Goldberg v. Price

Prescott, J., delivered the opinion of the Court. Mortgagors, who contested every possible stage of a foreclosure proceeding, finally disputed the amount of the commission allowed to the party who conducted that proceeding. The appellant, Bernard F. Goldberg, as attorney named in the mortgage, instituted foreclosure proceedings in the Circuit Court for Howard County for the sale of the mortgaged property, on June 7, 1957. Thereafter until March 28, 1958, he was involved, either as complainant or as respondent, in a continuous series of litigation, court appearances, hearings and arguments, in his efforts to effect the sale of the property.

The property was finally sold for $65,000 to one of the original mortgagors and a certain Elliott Perlin. For all of his said services the attorney claimed the usual commission, plus an additional allowance pursuant to Rule 14 of the local ⁶⁰⁴ court. Upon his petition therefor, accompanied by a certificate of two respected members of the local bar as to what, in their opinion, would be a reasonable commission under the circumstances, the court passed its order allowing him $2,600; and the Special Auditor allowed this sum in his account. The mortgagors filed exceptions and the court, in a memorandum opinion, stated that the effect of the decisions in Shaw v. Smith, 107 Md. 523 , 69 A. 116 , and Griffith v. Dale, 109 Md. 697 , 72 A. 471 , “compels the conclusion that the exceptions were well taken.” He, therefore, signed an order reducing the commission to $1,505 and the attorney has appealed.

In order to determine whether the lower court was right it will be necessary to examine one statute, the terms of the mortgage, Rule 14 of the Circuit Court for Howard County and the decisions referred to above. Code (1957) Article 66, Sec. 5 (a) provides that in all mortgages of land, situated in Maryland, there may be inserted a clause authorizing the mortgagee or any other person named therein to sell the mortgaged property upon such terms and on such contingencies as may be expressed therein. The mortgage involved herein stated that upon foreclosure sale the proceeds should be applied to the payment, among others, of a “commission to the party making the sale * * * equal to the commission allowed Trustees for making sale of property by virtue of a decree of a Court having equity jurisdiction in the State of Maryland.” Thus, it is seen that the statute referred to above clearly and expressly authorizes and validates the quoted provision of the mortgage. As the mortgage calls for a commission equal to that allowed trustees for making sales of property by virtue of a “decree of a Court having equity jurisdiction in the State of Maryland,” we must determine what that is.

It may reasonably be inferred that in using the above quoted phrase, the parties meant a decree of the equity court in the county of