Hays v. Dorsey

Le Grand, C. J., delivered the opinion of this court. This is an appeal from a decree of the Superior court, for Baltimore city, sitting as a court of equity. ' It appears from the record that the appellant, to secure the payment of certain promissory notes, payable to Messrs. Arthur and Miller, of the State of Missouri, executed to the appellee, on the 16th day of March 184S, a mortgage in trust for the benefit of the paj'ees of the promissory notes. The mortgage was executed under the acts of Assembly of 1836, ch. 249, and 1833, ch. 181.

On the 28th March 1851, all the notes being due, the appellee filed his petition praying a decree for the sale of the mortgaged premises, which was accordingly given. To this decree two objections are urged: — 1st. That Arthur and Miller should have been made parties to the proceeding; and 2nd. That the affidavit required by the act of 1833 should have been filed before the signing of the decree by the judge.

Both of these objections are to be solved by (he act. It is an act applicable exclusively to the city of Baltimore. It provides for an ex-parte proceeding; and, so far as the obiention of the decree is concerned, no summons is necessary, nor is any notice required to be given to any one. The rights of third parties are to be inquired into on the question of the ratification of the sale and not, before.

The mortgagor, by executing his conveyance under the act, gives his “assent” to the passage of the decree; and so far as the authority of the court to pass it is involved, it is only necessary to file a petition and the mortgage. In the particular case before us, although the mortgage was executed in trust and for the benefit of ■Afthttr