Frostburg Mutual Building Ass'n v. Lowdermilk

Bowie, J., delivered the opinion of the Court. The appellees on the third of January, 1872, made and executed a mortgage of certain real estate, lying in Erosthurg, Allegany County, to the Erosthurg Mutual Building Association, of said county, to secure the sum of seven hundred and eighty dollars, advanced for the redemption of certain shares in said association, with a condition annexed, that if default should he made in the payment of the interest, or weekly dues for three months at any' one time, or should fail for three months at any one time, to perform any of the obligations or covenants therein contained, it should he lawful for the mortgagee, or its agent or attorney, to sell said property, for the payment in the first place of the expenses incident to the sale, and next of the mortgage debt. The mortgagee filed its bond, in the penalty of $1000, which was approved on the 15th March, 1878, and by its attorney and agent, sold the premises and reported the same to the Circuit Court for Allegany County, sitting in Equity. The sale after the usual course of proceedings, was finally ratified and confirmed on the 22nd April, 1878, and the cause referred to the auditor to distribute the proceeds.

The auditor stated his account, allowing the mortgagee among other items, commission on $301.00, amount of sales, at the rate of 7 per cent., amounting to $21.00. This audit was submitted to the Court upon an agreed statement of facts, filed the 26th June, 1878, which among other things stated that the rule of the Court then in force, and since 1870, allowed to trustees, on the ¹⁷⁷ first $300, 7 per cent., and on the second $300, 6 per cent., etc.; that on the 5th of March, 1877, a rule of Court was passed of the following tenor: “In all cases in which sales of real or personal estate shall he made by an attorney, or agent of mortgagee, or by a trustee, under a power of sale, contained in a mortgage or deed of trust, which does not fix the commissions to be received by such agent, attorney or trustee executing such power of sale, the auditor shall allow such commissions as are fixed by the rules of this Court, to be allowed to trustees under decrees, unless otherwise ordered by the Court;” that the sale made and reported in this case, was made by the mortgagee on the 14th day of March, 1878, under the power contained in the mortgage therein filed; and that all other matters recited in the report of sale are true. It was further agreed, that the Circuit Court of Allegany County, on the 7th June, 1878, passed the following rule, viz: “ In all cases of mortgages with power of sale therein to the mortgagee or his assigns, and the mortgagee or his assignee makes the sale, and reports the same to this Court, there shall be no commissions on the proceeds of sale allowed to such mortgagee, or assignee, unless the same be provided for in the mortgage, or other agreement of the parties. This rule not to apply to the case of a sale made under power by other persons than the mortgagee, or his assignee, though there be no stipulation made in regard to commissions.” It was further admitted, that long prior to the date of the mortgage and from that time, to the date of the last named rule of Court, it had been the usage in the county for the auditor to allow mortgagees making sales under powers to them in mortgages, commissions on the amount of sales, at a rate never less than that allowed to trustees, under the first above recited rule of Court, which it was the invariable usage of the Court to ratify down to the last named rule. ¹⁷⁸ It was further agreed, that the allowance of the