Berry ex rel. Roberts v. Skinner

Alvey, J., delivered the opinion of the Court. In this case, it being conceded that the mortgagor was sane and competent to contract at the time of the execution of the mortgage, and that default in payment had occurred before proceedings were taken to make sale under the power, and all the preliminary requisites to making the'sale having beeñ complied with, the sole question for our consideration is, whether the subsequent lunacy of the mortgagor, and the proceedings had in1 reference thereto in equity, could have the effect of suspending the execution of the power of sale, by the mortgagee ? The mortgage, made pursuant to the 64th Article of the Code of Public General Laws, contains a power of sale expressed thus: u But in ease of any default being made in any condition of this mortgage, then these presents are hereby declared to be made in trust, and the said Augustus P. Skinner, his heirs, executors, administrators and assigns, or his or 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, and to grant and convey the same to the purchaser or purchasers thereof, or to his, her or their heirs or assigns, which sale.shall be made in the following manner: by .giving at least twenty days’ notice of the time, place, manner and terms of sale, in some newspaper published in Baltimore city; and the proceeds arising from such sale to apply first, to the payment of all expenses incident to such sale-; secondly, to the payment of all moneys ⁵⁷³ owing hereunder, whether the same shall have matured or not; and as to the balance, to pay it over to the said Benjamin Berry, or his heirs or assigns.” It is plain this is not a naked power collateral to the grant, but is a power coupled with an interest in the premises conveyed by the mortgage deed. Being intended for the benefit of the mortgagee, as affording him a more speedy and summary mode of collecting his debt than by ordinary proceeding to foreclose, it is appendant to the estate and is part of the security itself.

It would pass with the estate by assignment of the mortgage debt, and wTould not be affected by the death of the mortgagor, but could be executed after his death. Bergen vs. Bennett, 1 Caines’ Cas., 1; Wilson vs. Troup, 2 Cow., 236 ; Beatie vs. Butler, 21 Mo., 313 ; Varnum vs. Meserve, 8 Allen, 158 ; Bell vs. Twilight, 2 Foster, 500; Bradly vs. Chester Valley R. R. Co., 36 Penn., 151 ; Hunt vs. Rousmanier, 8 Wheat., 174 ; Wright vs. Rose, 2 Sim. & Stu., 323. On the subject of these powers of sale in mortgage deeds, Chancellor Kunt, in vol. 4, p. 147, of his Commentaries, says; “ These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed