Ahrens v. Ijams

Parke, J., delivered the opinion of the Court. On June 26th, 1920, Plummer A. Ijams and Louise B. Ijams, his wife, the plaintiffs, entered into a contract in writing with Walter T. Ahrens and Edna M. Ahrens, his wife, whereby the defendants agreed to sell, and the plaintiffs to buy, for $12,360, a good and merchantable fee simple title to a lot of land in Baltimore City, with a street frontage of fifty feet and a depth of equal width of one hundred and fifty feet. The plaintiffs paid $1,000 on the purchase price, and had the title examined. An alleged defect was then discovered in the title to á portion of the lot, and the plaintiffs shortly after began a suit in equity to have the contract annulled, and to have that portion of the lot about which there is no question of title declared impressed with a trust in favor of the plaintiffs to the extent of $1,000 paid, with interest from the date of its receipt.

The bill of complaint further-prayed that the defendants might be enjoined from a sale of the property to be affected by the trust until this sum, with interest, be paid to the plaintiffs. The defendants .filed a combined demurrer and answer, and the demurrer was heard and overruled, whereupon an appeal was taken to this court,, which affirmed the decree of the lower court in Ahrens v. Ijams, 156 Md. 1 : The cause was remanded, and the plain ⁴¹⁵ tiffs later amended the bill of complaint by the addition of a sixth paragraph, in which it is charged that, after the filing oí the original bill of complaint and the service of process upon the defendants, the latter had sold the property in question to a certain H. E. Shapiro, and that thereafter the defendants had conveyed the property to a certain Charles S. Burns. After the parties were at issue, the cause was submitted to the chancellor on testimony taken before him and certain agreed facts. By his decree the chancellor annulled the contract of sale of June 26th, 1920; and ordered that the defendants pay the plaintiffs the part payment of $1,000, with interest from August 11th, 1920, adjudging that the portion of the lot agreed to be sold which was within the limits of Baltimore City before the year 1918 he impressed with a lien in favor of the plaintiffs until the aforesaid sum and interest be paid, but if not paid on or before a specified date, together with the costs in the cause, that a named trustee proceed to enforce the payment by a sale in a manner prescribed.

The facts which gave rise to the refusal of the plaintiffs to perform their contract are not disputed. The defendants derived their title from a mortgage deed and its foreclosure in the year 1911. At the date of the execution of the mortgage deed in 1909, and at the time of the foreclosure of the mortgage lien, the dividing line between Baltimore City and Baltimore County passed through the southwestern portion of the lot at five feet and nine feet measured along the back line of the lot and its western side line, respectively, from the point where they meet in a right angle. The intersecting territorial boundary line thus formed a small triangle of an area of twenty-two and one-half square feet, which was located in Baltimore County.

With the exception of this small piece the remaining lot was in Baltimore City. The mortgage deed, therefore, conveyed the lot as lying partly in Baltimore City and partly in Baltimore County, and was duly recorded in both political divisions. The mortgagors declared in the mortgage deed their assent to the passing of a decree by either Circuit Court of Baltimore City for a sale ⁴¹⁶ of the property mortgaged, in accordance with chapter 123, sections 720 to 732 inclusive, of the Laws of Maryland, passed in the year 1898, or any supplements or additions thereto. In the event of any default, the mortgage provided that the sale of the mortgaged property might be made by the trustee or trustees named in such decree as might be passed in conformity with said assent for the sale of the said property; or that a sale might be made by the mortgagees, their executors, administrators, or assigns, or by the attorney or agent specifically named under article 66, sections 6 to 20 of the Maryland Code (1888) Public General Laws or under any of the general or local laws of the State of Maryland relating to mortgages.

When the default occurred, the mortgage foreclosure proceedings were begun in Baltimore City by the filing of the usual petition, and, on the same day, pursuant to the consent contained in the mortgage on the part of the mortgagors, the chancellor forthwith passed, on March 23rd, 1911, his decree for the sale of the mortgaged property and for the trustee appointed to make the sale in the manner prescribed by the decree. The trustee thereupon qualified by filing an approved bond, sold the mortgaged premises, reported the sale, which was duly ratified and confirmed, and executed the deed to the purchaser which purported to convey the entire lot. All the equity proceedings were exclusively in the Circuit Court of Baltimore City and were completed in 1911. The effect of the Annexation Act (Acts 1918, ch. 82) was to bring the entire lot within the limits of the City of Baltimore in 1918, but this legislation has no retroactive effect upon the question for consideration.

