Darby v. Rouse

Irving, J., delivered the opinion of the Court. Charles A. Eouse and George W. Eouse executed a mortgage to John S. Bowers upon certain real estate in Kent County, Maryland, to secure the payment of five hundred dollars and interest. The mortgage provided that in case of default in payment according to stipulation, John H. Urie was made trustee to sell the property for the payment of the debt, and after paying the mortgage to pay the surplus to the grantors. Default having occurred, the trustee appointed in the mortgage bonded, sold the property, and reported his sale to the Court which ratified the same.

An auditor's report was made, which, after paying the mortgage debt and expenses) awarded the surplus, viz., two hundred and forty-five dollars and thirty-seven cents, to the mortgagors. Before this audit was finally ratified the appellants, on their own behalf and the behalf of other creditors of the mortgagors, filed a petition alleging that appellants had a judgment against the mortgagors rendered-by a Justice of the Peace, and which had been recorded in the-Clerk's office of Kent County, and asking that the surplus proceeds of sale be applied to the jjayment of appellants' claim and the claims of other creditors of the mortgagors who might desire the benefit thereof, and come in and prove their claims. The Court thereon passed an order sending the case to the auditor, and directing him to give notice to the creditors of the mortgagors to file their claims. This was done, claims were filed, and the auditor proceeded to state an account between the creditors of the grantors and the sum awarded them in the first audit, which was ratified and confirmed, except as to the sum awarded to the mortgagors.

The auditor, by direction of counsel, stated two accounts, in one of which he allowed the mortgagor, George W. Rouse, an exemption of one hundred dollars ²⁸ claimed by him, and in the other disallowed that claim. The appellants filed exceptions to the allowance of the exemption claim of George W. Rouse, but the Oourt overruled their exceptions, and ratified the audit making the allowance for exemption; and from the Court's order this appeal was taken. The sole question before us is whether the exemption was properly allowed. We have no doubt that it was.

It is contended on the part of the appellants that this is not a case for exemption because it is not a sale under an execution; and that the law does not puovide for exemption except where property is sold under execution. A contrary view has been taken by this Court in Muhr’s Sons vs. Pinover, Garn., 67 Md., 488 . In that case the Court said: “Construing the Act of 1861 in connection with the provision of the Constitution, it is clear, we think, the Legislature meant to exempt, under all circumstances, the property of the debtor of the value of one hundred dollars from the claims and demands of his creditors.’-’ The Court