Walker v. Cockey

• Decision Date: 21 May 1873
• Citation: 38 Md. 75
• Parties: ELIAS WALKER v. MARY E. COCKEY and EDWARD D. MCCONKEY, Attorney.
• Court: Maryland Court of Appeals

38 Md. 75

ELIAS WALKER v. MARY E. COCKEY and EDWARD D. MCCONKEY, Attorney.

Court of Appeals of Maryland

May 21, 1873

APPEAL from the Circuit Court for Baltimore County, in Equity.

The mortgage in this case, dated the 26th of August, 1872, was executed by the appellant and his wife, to the appellee, Mary E. Cockey, to secure the payment of certain promissory notes. In case of default in any of the conditions of the mortgage the mortgagee, her heirs, &c., or the appellee, Edward D McConkey, her and their duly constituted attorney or agent were authorized and empowered to sell the mortgaged property. The appellant having failed to insure the improvements on the mortgaged ground, according to his covenant in the mortgage the appellee, McConkey, filed his bond and advertised the property for sale. Thereupon the appellant filed his bill praying that an injunction might issue prohibiting the sale of the mortgaged premises. The allegations of the bill are sufficiently stated in the opinion of the Court. The injunction was issued as prayed. The appellees answered the bill, and proof was taken; and after hearing, the injunction was dissolved. From this action of the Court the present appeal was taken.

The cause was argued before BARTOL, C.J., STEWART, BRENT, BOWIE MILLER and ROBINSON, J.

John H. Ing, for the appellant.

R. W. Baldwin and A. C. Trippe, for the appellees.

MILLER J. delivered the opinion of the Court.

This appeal is from an order dissolving an injunction granted to restrain execution of a power of sale contained in a mortgage. The motion to dissolve was heard upon bill, answer and proof. We shall dispose of the case by considering the several grounds, as alleged in the bill, upon which the injunction or its continuance may be supposed to rest. Most of these may be dealt with in few words.

1st. The averment that the bond given by the party named in the mortgage to execute the power, was not approved as required by the Code, is denied by the answer and is not supported by any proof in the cause.

2d. The averment that there was usury in the transaction is not accompanied by payment, or bringing into Court to be paid, the principal sum actually due, with legal interest thereon, which must be done before the mortgagor can, on that ground and in a case like this, invoke the aid of a Court of Equity to stop the sale by injunction. This Court has decided in Powell and Harrison vs. Hopkins et al., 38 Md. 1, that the exaction of usurious or illegal interest does not invalidate the mortgage or affect the power to sell, and that the Court in which the sale is to be satisfied and the proceeds distributed, has full authority and jurisdiction to adjust the question of interest between the parties.

3d. The allegation that there was no decree of a Court authorizing a sale of the mortgaged property, and that a sale without such decree is prohibited by the terms of the Act of 1870, ch. 450, is also unavailing. That law has no application to cases like the present. Its sole purpose and effect is to modify certain sections in Article 16, relating to the jurisdiction of Courts of Equity, and it in no wise refers to or affects sales made pursuant to powers contained in mortgages executed under the provisions of Article 64 of the Code.

4th. The ground chiefly relied on by the appellant is that there has been no default bringing into operation the power to sell. It is conceded the sale was about to be made because of failure by the mortgagor to comply with his covenant to insure, and, pending the existence of the mortgage, to keep insured the improvements on the mortgaged ground, to the amount of at least one thousand dollars, and to cause the policy to be so framed or indorsed as, in case of fire, to inure to the benefit of the mortgagee. This is the...