Barrick v. Horner

Page, J., delivered the opinion of the Court. The questions involved in this case arise upon exceptions filed by the representatives of John W. Barrick, deceased, to a sale made by Albert N. Horner, sole executor of Alexander H. Horner, under a power con ²⁵⁵ tained in a mortgage from the said Barrick to William Brosius. The mortgage was executed on the twenty-eighth day of March, 1873, to secure an indebtedness from the former to the latter. It contained the following power: — “In trust, and the said Alexander H. Horner, his heirs, executors and administrators and assigns, or Frank H. Horner, their duly constituted attorney or agent, are hereby authorized and empowered to sell all the property hereby mortgaged, or so much thereof as may be necessary, &c.” At the time of the making of the mortgage, Alexander H. Horner had no interest in the estate conveyed, nor in the debt secured, but on the eighth day of May following its execution, it was assigned to him, for value received by the mortgagee.

In 1883, Alexander Horner died, and in 1884, Albert N. Horner and Levi X. Condon, his executors, began proceedings to sell the mortgaged premises under the power. These proceedings were delayed by a suit instituted to enjoin the sale, and it was not until February, 1892, the injunction proceedings having been finally dismissed, and Levi Z. Condon having been discharged as one of the executors, that Albert N. Horner, as sole executor, made the sale and reported it to the Court. The objection to the ratification of this sale, now pressed upon us, is, that the executor oí’ Alexander H. Horner has no right to execute the power. It has repeatedly been held by this Court, that a power of sale in a mortgage, conferred on the mortgagee, is a power coupled with an interest, and so being, is appurtenant to the estate, and passes to the executors, administrators or assigns, and is not lost by the death or insanity of the mortgagor.

Berry vs. Skinner, 30 Md., 567 ; Dill vs. Satterfield, 34 Md., 52 ; Harnickell vs. Orndorff, 35 Md., 341 ; Mackubin vs. Boarman, Trustee, 54 Md., 387 . But where the power is conferred upon a third person, who has no interest in the estate, it is a collateral power. Reid vs. Gordon, et al., 35 Md., 174 . ²⁵⁶ The selection of the donee presumably being made, in that case, with reference to the special skill and ability of the individual selected, or by reason of the personal confidence reposed in him by the parties; it is not an incident of the estate conveyed, does not pass on the decease of the donee to his representatives, and can be executed only by the person named. Frostburg Mutual Build.

Assoc’n vs. Lowdermille, 50 Md., 179 . “For a matter of personal confidence is not to be extended beyond the express words and clear intention of the settlor. ” 1 Lewin on Trusts, 604 (marg.) Alexander H. Horner, being therefore a stranger to the mortgage, held merely a naked power, which on his death could not pass, by operation of law to his legal representatives. Nor can. the fact that he subsequently became the assignee of the mortgage aifect the question. The power not having been conferred upon the mortgagee, no theory can be maintained by which Horner, by merely succeeding to the rights of the mortgagee, could obtain a power which the latter never had. Horner, therefore, in his life-time, was authorized to make the sale only by reason of the fact that he was specially named as the donee of the power, and not because he was the assignee of the mortgagee.

It is clear, therefore, that the right to execute the power cannot vest in his executors, unless they are designated by the instrument in such terms as to bring them within the provisions of the statute. By sec. 6 of Art. 66 of the Code, it is provided that “in all mortgages there may be inserted a clause authorizing the mortgagee, or any person to be named therein, to sell the mortgaged premises, &c. ” The designation in the mortgage is by the word “executors,” and the question therefore is narrowed down to the inquiry whether it is such a “naming ” as brings it within this provision of the Code? In Queen City Perpetual Building Association vs. Price, Trustee, 53 Md., ²⁵⁷ 398 , this Court has said, that “if any other person than the mortgagee or his assigns be intended by the parties to execute the power, he or they must be specially named in the power,” and in Chilton vs. Brooks, 71 Md., 450 , this ruling is cited, with the additional statement, that “the assignee of a mortgagee whoever he may be, (if not a corporation) may execute the power as if designated, by name, while an attorney may do it only when specially named.” An assignee of the mortgage in a case where the power was effectively conferred upon the mortgagee, would take the right to execute the power, as an incident of the estate, but where a stranger is