Knapp v. Anderson

Boyd, J., delivered the opinion of the Court. There is but one question brought before us by this appeal and that is free from any great difficulty. In July, 1897, one Clarence M. Rogers executed a mortgage to the Washington National Building and Loan Association of Washington, D. C, on some property situated in the city oí Baltimore. Default having taken place, Thomas H. Anderson, the attorney named in the mortgage, advertised the property, sold it at public auction to the appellant and reported the sale to the Circuit Court of Baltimore City.

In due time exceptions were filed by the purchaser to the rati ¹⁹⁰ fication of the sale and a pro forma order overruling the exceptions and ratifying the sale was passed. The single point before us is the effect of the provision in the power of sale, which, amongst other things, gives the attorney, in case of default, power “ to sell the hereby mortgaged property at public auction and convey the same to the purchaser or purchasers thereof, which sale shall be made upon giving at least twenty days’ previous notice of the time, place, manner and terms of sale by advertisement in some newspaper published in Baltimore City," etc. Under Art. 4 of the Code of Public Local Laws, title “ City ofBaltimore,” provision is made in sections 692 to 704 (now sections 720 to 732 under the Act of 1898), for the foreclosure of mortgages — most of the sections referring to the practice usually adopted in that city of obtaining decrees by consent, as provided for in the mortgages, but section 702 (now 730) provides that “ any mortgagee of property in the city of Baltimore, his assignee or executor, where a power to sell' is contained in the mortgage, may proceed under Article 66 of the Public General Laws, title ‘ Mortgages,’ but notices of sale under such powers shall be published in two daily newspapers in said city for the period required by law." In point of fact the property was duly advertised in two daily newspapers published in the city of Baltimore— “ The Sun ” and “The Daily Record.” The statute has therefore been complied with and the agreement of the parties as to notice has not only been carried out but more has been done than they agreed should be. But it is contended by the appellant that the power of sale attempted to be given was void, because not in accordance with the law existing when the mortgage was executed, which required the notice to be inserted in “ two daily newspapers’’ whilst the power of sale only required it to be published in “ some netvspaper published in Baltimore City.” In the first place we do not understand that to be the meaning of the statute. It says that when a power to sell is contained in the mortgage, the mortgagee, etc., may pro ¹⁹¹ ceed under Article 66 of the Public General Laws, and section 8 of that Article provides that ‘ ‘ there shall be given such notice as may be stated in such mortgage, or if there be no agrcevmit as to notice, then the party offering the same for sale shall give twenty days’ notice of the time, place and terms thereof, by advertisement in some newspaper printed in the county,” etc. Manifestly, then, the Legislature did not intend by sec. 702 of Art. 4 of the Local Code to prohibit the parties from agreeing as to the notice, which the general law expressly authorizes, but when it added “ but notices of sale under such power shall be published in two daily newspapers in said city,for the period required by law',’ it referred to cases in which the parties themselves had not provided in the mortgage the kind of notice to be given.

That such was the intention of the Legislature is made clearer by the concluding part of the section — “for the period reqiúrcd by law. ” There is no “ period required by law” excepting the twenty days’ notice to be given when the parties have not agreed upon notice, and hence it would seem clear that the Legislature, by making this provision, only intended to refer to such cases, and that section 702 of the Local Law, when taken in connection with section 8 of Art. 66, simply means that when there is a power of sale in the mortgage, such notice shall be given as is therein agreed upon, but if there is no agreement as to the notice, it shall be given in two