Gustav Adolph Building Ass'n v. Kratz

Irving, J., delivered the opinion of the Court. It appears from this record that the appellant is a corporation, and that on the 29th of August, 1816, the appellee executed a mortgage to the appellant to secure eighteen hundred dollars advanced on twelve shares of the stock of the appellant. The appellee was a member of the corporation, and by the terms of his membership and the provisions of the mortgage, he was to pay to the appellant the weekly sum of six dollars, on every Thursday evening, until such time as the mortgagor should have eighteen hundred dollars to his credit by such payments, and the dividends passed to his credit. He was also to pay all ground rents and taxes, for which the property mortgaged “may become liable when payable.” There was a clause in the mortgage, consenting to decree for sale, “ under the provisions of sections 182 to 192, inclusive, of Article 4, of the Public Local Laws of Maryland, and of Act 1864, ch. 124.” This mortgage was duly recorded, and on the 8th of August, 1818, on the petition of the appellant alleging default, and asking decree, the Circuit Court of Baltimore City passed a decree for sale and appointed Greorge G-.

Hooper, trustee. The trustee bonded and advertised the sale. Appellee then filed a petition alleging he was not in default, and ³⁹⁶ praying an injunction to restrain the sale. The injunction was ordered; and the case was sent to the auditor “to take an account of what, if anything, was due the complainant.” Upon the auditor’s report and statement being returned it was excepted to by the appellee, because it had allowed the trustee one-half commissions and other costs incurred by the proceedings in Court.

The Court sustained the exceptions, and passed an order disallowing the commissions and costs, and ratifying the auditor’s account in all other particulars. The order further provided that the appellant “ upon payment to it of the thirteen hundred and ninety-five dollars and twenty-nine cents, is hereby directed to release said mortgage, allowing credit for such portion of such costs herein disallowed, as have been paid by said Kratz, allowing interest also to date of payment, provided said payment is made within thirty days, until which time the restraining order is hereby continued.” It is from this order that appeal is taken, and these grounds of appeal are assigned in the appellant’s brief: 1. That there was a default on the part of the appellee, and the trustee justifiably advertised the property, and therefore the auditor properly awarded the trustee one-half commissions, under the 39th Rule-of the Circuit Court of Baltimore City, and the complainant the costs of the proceeding. 2. That the Court erred in giving time for the payment of the money by the defendant, which should have been required to be paid immediately. 3.

That the order does not provide for interest on the appellant’s debt until time of payment. We will consider these positions in inverse order. The order of the Court, in our opinion, by proper construction, does allow interest on the appellant’s claim to date of payment. The manifest purpose of the order was ³⁹⁷ to provide for the deduction of such costs as had actually heen paid by Kratz, and which that order disallowed to the appellant from the debt before interest was calculated.

The striking out of the order of that provision for deduction of costs paid by Kratz, which this decision will require, will relieve the order of its supposed ambiguity. The Court