This appeal was not taken until May 10, 1946.There are two affidavits contained in the record--one by Van Wagoner and the other by Fisher, a solicitor for the assignee in these proceedings.Van Wagoner states therein that the final order in this case was obtained by mistake, in that he was not given notice of the time when the chancellor passed the formal order ratifying and confirming the sale, and he claims that he was entitled to notice; also that immediately after the signing of the order the special auditor took the papers in the case many miles distant from the Clerk's Office, and for this reason he did not take his appeal within thirty days from the date of the order.Fisher states in his affidavit that the opinion of the chancellor was filed February 7, 1946, and, by the direction of the chancellor, a copy was mailed to Samuel J. McWilliams solicitor for Van Wagoner, who admitted to Fisher that he received the copy of the opinion.

It was the duty of Van Wagoner to follow the case.Certainly the auditor did not take the current equity docket, which contained the docket entries in the case, from the Clerk's Office, and a reference thereto would have shown an entry of the order of February 12, 1946, dismissing the exceptions and ratifying and confirming the sale.The order merely gave effect to the Chancellor's opinion of which he already received a copy.We do not think appellant has shown any reason for not entering his appeal in this case within the time prescribed by rule five of this court, which limits him to thirty days from the date of the filing of the order appealed from, to wit, February 12, 1946.The appeal was not taken until May 10, 1946, nearly three months after the date of the order, and it must be dismissed.

After the appeal was taken in case No. 30the court passed an order, on June 11, 1946, in the nature of a writ of habere facias possessionem, from which the appeal in case No. 53 was taken.After the ratification of the sale by the court, no supersedeas bond was filed to stay proceedings.Article 5, section 33,Code 1939.In the brief filed by appellant, in case No. 53, various grounds are urged for the reversal of the chancellor's action in this case.It is contended that the chancellor was without jurisdiction to pass the order appealed from, because the mortgage is a specialty and limitation applies by virtue of section 3 of Article 57,Code 1939, as amended by the Acts of 1945, Chapter 467.This section provides that none of the instruments referred to therein, or other specialty, 'shall be good and pleadable, or admitted in evidence * * * after * * * the debt or thing in action is about twelve years' standing * * *.'This section, and the cases cited by the appellant, are not applicable to a lien, such as a mortgage, which can only be barred by a lapse of twenty years.Baltimore & O. R. Co. v. Trimble,51 Md. 99, at page 110;Miller v. Horowitz,172 Md. 419, at page 432, 191 A. 906;Jones an Mortgages, 7th Ed., Vol. 2, sec. 1204, at page 854.SeeCunningham v. Davidoff, Md.,46 A.2d 633, 164 A.L.R. 1383.

On April 30, 1946, on petition of the purchaser at the mortgage sale for the writ of possession, the chancellor passed a nisi order on the appellant to forthwith deliver the premises sold to Wilbur F. Nash, unless cause to the contrary be shown on or before the 10th day of May, 1946, provided copy of the order be served on appellant before May 5th, 1946.Appellant appeared and answered the petition.The petition referred to was grounded on Article 75, section 99,Code 1939.This section, in substance, provides in cases where property is sold at mortgage foreclosure, the person in possession shall deliver the premises to the purchaser, and a judge, upon application in writing, sworn to by the purchaser, unless cause to the contrary be shown by the party in actual possession, within not less than fifteen days, nor more than thrity days from the filing of the application, shall issue a writ in the nature of a writ of habere facias possessionem.Appellant contends this section prohibited him from appearing in court at any time before May 15th or after May 30, 1946, for the purpose of showing why the writ should not issue against him.The chancellor passed the order appealed from on June 11, 1946.The argument advanced is that as the section gave him fifteen days to appear, and as the nisi order was dated April 30, 1946, the appellant, by the section referred to, was prevented from appearing until May 15, 1946, and he was also prevented from appearing after May 30, 1946, thirty days after the passage of the nisi order.The appellant answered the petition on May 10th and he appeared at the hearing of the matter on June 11, 1946.He claims he did not have thirty days within which to move from the premises.He had notice when he answered on May 10th, and as the matter was not heard until June 11th, he had over thirty days to arrange to move from the premises, in the event he was ordered so to do.The section provides that the judge 'shall' issue the writ 'within not less than fifteen days nor more than thirty days from the filing of such application,''unless good cause to the contrary be shown by the party * * * in actual possession.'This is the clear meaning of the section, and if the contention of the appellant is adopted, the matter would be prolonged indefinitely.As the appellant in fact had, at least, more than thirty days to arrange to move from the premises after he appeared to and answered the petition praying for the writ, it is hard to see how he was prejudiced because he did not have thirty days to move, which he claims of right.

The next point is trivial.The petition of the purchaser for possession of the property sold did not exhibit the deed to him from the assignee.This omission, it is claimed, vitiates the proceeding.There was no question that the deed was given by the assignee, accepted by...