Haskie v. James

Fowler, J., delivered the opinion of the Court. There are thrée appeals in this record, but they all present the same questions. A motion has been filed to dismiss the appeal of Thomas W. Griffin, trustee, which, in accordance with our ruling in the case of Lurman and Fowler, Trustees vs. Hubner, ante page 268, must prevail. It was held in the case just named that a trustee appointed by a Court of equity to sell real estate has no right to appeal from an order setting aside a sale which he had reported for ratification.

And that is this case, so far as relates to the appeal of the trustee, Thomas W. ⁵⁷⁰ Griffin. But, as we have said, the same questions brought here by the trustee’s- appeal are presented by the other two appeals, and we will proceed to consider them. They arise upon exceptions to a sale made under a mortgage in the form usual in Baltimore City. A decree was passed on the 17th June, 1891, for the sale of the mortgaged premises, and the sale was had on the 27th of the following month.

After the decree was filed, and before the day of sale, the mortgagee filed his statement of account, which was in the following form: Lang vs. Hershman. ) In the Circuit Court of Baltimore City . Mortgagee’s Statement of Account. George C. Hershman, mortgagor, To Frederick Lang, mortgagee, Dr. 1886, Jany. 27. For cash loaned, being princi-” pal mortgage debt under mortgage, filed in the above case, $4,500 00 To interest due and unpaid to July 27th, 1891, 419 10 Total amount of mortgage indebtedness, . $4,919 10 State oe Maryland, Gity of Baltimore, to wit: I hereby certify, that on this 17th day of July, 1891, before me, a justice of the peace of the State of Maryland in and for said city, personally appeared Frederick Lang, the above named mortgagee, and made oath in due form of law, that the above statement of account is just and true as stated, and that no part of the money there shown to be due him has -been paid, or any security given therefor, except the aforesaid mortgage and mortgage notes.

Wm. S. Gorton, J. P. ⁵⁷¹ It will be observed that the mortgage note described in the mortgage was not filed with or as part of this account, though it is mentioned in the last clause of the affidavit in the allegation that no security had been given for the mortgage debt 1‘except the aforesaid mortgage and mortgage notes. ” .The appellee, who is the holder of a second and third mortgage upon the two pieces of property mentioned in the first mortgage, excepted to the sale reported by the trustee upon the following grounds: First, that the mortgage note should have been, but was not, made a part of the record or presented to the Court for inspection before the decree was passed, and that therefore the decree was improvidently passed, and is without legal authority. Second, that the mortgage note was not exhibited before the sale in connection with the affidavit of claim; and, third, inadequacy of price. The first exception is not before us, for it was overruled, and no appeal has been taken by the exceptant.

It is nécessarily involved, however, in the second exception. The Court below sustained the other two exceptions, taken together, and from this ruling.Theresa Haskie and John Betz have each appealed- — -they being purchasers ot the mortgaged property at the sale set aside by the order appealed from. The narrow question is therefore presented whether the failure on the part of the mortgagee to exhibit the mortgage note with his account, after the decree, and before the sale, is sufficient ground for setting tlie sale aside;