Waters v. Talbott

• Decision Date: 26 May 1933
• Docket Number: 28.
• Citation: 166 A. 431,165 Md. 70
• Parties: WATERS ET UX. v. TALBOTT ET AL.
• Court: Maryland Court of Appeals

166 A. 431

165 Md. 70

WATERS ET UX. v. TALBOTT ET AL.

No. 28.

Court of Appeals of Maryland

May 26, 1933

Appeal from Circuit Court, Montgomery County; Charles W. Woodward Judge.

Suit between Hatton A. Waters and wife and Otho H. W. Talbott and another, trustees. From an adverse decree, the former appeal.

Decree reversed.

Argued before BOND, C.J., and PATTISON, URNER, ADKINS, OFFUTT DIGGES, PARKE, and SLOAN, JJ.

Walter W. Dawson, of Rockville (A. M. Bouic, of Rockville, on the brief), for appellants.

William F. Prettyman, of Rockville, for appellees.

DIGGES Judge.

The appellees sold certain property located in the vicinity of Silver Spring, Montgomery county, under the power conferred upon them by deed of trust executed by the appellants to secure the payment of a note in the amount of $30,000. The property sold consisted of 27 lots in block 4 of Jordan and Smith's subdivision in Silver Spring. Block 4 is surrounded by improved, paved streets, a short distance from Georgia avenue extended, which street is the principal thoroughfare running through Silver Spring, and only a short distance from the District of Columbia line. The lots are adjacent to water, sewer, and light facilities. It appears that the grantors in the deed of trust were in default of the payments covenanted to be made, both principal and interest the amount remaining due being approximately $10,000. The sale was made on the 23d day of July, 1932; the purchaser being the holder of the note secured by the deed of trust. The purchase price was $5,000. The advertisement of sale was inserted in the Montgomery Press, a newspaper published in that county, for more than 20 days prior to the date of sale and was in these words:

"Trustee's Sale. Of valuable Lots on Improved Streets in Jordan and Smith's Addition to Silver Spring, Maryland. By virtue of the power and authority contained in a deed of trust from Hatton A. Waters and Effie A. Waters, his wife, to Otho H. W. Talbott, now deceased, and William F. Prettyman, trustees, dated June 8, 1925, and recorded among the Land Records of Montgomery County, Maryland, in Liber No. 377, Folio No. 11, the undersigned, as surviving trustee, will on Saturday, July 23, 1932, at 4:30 o'clock P. M. offer for sale on the premises all the land and property described in said deed of trust with the exception of certain lots or parcels thereof which have been released from the operation of said deed of trust. The lots to be offered are known as lots 1 to 12, both inclusive, 16 to 19, both inclusive, 31 to 35, both inclusive, and 37 to 42, both inclusive, Block 4, Jordan and Smith's Addition to Silver Spring, as shown upon a plat of said subdivision, recorded among the Land Records of said County in Plat Book No. 4, Plat 301, said lots composing the whole of Block 4 except lots 13 to 15, both inclusive, and 20 to 30, both inclusive, and lot 36, heretofore released. Said block lies between Montgomery Avenue and Cedar, Bonifant and Fenton Streets in said subdivision, all of which are improved streets. It is a short distance only from the Brookeville pike or Georgia Avenue Extended, in the heart of the Silver Spring Area and convenient to roads, school, stores, etc. There are no buildings upon the lots. Terms of Sale: Cash, of which a deposit of $1,000.00 will be required on the day of sale. The sale will also be subject to overdue taxes, general or special, and unpaid instalments of special street improvement assessment. Conveyancing at the cost of the purchaser. William F. Prettyman, Surviving Trustee."

From this advertisement it will be seen that the 27 lots were advertised for sale and were sold as an entirety; and the sale was made subject to overdue taxes, general or special, and unpaid installments of special street improvement assessments, which assessments were shown by the testimony to be about $500 per lot, payable in 5 installments. Upon report of sale to the court, exceptions thereto were filed upon the ground, first, that the price for which the land sold was grossly inadequate; and, second, that the property was not properly and sufficiently advertised. The power of sale upon default contained in the deed of trust is that the trustees shall have the power, and it shall be their or his duty thereafter, to sell, and, in case of any default of any purchaser to resell the said described land and premises at public auction, upon such terms and conditions, in such parcels, at such time and place, and after such previous public advertisement as the parties of the second part, or the survivor of them, or the trustee acting in the execution of this trust, shall deem advantageous and proper. The advertisement of sale refers specifically to the deed of trust containing the power above recited, and refers to the liber and folio of the land records of Montgomery county wherein the same was recorded, as also to the plat book and the page thereof where the plat of the land to be sold was recorded. The original deed of trust covered all of block 4 of Jordan and Smith's addition to Silver Spring, containing 42 lots, and laid out according to the plat. The sale was of 27 of these lots; the other 15 having been sold prior to the time of the sale now in question. The date of the sale was Saturday, July 23, 1932, and the time at 4:30 o'clock p. m., at public auction.

Upon examination of the deed of trust, it is shown that block 4 upon which the $30,000 lien was placed, was subject to a prior mortgage in the amount of $100,000 to the Maryland Mortgage Company. There is a provision in the deed of trust that, upon the payment of 15 cents per square foot for any portion of the mortgaged property designated by the grantors, the trustees would release such property and apply the said 15 cents per square foot towards securing the release from the lien of the first mortgage. The first mortgage does not appear in the record, and the terms and conditions under which the Maryland Mortgage Company agreed to release this property do not appear, although it may be presumed that their mortgage...