White v. Malcolm

• Decision Date: 16 May 1860
• Citation: 15 Md. 529
• Parties: AMBROSE A. WHITE and FRANCIS W. ELDER v. JAMES MALCOLM, and others. T. PARKIN SCOTT v. SAME. CHARLES WEBB v. SAME.
• Court: Maryland Court of Appeals

15 Md. 529

AMBROSE A. WHITE and FRANCIS W. ELDER v. JAMES MALCOLM, and others.

T. PARKIN SCOTT v. SAME.

CHARLES WEBB v. SAME.

Court of Appeals of Maryland.

May 16, 1860

An appeal lies from a decree or decretal order passed by the court in a case where a sale of mortgaged property has been made and reported, under the Act of 1826, ch. 192.

The trustee, agent or attorney for the mortgagees, by whom the sale, under the Act of 1826, ch. 192, was effected, may appeal from an order setting aside such sale, because such order injuriously affects his claim for commissions.

The 10th sec. of the Act of 1825, ch. 203, requiring thereafter all mortgage sales to be made in the county where the mortgaged premises are situated, applies only to sales under that Act; it is no objection to a sale under the Act of 1826, ch. 192, that it was made in the city of Baltimore, and not in Baltimore county, where the land was situated.

An advertisement or notice of sale, under the Act of 1826, ch 192, describes the land to be sold as lying in Baltimore county, on or near the Philadelphia road, and refers to the mortgage thereof, and then in describing the five lots or parcels, into which it was divided, gives the number of acres in each, refers to the deeds by which each was conveyed to the mortgagor, and describes the first as about five, the second about seven and a half, the third and fourth about nine, and the fifth about twelve miles out from Baltimore city. HELD:

That there was no ground for setting aside the sales on account of the description of the property given in this notice, being insufficient.

A bond given by the attorney, agent or trustee of the mortgagee where the sale is made by such attorney, agent or trustee, is a compliance with the requirements of the Act of 1826, ch 192, as to a bond.

The Act of 1826, ch. 192, requires, at least, " twenty days notice in two or more of the daily newspapers published in said city, of the time, place, manner and terms of sale," to be given. The sale took place on the 29th of November 1858, and the land was situated in Baltimore county. The advertisement was inserted in two daily newspapers published in Baltimore city, on the 2nd of November, and was continued in these papers, twice a week, from that day to the day of sale. It was also inserted in two weekly newspapers published in Baltimore county, commencing on the 6th of November, and continued weekly till the day of sale. HELD:

That this was a sufficient compliance with the law; the Act does not require twenty days daily notice, or that the notice should be inserted twenty times in two daily papers.

The Act of 1826, ch. 192, prescribes no special terms of sales it does not say whether they shall be for cash or on credit, and the terms of " one- third cash, and the balance in six or twelve months, with interest and security," being reasonable, and not prohibited by law, present no valid objection to a sale.

The fact that the trustee, under the Act of 1826, did not, in his report, state the terms of sale, nor a compliance with them by the purchaser, is not, in the absence of proof of fraud, surprise or undue advantage, sufficient to set aside the sale; the trustee should have been allowed and required to amend his report by correcting the omission so far as the facts would warrant.

When a sale has been made, under a mortgage or decree before the application of an insolvent, the rights of the purchaser will be respected and sustained, and a sale under the Act of 1826, ch. 192, will not be set aside because the mortgagor after the sale and report thereof, and before the ratification, became an insolvent petitioner and had a trustee appointed.

The Act of 1826, ch. 192, provides that all persons interested in the mortgaged property, " may, at any time within twenty days after the sale thereof, file the reasons, if any exist, why the said sale should not be affirmed." HELD:

That this provision does not prevent exceptions after the twenty days, but prohibits the ratification for that period, thus securing that length of time for presenting objections; and exceptions may be filed at any time before ratification of the sale.

APPEALS from the Circuit Court for Baltimore county.

These appeals are taken from an order of the court below, (PRICE, J.,) setting aside certain sales of real estate in Baltimore, which had been mortgaged by Robert Howard to White and Elder. The sales were made under the Act of 1826, ch. 192, by T. Parkin Scott, as attorney, agent or trustee for the mortgagees, and the appellant, Webb, was a purchaser of a part of the property sold. The notice or advertisement of sale is as follows:

" SALE OF MORTGAGED PROPERTY IN THE COUNTY.

