Heating & Plumbing Finance Corp. v. Glyndon Permanent Building Ass'n

Sloan, J., delivered the opinion of the Court. On September 9th, 1931, Oliver H. Becker and Ruth V. Becker, his wife, executed a mortgage, duly recorded, of a parcel of land owned by them situate at Owings Mills, in Baltimore County, to the Glyndon Permanent Building Association of Baltimore County. The lot was improved by a two-story frame and shingle cottage. When the mortgage was executed and the loan made, the house was equipped with a heating plant known as a “pipeless furnace,” which consisted of a furnace in the cellar, from which hot. air was conveyed to a larger register in the first floor, and a pipe from the furnace to the chimney.

On March 1st, 1933, the mortgagors made a conditional sales contract with Harry Elgin & Company for the furnishing and installation in the house on the mortgaged premises of a hot water heating system, called the “Pressure System.” The conditional sales contract was assigned for value to the Heating & Plumbing Finance Corporation, the appellant, and was recorded the day after its date in the conditional sales records of Baltimore county. The mortgage being in default, the mortgaged property was advertised for sale, and, on October 4th, 1933, sold to the mortgagee. The property was advertised as being “Improved by a two story frame and shingle cottage containing seven rooms, with hot water heat; two car garage, city gas and electric.” The Heating & Plumbing Finance Corporation, as the assignee of the conditional sales contract, filed exceptions to the ratification of the sale, the exceptions were overruled, and the order of ratification passed from which this appeal was taken. The ground of the exceptions was that the hot water ²²⁴ heating system which the exceptant’s assignor, Elgin & Company, had installed was not a fixture and was its personal property.

If this be true, how can the appellant here be heard to except to the sale? The mortgagee only pretended to sell real estate, and that was such property as answered the description of the land, “Together with the improvements thereon and the rights and appurtenances thereto belonging or appertaining.” It made no difference what the mortgagee advertised, it could not sell, and the purchaser would not take, any more property than the mortgage conveyed. Consolidated Gas, Electric Light & Power Co. v. Ryan, 165 Md. 484 , 169 A. 794 . The appellant can have no standing in this case except on the theory that the hot water heating system was no part of the realty, and if this be so it has no interest in the proceeds of the sale, and cannot intervene as an exceptant, for objections can only be made by persons “interested in the property.” Code, art. 66, sec. 9; Warfield v. Ross, 38 Md. 90 ; Bentley v. Beacham, 91 Md. 678 , 47 A. 1024 ; Kinsey v. Drury, 141 Md. 684, 689 , 119 A. 646 .

The appellant, in its brief, says its position is much stronger than that of the exceptant in Chew v. Baker, 133 Md. 639 , 105 A. 756 . In that case the exceptant was a creditor of a deceased owner of an undivided interest in the mortgaged property, whose personal estate was insufficient to pay his debts, and the creditor therefore would have recourse against his real estate. This all means that, the appellant having no interest in the mortgaged property, the order appealed from should be affirmed, as any remedy it may have is at law by replevin. Inasmuch, however, as the