Kirsner v. Cohen

Shehan, J., delivered the opinion of the Court. The appellant, Dave B. Kirsner, appealed from a decree m personam of the Circuit Court of Baltimore City against him for a deficiency after the foreclosure of a mortgage held by Sarah Cohen, appellee and assignee. Questions have been raised as to the validity of this sale because of the inadequacy of price, but no objections were filed to its final ratification; consequently no appeal lies from that action. The purchase price of the property is $1,500, and the amount due on the property was $5,000, with accrued interest, and after the deduction of the sales price of the property from the debt, interest, and costs, there was left due and owing to the appellee a large balance, as shown by the auditor’s account.

There were ⁶⁸⁹ exceptions to the ratification of the audit for the reason that the account was incorrect as to the amount stated to be due on the principal of the mortgage, because of usurious interest charges and payments made by the mortgagor, and for certain other reasons not involved in this appeal. The chancellor, after a hearing on these exceptions, passed a decree allowing an abatement of $1,000 on account of the deficiency ascertained by the audit, and held the deficiency after this allowance to be $3,850.52. The other exceptions were overruled, and the audit was finally ratified and confirmed, from which action there was no appeal. It was for this amount that Sarah Cohen, appellee, filed her motion for a decree in personam against the appellant, who answered, denying the right of the appellee to have a decree for the said balance due and unpaid on the mortgage debt.

The jurisdiction of the court to grant the motion was denied, both as to the parties and to the subject-matter. It was charged that an adequate remedy at law was afforded to the appellant, and that due process of law was denied to him, in that he is entitled to a verdict of a jury in determining the balance due on the mortgage, if any; and that because of the depressed condition of the real estate market a fair sale could not be made, as evidenced by the inadequacy of price; and other reasons assigned and presented in the argument at bar. We repeat that there were no objections to the ratification of the sale, and the questions as to its validity, because of irregularities, inadequacy of price, the depressed conditions of the times, whatever their effect may be, should have been interposed before the ratification of the sale. Bainder v. Sound Bldg. & Loan Assn., 161 Md. 597, 598 , 158 A. 2 .

The final ratification of the audit, first allowing the $1,000 as a credit, and ascertaining the amount due on the principal, being in its nature a final order, if objectionable, there should have been an appeal, and such appeal not having been taken, those objections cannot here be presented as a defense or as a reason why ⁶⁹⁰ the motion for the deficiency decree should not be entertained. There has been nothing presented in the argument or in the record under which the jurisdiction of the court of the subject-matter or the parties may be questioned. This was an ordinary foreclosure proceeding, under contractual authority and power contained in the mortgage, followed by the audit showing the balance due, and an order of the court finally ratifying the same. A proceeding in the usual form to obtain a deficiency decree was then instituted.

In this proceeding the validity of the sale, its final ratification, the audit, and its final ratification, are sought to be reviewed, although no objections were filed to