Beetem v. Garrison

Thomas, J., delivered the opinion of the Court. The questions presented by this appeal arise on exceptions to a mortgage sale of real estate. In 1899, the Mount Washington Realty Company of Baltimore County, a corporation, by deed dated the 7th day of April, in consideration of $14,500.00, conveyed to George A. Boyden, of Baltimore County, Maryland, a parcel of land fronting about eleven hundred feet on Washington avenue, “being part of the property known as ‘Mount Washington,’ ”, and being also the first described “tract of land” in a deed, dated March 24th, 1899, from Mary Grace Sauerwein to the Mount Washington Realty Company. The habendum clause of the deed is as follows: “To have and to hold the same unto the said George A. Boyden, his heirs and assigns, in fee simple, sub ⁶⁶⁶ ject to the conditions of the following covenants on the part of the said grantee and the said George A. Boyden for himself, his heirs and assigns, covenants that he will speedily and without unnecessary delay dedicate a strip of land not less than thirty feet wide for a road connecting Washington avenue opposite the Oatholic Church or adjacent thereto with the Electric Bailway Station, and that he will not allow any cottages to he erected on said property fronting on Washington avenue of less cost than three thousand five hundred dollars, nor nearer than fifty feet to the south sidewalk except as to the front east of the proposed new road, where buildings may front immediately on the áidewalk, but shall not be of a cost less than three thousand five hundred dollars, and the said body corporate, the grantor, doth covenant that it will warrant specially the property hereby conveyed and that it will execute such further assurances as may be requisite to confirm these presents.” On the 15th day of December, 1911, Mary Grace Sauerwein and the Mount Washington Realty Company of Baltimore County executed a “confirmatory deed” to George A. Boyden and Sallie L. Gemand.

This deed contains the following provisions: “Whereas by deed dated March 24th, 1899, and recorded among the Land Records of Baltimore County in Liber M. B. M. Mo. 237, folio 277, etc., the said Mary Grace Sauerwein conveyed to the said Mount Washington Realty Company the two tracts or parcels of land in the village of Mt. Washington, therein described by metes and bounds, courses and distances. “And whereas by deed dated April 7th, 1899, and recorded in same liber and number at folio 425, the said body corporate did convey the tract or parcel of land first described in said deed to it from said Mary Grace Sauerwein to George A. Boyden, and by deed dated April 8th, 1903, and recorded as aforesaid in same liber Mo. 270, folio 553, the said body corporate ⁶⁶⁷ did convey the tract or parcel of land secondly described in said deed to it from said Mary Grace Sauerwein to Edward L. Gernand, who has since departed this life, leaving his widow, Sallie L. Gernand, his sole devisee by his last will and testament. “And whereas a doubt has arisen as to the efficiency of the said deeds from Mary Grace Sauerwein and the said body corporate to convey said lands because of a delay in the filing of a certificate of the incorporation of said company in the Treasury Department of the State of Maryland, until the 7th day of April, 1899, although the amount of the bonus tax required by law was deposited in the office of the Comptroller on the 24th day of March, 1899. And to quiet and confirm the titles of said two tracts or parcels of land in their owners this deed is executed. “Now this deed witnesseth that in consideration of the premises and the sum of one dollar, the said Mary Grace Sauerwein and the said Mount Washington Realty Co. of Baltimore County do grant, convey and confirm unto the said George A. Boyden, his heirs and assigns, in fee simple, all that tract or parcel of land in the village of Mount Washington first and at length described in the aforesaid deed from said Mary Grace Sauerwein to said body corporate, and also described at length in the aforesaid deed from said body corporate to said George A. Boyden. “And this deed further witnesseth that in consideration of the premises and of the sum of one dollar, the said Mary Grace Sauerwein and the said Mount Washington Realty Company of Baltimore County do grant, convey and confirm unto the said Sallie L. Gernand, her heirs and assigns, in fee simple all that tract or parcel of land in the village of Mount Washington secondly and at length described in the aforesaid deed from said Mary Grace Sauerwein to said body corporate, and also described at length in the aforesaid deed from said body corporate to said Edward L. Gernand. “Together with the buildings and improvements ⁶⁶⁸ thereon and the rights and appurtenances thereto belonging or in any wise appertaining. “To have and to hold the first described tract or parcel of land unto the said George A. Boyden, his heirs and assigns, in fee simple, and to have and to hold the secondly described tract or parcel of land unto the said Sallie L. Gernand, her heirs and assigns, in fee simple.” On the 23rd day of April, 1913, George A. Boyden and wife executed a mortgage to Mary DcO. Garrison conveying to the mortgagee a parcel of land, fronting about two hundred and thirty-six feet on the south side of Washington avenue, and being a part of the land described and conveyed in the two deeds referred to, to secure the payment of the mortgage debt of $5,000.00 and the interest thereon.