Under authority from Ambrose A. White and Francis W. Elder, the undersigned, attorney and trustee, will offer at public sale, at the Exchange sales rooms, No. 19, South Gay street, Baltimore city, on Monday the 29th day of November 1858, at one o'clock, P. M., all the following described lands and premises, situate and lying in Baltimore county, on or near to the Philadelphia road, and which property was mortgaged by Robert Howard and wife to said White & Elder, by deed dated 6th October 1857, recorded in Liber H.M.F., No. 9, folio 138, & c., viz:

1. All that part of ‘ Gay's Enlargement,’ containing seventy-five acres and twenty perches of land, more or less, binding on said Philadelphia road, about five miles out, and particularly described in a deed from White & Elder to said Howard, dated 19th June 1854, recorded in Liber H.M.F., No. 8, folio 525, & c.

2. All that part of lot No. 44, of the Principio Company's lands, about seven and a half miles from Baltimore city, containing one hundred and eighteen acres, three roods and two perches of land, described in a deed from Joshua H. Dulaney and wife to the said Robert Howard, dated 18th September 1845, recorded in Liber A.W.B., No. 357, folio 117, & c.

3. All that part of lot No. 55, of the Principio Company's lands, about nine miles from Baltimore city, binding on the Philadelphia road, containing one hundred and thirty-four acres of land, described in a deed from Tagart and Holloway, trustees, to said Howard, dated 3d December 1852, recorded in Liber H.M.F., No. 4, folio 11, & c.

4. All those lands and premises, about nine miles from Baltimore city, containing seven hundred and eighteen acres of land, described in a deed from Mary Louisa Ridgely and John Glenn, administrators, to said Howard, dated 1st July 1848, recorded in Liber A.W.B., No. 339, folio 137, & c.

5. All that land, about twelve miles from Baltimore city, binding on the Philadelphia road, containing seven hundred and fifty acres of land, described in deed from J. Pennington, executor of Prudence Howard, to said Robert Howard, dated 22d May 1848, recorded in Liber A.W.B., No. 397, folio 45, & c.

The terms of sale are: one-third cash, and the balance in six and twelve months, with interest and security.

T. PARKIN SCOTT,

Trustee and Attorney.

S. H. GOVER, Auctioneer. "

The exceptions and other facts of the case are sufficiently stated in the opinion of this court.

The cause was argued before ECCLESTON, TUCK and BARTOL, J.

T. Parkin Scott and Wm. Schley, for the appellants, argued:

1st. As to the first exception, 1st. That Howard, by the deed of the 25th of January 1858, conveyed all his equity of redemption in the mortgaged premises to the Great Falls Iron Co., eleven months before his application for the benefit of the insolvent laws, so that nothing in that property passed to his trustees in insolvency, and, therefore, they have no standing in court. 3 Bland, 525, Post vs. Marshall. 9 Gill, 341, Higgins vs. Horwitz. 2nd. That although the property not sold will pass to the trustees in insolvency, yet when a sale has been made by a judicial officer, before the insolvency occurred, the rights of the purchaser thus acquired will be respected and sustained by the court. 6 Gill, 226 to 231, Cunningham vs. Schley. 7 Gill, 269, 287, Johnson vs. Dorsey. In the case of Zeigler vs. King, 9 Md. Rep., 330, the land had not been sold, but only advertised for sale, before the application of the insolvent.

2nd. As to the third exception, that the bond required by the Act of 1826, ch. 192, was not, in this case, to be given by the mortgagees, but by the attorney and trustee, which was done. By the 2nd sec. of the Act, the party who is to act or who is authorized to sell, not the mortgagee, is the one to give the bonds, and if a trustee, agent or attorney is appointed by the mortgagee to effect the sale, he is the one to give the bond, and such has been the universal practice under the law. 9 Md. Rep., 357, Wilson vs. Watts.

3rd. As to the fourth exception, 1st. That the sales were made in conformity to the letter and spirit of the Act of 1826. 2nd. That when the Act of 1825, ch. 203, sec. 10, and the Act of 1826, ch. 192, were passed, Baltimore city and county formed parts of the same political divisions of the State. 3rd. That the 10th sec. of the Act of 1825, applies only to sales made in conformity with the special provisions of that Act, and has no application to sales made under the Act of 1826. 7 Gill, 286, Johnson vs. Dorsey. Ibid., 305, Williams vs. Williams.

4th. As to the fifth and sixth exceptions, That the notice given, as admitted in the case, was a compliance with the requirements of the Act of 1826. The Act does not require twenty days daily notice to be given. Sheriffs do not give daily notice of sales. All that this law requires is, that publication should be made twenty days before the time of sale. In some instances, these notices do not appear more than once in two weeks. Daily publication would put the parties to...