Harnickell v. Orndorff

Grasost, J., delivered the opinion of the Court. On the seventeenth day of July, 1867, the appellant executed a mortgage of certain real estate in Carroll County to John Orndorff, to secure the payment of five thousand four hundred and eighty-eight dollars and twenty cents — one-half of said sum to be paid on the sixteenth day of July, 1869, and the balance on the sixteenth day of July, 1871, with interest thereon annually. The mortgage empowered the mortgagee, his heirs or assigns, to sell the mortgaged premises in the manner and upon the terms therein stated, in default of the payment of either of the instalments, or of the interest ; and default having been made, the appellee, administrator of John Orndorff, who had died, after having complied with the provisions of the Code, and given the notice prescribed by the mortgage, sold the mortgaged premises for four thousand four hundred and thirty-eight dollars and fifty-eight cents, and reported the sale to the Circuit Court for ratification. The appellant filed exceptions to the ratification of the sale, which were overruled by the Court and the sale was ratified; and from the order overruling the exceptions and ratifying the sale this appeal is taken.

The first exception involves the right of an administrator to sell premises mortgaged to his intestate, when the mortgage authorizes a sale by the mortgagee, his heirs or assigns; and in his brief the appellant insists that a power thus given is a personal trust, to be executed only by the person named and described in the mortgage, and clothed with the power to sell, and that this appears from a correct construction of section 5, of Article 64, of the Code. The power to sell given by the mortgagor to the mortgagee is a power coupled with an interest, and will pass to the assignee of the mortgagee, who will be authorized to execute it. Berry vs. Skinner, 30 Md., 573. Before the passage of the Act.of 1825, chap. 203, from which Article 64, of the Code is mainly taken, a mortgagor could, by the terms of his mortgage, clothe the mortgagee or any third party, to be named in the mortgage, with power to sell ³⁴³ in default of payment.

This is a power coupled with an interest in the estate, and will pass to any one who comes to the estate under the mortgagee, whether he be an assignee in fact or in law. 1 Sugden on Powers, 215; 4 Kent’s Com., 147. Article 64, section 20, of the Code provides that on the death of a mortgagee of lands, his interest and estate in the mortgaged premises, together with the debt