The mortgage authorized the mortgagee, or Hyland P. Stewart, her attorney, in case of default in the payment of the mortgage debt, or in any agreement, covenant or condition of the mortgage, to sell the mortgaged property, “upon giving twenty days’ notice of the time, place, manner and terms of sale, in some newspaper printed in Baltimore County,” etc. In June, 1914, a case was docketed in the Circuit Court for Baltimore County, the attorney named in the mortgage filed an approved bond, and advertised the above-mentioned property conveyed by the mortgage for sale “at public auction ou the premises” on the 23rd of June, 1914. Part of the land referred to was subject to two leasehold estates created by two leases from George A. Boyden and wife to Thomas G. Bloom, and the two ground rents were sold at public sale by the attorney named in the mortgage on the day advertised. The balance of the lot, which fronted about one hundred and sixty-one feet on the south side of Washington avenue, was offered for sale on the same day, hut was withdrawn because the highest bid received therefor was one thousand dollars, which the attorney deemed insufficient. The sale of the ground rents was reported to the Circuit Court for Baltimore ⁶⁶⁹ County, and was finally ratified by the Court on the 11th of October, 1915.

On the 12th of February, 1916, Hyland P. Stewart, the attorney named in the mortgage, and Charles II. Beetem, trustee, entered into a contract under seal by which the balance of the property so advertised was sold at private sale by the attorney named in the mortgage to Beetem, trustee, for $3,500.00, $200.00 of which was paid before the execution of the contract, and the balance was to be paid, according to the terms of the agreement, upon thei ratification of the sale by the Circuit Court for Baltimore County. The agreement provided that upon payment of the balance of the “purchase money” the vendor was to convey to the vendee “a good and merchantable title” to the property. The sale was duly reported to the Circuit Court for Baltimore County, and theroafter the purchaser filed exceptions to the sale on the ground that the property was not sold in compliance with the terms of the mortgage, and that the attorney named therein had no authority to sell it at private sale, and upon the further ground that the attorney named in the mortgage could not convey to the purchaser a good and merchantable title to the property by reason of the “restrictions” contained in the deed from the Mount Washington Realty Company to the mortgagor, of which the purchaser had no notice.

After a hearing, at which evidence was adduced by the plaintiff and defendant, the Court below overruled the exceptions, and ratified the sale, from which action of the: Court the purchaser has appealed. George A. Boyden, the mortgagor, testified that his property is on the south side of Washington avenue’, and that the Mount 'Washington Realty Company owned other property on the northeast side of Washington avenue; that when he purchased from the company he understood that there were to ho no small houses in the neighborhood, and that shortly after he purchased his property from the company, the company sold a lot on the northeast side of Washington avenue, ⁶⁷⁰ and nearly opposite 'his property, to Dr. Lehman, in whose deed there were no restrictions, and that Dr. Lehman erected on his lot “a stable on Washington avenue”; that in May, 1901, he called the company’s attention to the restrictions in his deed, and to the erection of the stable on Washington avenue by Dr. Lehman, and notified the company that if it allowed others to violate the restrictions he would feel at liberty to do the same'; that he did not get a reply to his letter, but that shortly thereafter he met Mr. ILershey, the president of the company, on Lexington street, and called his attention to the matter, and that he said; “All right, Mr. Boyden, I know we can not hold you to this agreement if we permit him to put a stable there.” He further testified that the company allowed Dr. Lehman to erect the stable, and that the stable is still