Arban v. Rogers

⁷³⁹ Finan, J., delivered the opinion of the Court. This case is a sequel to McGinnis v. Rogers, 262 Md. 710 , 279 A. 2d 459 (1971) and no useful purpose would be served by attempting to repeat the labyrinthine facts comprising the background for the present litigation. It suffices to say that prior to the dispute giving rise to the appeal in McGinnis , title to the subject property, which had been owned by appellee Rogers since about 1936, was vested in a partnership composed of Florence Urciolo, John L. Arban, and Pascal della Badia (appellants). They had paid $94,600 for the property in 1965, $24,000 of which had been a down payment, and $70,600 of which was represented by a purchase money mortgage to Joseph Urciolo (Florence’s brother-in-law) and Thomas Chance, mortgagees.

The mortgage provided for $1500 quarterly payments of principal and quarterly payments of interest at 4 % per annum. As a result of the litigation giving rise to the companion appeal, appellee Rogers was awarded sole ownership of the mortgage previously held by Joseph Urciolo and Thomas Chance and received a money judgment for the greater portion of the $24,000 down payment. We affirmed McGinnis v. Rogers, supra. None of the payments of either principal or interest due by the terms of the mortgage had ever been made, and appellee Rogers therefore filed the foreclosure proceedings which form the backdrop for this appeal.

Florence Urciolo filed exceptions to the foreclosure sale, which were denied, and the sale was ratified by the Circuit Court for Anne Arundel County (Sachse, J.). Thereafter, the partnership of which Florence Urciolo was one member filed this appeal. 1 ⁷⁴⁰ The appellants contend that the lower court erred in allowing the foreclosure sale to take place while the appeal in McGinnis v. Rogers was pending, because that appeal created a cloud on the title to be conveyed and a sale under such circumstances could not and did not bring about a fair price for the property. 2 In our view, if the price received at the mortgage foreclosure sale was fair, then the question of whether or not the pending appeal created a cloud on title is irrelevant to the rights of the mortgagors in default, and is an objection which would more properly be raised by the purchasers at the foreclosure sale. 3 Inadequacy of price, in and of itself, will not justify a refusal to ratify a mortgage sale, unless the price is so inadequate as to “shock the conscience of the court” or raise a presumption of fraud or irregularity. Silver Spring Development Corp. v. Guertler, 257 Md. 291, 297 , 262 A. 2d 749 (1970); Habib v. Mitchell, 257 Md. 29, 35, 261 , A. 2d 744 (1970); Waring v. Guy, 248 Md. 544, 549 , 237 A. 2d 763 (1968). The evidence indicated that the appellants purchased the property for $94,600 in May, 1965.

It was sold at auction in July, 1970, for $122,000. Kurt Berlin, Esq., a member of the Maryland Bar, testified that he had bid about $115,000 for the property, but had stopped at that point because counsel for Mr. Rogers would not offer “insurable title,” although he had offered “good” title. Mr. Berlin further testified that he would pay more than $122,000 on resale, but not more than $150,000 or $160,- ⁷⁴¹ 000 because of financial limitations of the group