Equitable Mutual Land Improvement Ass'n v. Becker

Grason, J., delivered the opinion of the Court. The record in this case shows that a decree had .been obtained for the sale, under two mortgages executed by the appellee to the appellant in pursuance of the provisions of section 782, and the following sections of Article 4 of the Local Code, of certain land in Baltimore City, and that the trustee appointed by the decree to make the sale had advertised the property for sale, when the appellee filed his petition in the Circuit Court of Baltimore City,alleging that he was not in default, and praying that the Court would pass an order suspending the sale and referring the case to the auditor in order that an account between the parties might he stated, so that the appellee might pay the balance secured by his mortgages and have them released. To this petition the appellant demurred, and the demurrer having been overruled, it filed an answer denying the statements of the petition. After hearing, the Court passed an order temporarily suspending the sale and referring the papers to the auditor to state an account ⁶³⁴ as prayed, and from that order this appeal was taken.

It was contended upon the part of the appellant that the Court below could not pass such an order, inasmuch as the proceedings under the above mentioned sections of Article 4 are ex parte until the sale is made and reported, and that objections to the sale cannot be entertained until then in view of the provisions of sections 786 and 787, and the decisions of this Court in the cases of Hays vs. Dorsey, 5 Md., 99 ; Black vs. Carroll, 24 Md., 255 ; Cronise vs. Clark, 4 Md. Chan. Dec., 407, and Schooley and Price vs. Romain, 31 Md., 574 . While section 786 prescribes that allegations may be made against sales which take place under Art. 4 after such sales are reported, and section 787 provides for the action to be taken thereupon by the Court, yet in none of the sections of that Article is there any prohibition against the mortgagor’s taking proceedings to stop the sale, or against the Court granting an order suspending the sale, or even granting an injunction. The ground relied upon in the cases