Maryland Permanent Land & Building Society v. Smith

Bartol, C. J., delivered the opinion of the Court. Eleven exceptions to the sale made and reported by Thomas W. Griffin, Esq., trustee, were made by the appellee Richard Henry Smith, the mortgagor; all of which were overruled by the Circuit Court. After the proof had been taken two additional objections were filed; the first of which was held by the Circuit Court to be fatal, and for that cause, ordered that the sale be set aside. This exception was as follows: “Because the trustee required terms of purchase not authorized by the decree in demanding a deposit of $300.’’ The terms of sale prescribed by the decree, were “ one-third cash, and the balance in six and twelve months, (or all ⁵²⁰ cash as the purchaser may elect.”) It appears by the testimony of Smith, the appellee, and of Charles H. Beeves, who was present at the sale; that the auctioneer announced that the purchaser would be required to “deposit $300, cash:” or as Mr. Beeves states it, “that $300, would have to be paid cash on the spot, by any one purchasing the property at the sale.” The same witness says, in answer to the 18th interrogatory, that to the best of his belief, the auctioneer said “that he desired no one to bid unless they were able and willing to comply with the conditions as to payment of three hundred dollars.” There is no evidence in the cause that this announcement by the auctioneer prevented any one from bidding, who had gone to the sale for that purpose.

Mr. Beeves says in his testimony, that the first bid was $2500, then $5000 was bid, when he bid $5500, then -a bid was made by Mr. Vickery of $5600, and the property was knocked down. The trustee testifies “that the sale was fair and bona fide in all respects, as far as he could see, or have any knowledge. That there were quite a number of persons present; there was considerable competition in the bidding, and the auctioneer dwelt some considerable time on the last bid, before knocking down the property.” The decree prescribed that one-third of the purchase money should be paid in cash; and the advertisement stated that such were the terms'Of sale. In this state of facts the question presented by this exception, is whether the announcement made by the auctioneer, that a deposit of $300, or an immediate payment of that sum by the purchaser would be required, was such a departure from the terms of the decree, as to prevent the ratification of the sale.

In Gray vs. Viers, 33 Md., 18 , the objection to the sale was that the trustee had not .sold the property to the highest bidder. This Court said (p. 22,) “By the highest ⁵²¹ bidder must be understood a person who makes the highest hid in good faith. The trustee is not bound to accept every bid. He is necessarily clothed with a prudent and sound discretion, and the Court will always sustain him in refusing bids which would defeat and frustrate the very object and purpose of a sale. ’' That rule is applicable here, if the trustee had reason to apprehend, that there were persons present, ready to hid, without the intention or ability