Loeffler v. Carey

Sloan, C. J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court No. 2 of Baltimore City dismissing a motion of the appellants for a decree in personam against the appellees, as a result of a mortgagee’s sale. On September 25, 1925, the appellees, Anna L. Carey and Dominic A. Lanahan, together with Joseph C. Carey and Catharine T. Lanahan, not so stated, but evidently ⁶⁵⁰ the respective wife and husband of the other two mortgagors, joined in the execution of a mortgage to the Mechanics Lexington Permanent Building & Loan Association No. 6 of Baltimore City, to secure the payment of the sum of |1,800, on certain leasehold property in Baltimore City. The mortgage was in the usual assent decree form applicable only to Baltimore City.

Code, Public Local Laws, 1930, Art. 4, Sec. 720, Baltimore City Charter (1938), Sec. 832. November 20, 1937, the mortgagee filed its petition, after default by the mortgagors, for an assent decree, for foreclosure, which was passed the same day; a sale was had and on January 31, 1938, the auditor’s account was ratified, from which it appears that there was a net deficiency on the mortgage debt of 8230.14. On August 4, 1942, the appellants, Joseph Loeffler and Michael F. Delea, the appellants, who had been appointed receivers of the mortgagee, the Mechanics Lexington Permanent Building & Loan Association No. 6, petitioned the court to be substituted as parties plaintiff, which was done the same day. The receivers, on October 22, 1942, filed their motion for a decree in personam against the mortgagors for the deficiency shown by the auditor’s account.

A summons was issued for the mortgagors, dedefendants, who demurred, on the sole ground that the period of three years having elapsed from the ratification of the auditor’s account, January 31, 1938, and the motion for a deficiency decree, October 22, 1942, under Section 25, Article 66, and Section 241, Article 16 of the Code of Public General Laws, both sections being identical, were barred by the limitation of the Act of 1939, Chap. 507. The statute amended, Section 232, Article 16, and Section 24, Article 66, Code of 1924, had provided that decrees in personam might be entered at any time within twelve years from the ratification of the auditor’s account ; the Act of 1939, Chap. 507, had substituted three years for twelve. - The question submitted here is whether the twelve-year period applies under the Code of 1924, ⁶⁵¹ or the three-year period of the Act of 1939, Chap. 507, Code of Public General Laws, Art. 16, Sec. 241, and Art. 66, Sec. 24, and whether that Act repeals or amends the provision of the Charter of Baltimore City on the same subject matter, supra, by which the twelve-year period apparently subsists. The appellant contends that the twelve-year period of the City Charter prevails, and the appellees, that the three-year period of the Act of 1939 applies; if the former, then the deficiency decree is effective; if the latter, it