Chilton v. Brooks, 71 Md. 445, 454, 455 . It is clear that a mortgage 1-ien on land must be foreclosed in the city or county where the land is situated, unless the land mortgaged is located in two or more counties or in two or more counties and Baltimore City, in which event, by express and necessary statutory authorization, the foreclosure may be conducted in the county or city, as the case may be, where the prescribed proceedings are first begun. Code, art. ⁴¹⁷ 66, sec. 15; Miller’s Equity Proc., secs. 4, 464; Webb v. Haeffer, 53 Md. 187, 190-192 ; Roessner v. Mitchell, 122 Md. 460 . Erom the preceding statement of the facts, it appears that the mortgagees were advised by the deed under which their lien arose that the major portion of the lot was in Baltimore City hut that a small portion lay in Baltimore County.

Furthermore, the mortgagees had at their command two plain remedies which were prescribed hy statute, whereby they could at one time and in one proceedings sell the entire lot, by beginning, either in the city or the county, a hill of complaint for foreclosure in accordance with ancient equity practice, or a sale under the power specifically conferred hy the mortgage upon the mortgagees, their personal representatives or assigns, or their attorney named in the mortgage. Supra; Code, art. 16, secs. 90, 92; art. 66, sec. 15; Baltimore City Charter & P. L. L. (1927), art. 4, sec. 730, p. 438; Miller’s Equity Proc., secs. 445-447, 452-458, 472. Instead of choosing either of these two methods, the mortgagees availed themselves of the third remedy, of a foreclosure under assent to a decree.

By this election the mortgagees, and those claiming title as successors in title to the purchaser at the mortgage foreclosure sale, are bound. The principal question therefore is, Does the equity court of Baltimore City have jurisdiction to sell land situated in Baltimore County under the special, local procedure invoked. Baltimore City Charter & P. L. L. (1927), art. 4, secs. 720-727.

The practice of a foreclosure sale under an assent to a decree originated with the Act of 1833, ch. 181, and has continued to the present. It affords a summary remedy for the benefit of mortgagees. Its operation is limited to cases where the mortgagor has in the mortgage deed declared his assent to the passage forthwith of a decree, in conformity with the provisions of the act, providing, before default, for a sale of the mortgaged premises. The proceeding is ex parte until after the decree and a sale under the decree.

In order to obtain the decree it is only necessary to file the ⁴¹⁸ mortgage and a petition for the decree. ETo summons is necessary, and no notice is required to be given to the mortgagor or any person claiming under him, and neither prior nor subsequent mortgagees or incumbrancers need be made parties. The mortgagee is entitled to the decree at any time after the recording of the mortgage, and without regard to default. If there has been no default, the decree is entered prospectively.

If no default occur, it never becomes effective, but, should there be a default afterward occurring, the decree is enforced. See Miller’s Equity Proc.j secs. 474 et seq. There must be a strict compliance with the provisions of a statute creating a remedy of such summary nature, and its operation should not be enlarged beyond the limits set by the legislative intention. Owens v. Graetzel, 146 Md. 361 .

Ever since its enactment the act has been a local law and applicable exclusively to the City of Baltimore. The act was passed when Baltimore City, although a municipal body corporate, was within and a part of Baltimore county; and the jurisdiction of the chancellor and of the county court was co-extensive with the whole of the territory then forming Baltimore county, yet the remedy conferred is not made coterminous with the boundary of Baltimore county but is expressly limited to land within that part of Baltimore county embraced within the municipal limits of Baltimore City. Miller’s Equity Proc., sees. 2, 3. The legislative intention is disclosed by the language of the statute and particularly by the opening clauses of its second section: “■Sec. 2.

And be it enacted, (in order to- the facilitating the enforcement of mortgages of real property and estate in the City of Baltimore), that in all cases of conveyances by way of-mortgage of lands or hereditaments or chattels real, situate in the City of Baltimore, and when in the said conveyances the mortgagor shall declare his assent to the- passage of a decree as hereinafter mentioned, it shall and may be lawful for the mortgagees or their assigns, at any time after filing the same to be recorded, to submit to the chancellor, or to Baltimore County Court or any Judge thereof, the said conveyances,” etc. ⁴¹⁹ This statute, with amendments which do not affect the pending matter, has consistently been recognized as being a local law. Chief Judge Le Grand said, in Hays v. Dorsey, 5 Md. 99, 101 , “It is an act applicable exclusively to the city of .Baltimore.” The accuracy and 'finality of this