Weiprecht v. Gill

• Decision Date: 11 November 1948
• Docket Number: 19.
• Citation: Weiprecht v. Gill, 191 Md. 478, 62 A.2d 253 (Md. 1948)
• Parties: WEIPRECHT v. GILL et al.
• Court: Maryland Court of Appeals

62 A.2d 253

191 Md. 478

WEIPRECHT v. GILL et al.

No. 19.

Court of Appeals of Maryland

November 11, 1948

Appeal from Circuit Court, Prince George's County; Charles C Marbury, Judge.

Proceeding by James W. Gill and H Loy Anderson, trustees, against Williams Properties, Inc., to foreclose a deed of trust wherein sale was made. From a final order ratifying the sale and directing the distribution of proceeds thereof over his exceptions, Fred J. Weiprecht appeals.

Affirmed in part and reversed and cause remanded for further proceedings.

T Hammond Welsh, Jr., of Washington, D. C. (Wilfred M. Dyer Jr., of Washington, D. C., on the brief), for appellant.

Nicholas Orem, Jr., of Washington, D. C. (T. Howard Duckett and Duckett, Gill & Anderson, all of Washington, D. C., on the brief), for appellees.

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

COLLINS, Judge.

Fred J Weiprecht, appellant, appealed to this Court from a final order ratifying the sale of certain real estate made by James W. Gill and H. Loy Anderson, Trustees, appellees here, and directing the distribution of the proceeds of that sale, over exceptions filed by the appellant.

The final order from which the appeal was taken not only ratified the sale but appointed a special auditor and directed him, after the allowance of certain expenses, to 'allow whatever then remains of the purchase price to The Trust Company of New Jersey, a corporation, which was proven in said proceeding to be the sole owner of all fifty-three (53) notes described in said deed of trust.'

At the hearing in this Court the appellant abandons his appeal from that part of the order ratifying the sale, but contests part of the order distributing the remainder of the purchase price.

On October 9, 1946, Williams Properties, Inc. executed to the appellees a deed of trust on a property located in Prince George's County, Maryland. The property described was a development divided into various lots. The deed of trust recited in part that 'Williams Properties, Inc. is justly indebted unto the Trust Company of New Jersey, Jersey City, New Jersey, in the full sum of Two Hundred Sixty-five Thousand and no/100 dollars ($265,000.00), for which said sum Williams Properties, Inc. has made, executed and delivered unto the said The Trust Company of New Jersey, or order, their fifty-three (53) certain promissory notes of even date herewith, each of said notes being for the sum of Five Thousand and no/100 dollars ($5,000.00), and being numbered One (1) of Fifty-three (53) through Fifty-three (53) of Fifty-three (53), exclusively and separately secured on the property hereinafter mentioned,' (all 53 lots), 'all of said notes being payable on or before one (1) year after date, and bearing interest at the rate of five per centum (5%) per annum until paid, payable on the first day of each and every month after date until said indebtedness is paid; each installment of interest to bear interest after maturity if not then paid at the rate aforesaid, said notes separately and exclusively secured as follows: Note No. 1 of 53 secured on Lot 1, Gwynn Park Subdivision, per Plat Bk. No. 10, folio 75. Note No. 2 of 53 secured on Lot 2, Gwynn Park Subdivision, per Plat Bk. No. 10, folio 75.' (Italics supplied here.) There then follows a similar listing of the remaining 51 notes, each numbered note secured by a particularly numbered lot, as above.

This deed of trust also contained the usual foreclosure clause, which in part recited: 'The trustee * * * 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, * * *'. It also contained the provision that after first paying all costs the money received under the foreclosure was to be applied, 'Secondly, to pay whatever may then remain unpaid of said notes, whether the same shall be due or not, * * * Lastly, to pay the remainder of said proceeds, if any there be, to said Williams Properties, Inc.; its successors or assigns, * * *'. On each deed of trust note the following appeared: 'This is to certify that this is * * * the * * * promissory note * * * described in a certain deed of trust * * *'.

Weiprecht, the appellant, filed a mechanic's lien in the amount of $1,981.59 against 17 lots on which dwellings had been erected and on which the Trust Company of New Jersey had made advances, and for which Williams Properties, Inc. had executed and delivered their 17 notes specifying those 17 lots as security. The appellant also filed mechanic's liens in the amount of $1,260.50 against 13 lots where the buildings were partially completed, and on which no advancements had been made by the note holder.

Williams Properties, Inc., being in bankruptcy, on June 19, 1947, the trustees in bankruptcy assented to an order granting leave to the appellees as trustees 'forthwith to foreclose under the deeds of trust referred to in said petition on all of the said real estate described therein'.

The deed of trust being in default, the trustees foreclosed and sold all 53 lots for the sum of $17,500 to satisfy the debt secured, which, on October 6, 1947, the day of sale, was in a principal amount of $32,700. They first offered each of said 53 lots described in said deed of trust for sale individually and reserved the highest bid on each lot. The lots were next offered for sale in three groups. Group 1 comprised 17 lots on which improvements had been made and loans made under the deed of trust and notes issued. Group 2 comprised the 13 lots here in question on which improvements had been started but on which no loans had been made. Group 3 contained the unimproved lots on which no loans had been made.

It is stipulated and agreed 'When the 53 lots described in the deed of trust mentioned in the above proceeding were offered for sale individually and separately by appellees at the foreclosure sale, no bid was received on any of the lots in Group 2, and no bid was received on any of the lots in Group 3 except Lot 25 for which the sum of $100 was bid. When said lots were offered by appellees in groups as set forth in the report of sale, no bid was received for Group 2 and no bid was received for Group 3. No bid was made by any person present at said sale for any of the above mentioned separate lots or groups with the one...