Dorsey v. Dorsey

Miller, J., delivered the opinion of the Court. Waiving a decision of the question whether any of the orders or decrees in this case can be assailed by petition after enrolment, we shall consider the two principal objections urged against them in argument, as if properly presented by this appeal from the order dismissing the appellant’s petition, filed on the 19th of March, 1866. 1st. It has been argued, and the petition avers that the order of the 4th of January, 1864, directing a sale of the mortgaged premises, was illegal and improvidently passed, because passed before the expiration of the period of advertisement required by the order of publication, and without any proof being offered to satisfy the Court that at the final hearing, a sale of the mortgaged property would be ordered. This order is identical in terms with that in the case of Dorsey’s Lessee vs. Garey, ante, 489.

In that case it was decided, upon full consideration and careful examination of the several ⁵²⁸ provisions of the Code in connection with section 129 of Article 16, that that section confers on the Court the power, in all cases coming within its provisions, upon satisfactory proof as therein prescribed, to pass an order of sale at any time after the bill has been filed, without waiting for the appearance or answer of the defendant. That the present case comes within the operation of this section cannot be a matter of doubt. A bill filed for the sale of mortgaged real estate, is a suit instituted for the sale of real estate within the very terms of the section, and within the ordinary and acknowledged jurisdiction of a Court of Equity. The provision in section 125, that in any suit to foreclose a mortgage, the Court may decree a sale unless the debt be paid by a day fixed in the decree, is not only to be read in connection with, and as subordinate to the general provision in section 129, but the having a day fixed for payment previous to a sale, is a privilege which the mortgagor may waive by answer, or by previous assent contained in the mortgage itself, as was done in the present instance, by the stipulation that, if any default were made in the payment of the principal or interest of the mortgage debt, the mortgagee “may forthwith foreclose this mortgage and sell the property hereby mortgaged.” The power thus given to the Court is to be exercised in its discretion, which is not, however, as we have said in the case referred to, a mere arbitrary discretion, but subject to review on appeal in the same case.

The section provides that the Court must be satisfied clearly “by proof,” that at the final hearing a sale will be ordered; but what proof, or how to be taken, is not prescribed. The order upon its face states the Court was so satisfied, and we cannot say the discretion has been improvidently exercised for want of sufficient proof in this respect. ■ The mortgage was executed on the 1st of September, 1857, for the large sum of $24,000, payable in five years, with interest thereon payable annually; and the original instrument was exhibited with the bill filed on the 5th of December, 1863, which charges not only that no part of the principal or interest of ⁵²⁹ the debt had been paid, but that an attachment had been issued out of the same Court on its law side, at the instance of another creditor, and levied upon the mortgagor’s interest in the mortgaged property, and that the mortgagee had been made a defendant in the Equity case in the same Court, of Thompson and others, eestuis que trust, against the mortgagor as trustee. With the allegations of that bill and the proceedings in that case, as well as the attachment, the Judge who passed this order must have been cognizant, as part of the proceedings of his own Court thus brought to his attention. What other proof was adduced to influence the exercise of this discretionary power the record does not disclose, but if these were the only facts or proofs before the Judge, they offered, in our opinion, ample ground for the passage of the preliminary order of sale, and vindicate the proper exercise of the discretion which the law vested in the Court.

But this was a proceeding against the defendant as a non-resident, and the order here, as in Garey’s ease, was passed before the expiration of the time limited by the order of publication for the appellant to appear, and consequently without either actual or constructive notice to him. In that case, where the validity of the order was assailed collaterally, we said: “unquestionably before passing such an order, it would, in most eases, be proper that previous notice should be given to the parties, and in a case where the question is presented by a direct proceeding, authorizing a review of the Court’s action, the want of such notice might be considered sufficient ground for a reversal of the order.” The subsequent proceedings, however, in this case relieve it from all difficulty on this ground, and would fully justify an affirmance of the order upon direct appeal from the final decree. The record shows the trustee did not proceed to sell until after the expiration of the time limited in the order of publication; that he then sold at public sale, after due and ample advertisement, and obtained its full value for the land. Indeed, the weight of testimony in the record in Dorsey vs. Pue, and in the attach ⁵³⁰ ment cases to which we are referred for proof on this subject, is that it sold for as much, if not more, than it would- mow bring in the market. ’ The sale was duly reported and finally ratified by the Court.

A commission then issued, under which were proved the mortgage, and the note evidencing the mortgage debt — proof abundantly sufficient to warrant a •decree for a sale. The auditor then stated an account, distributing the proceeds in part payment of the mortgage debt, leaving a balance of $3,456.40 still due thereon, and this account was finally ratified by the Court, and the trustee directed to distribute the fund accordingly. The order ratifying this account, the only final decree which could be passed after the preliminary order of sale, and the only one, in such a case, contemplated by section 129, was passed on the 6th of December, 1864. In the appellant’s petition, filed more than fifteen months thereafter, no equitable considerations' are presented to induce the action therein asked.

There is no averment that the auditor’s account is incorrect, or that the property was sacrificed, or did not sell for its full value. The existence of the mortgage debt is not denied, nor is there an allegation that any part of the principal or interest thereof had ever been paid, nor is there any offer to redeem or willingness expressed to pay the same, in case the sale should be annulled. It is no part of the purpose or design of the petition to open the decree in order to let in a meritorious defence to the bill. Under such circumstances, there is no ground for reversing the order directing the sale, which we have decided the Court had power and jurisdiction to pass. 2d.

The second objection is that the appellant was not liable to be proceeded against as a no'n-resident. In his petition he avers that about the 1st of July, 1861, being then as now, a citizen of Maryland, he left his home to visit his wife then ill at her father’s in Winchester, Virginia, with the intention of returning in a few days, but owing to the position of the two armies in and about Winchester and Harper’s Ferry, was unable so to do; that his absence was thus prolonged and his ⁵³¹ return thus prevented until he was advised it would no longer be safe to make the attempt • and that he was forced to wait impatiently for the close of the civil war before he could return to his home, although at all times desirous and intending so to do. It is not denied that he continued to reside and remain out of the State from the time he left until the close of the Avar, and upon the proof in the record in Dorsey vs. Pue, there can be no doubt he was at the time this bill was filed and the proceedings thereunder took place, a non-resident Avithin the purview of section 88, Art. 16., of the Code. The term “non-resident” in this section means “a person Avho doth not reside in this State,” as defined in the law relating to attachment, (Art. 10, see. 2,) and in the attachment cases, Ave have, upon the same state of facts decided the appellant was a non-resident.

But it is argued that even if the appellant is to be regarded as a non-resident, still as he was, at the time the bill was filed, residing within the State of Virginia, in a hostile country, and so continued during the late civil war, he must be regarded as an alien enemy, and pending the AA^ar no suit could be rightfully instituted against him