Ensor v. Lewis

Miller, J., delived the opinion of the Court. This appeal is from an order refusing an injunction upon a bill filed on the 27th of March, 1880, by the appellant as trustee in insolvency of Charles H. Mann. The bill avers that Mann applied for the benefit of the insolvent laws on the 18th of Eebruary, 1880, and that the complainant was thereupon on the same day duly appointed trustee for the benefit of his creditors, and gave bond as such, which has been duly approved, and that the insolvent at the same time duly executed a deed, conveying to the trustee all his property, except such as is exempted by law; that among other property of which the insolvent at the time of his application was seized and possessed, ³⁹⁷ there is a hotel and premises situated in Towsontown, known as the “Smedley House,” on which Joseph J. Lewis, a citizen and resident of Pennsylvania, holds a mortgage which was executed to him hy Mann and wife, on the 3rd of April, 1869 ; that this mortgage which was duly recorded in Baltimore County, contains a clause authorizing Enos Smedley to sell the premises upon default made by the mortgagor; and that Smedley has advertised the property for sale at public auction, on the 10th day of April next. The hill then charges that by virtue of his appointment and qualification as trustee, it became the right and duty of the complainant to sell this property, as well as all other property belonging to the insolvent, and that Lewis and Smedley have no right or authority to make sale thereof, or to interfere with the complainant in the administration of his trust, and prays for an injunction restraining them from so doing.

The mortgage referred to is a mortgage to secure the sum of $16,000, with interest, and it contains a clause, as provided in sec. 5, Art. 64 of the Code, authorizing the mortgagee “ or Enos Smedley” to sell the property in case of default. It is admitted that Lewis, the mortgagee, was at the time the mortgage was executed, and is. now a citizen and resident of the State of Pennsylvania, that Smedley is also a citizen of the same State, and that before the property was advertised by him default had been made by the mortgagor in the payment of the money secured by the mortgage. The present case differs from that of