Maslin v. Marshall

Schmucker, J., delivered the opinion of the Court. . • .The appeal in this case is from an order of the Circuit Court No. 2, of Baltimore City overruling certain exceptions to the ratification of a sale of mortgaged property. The sale was made by the appellee, as assignee of the mortgage, in the exercise of a power of sale therein contained. - The mortgage was made on October 28th, 1897, from George A. Dubreuil and others to Mary E. Garrett, William F. Frick and Charles F. Mayer, trustees under the will of the late John W.' Garrett to secure certain promissory notes of the mortgagors. ⁴⁸⁴ The mortgage and the notes secured by it were assigned by the trustees to the Safe Deposit and Trust Company of Baltimore, a body corporate, and were by it assigned to the appellee. The mortgage contained a power of sale in the usual form to “ the said William F. Frick, Charles F. Mayer and Mary E. Garrett trustees as aforesaid or the survivors or survivor of them or their successors or successor in said trust,” authorizing them to sell the mortgaged property in case of default in payment of the mortgage debt. A default having occurred the appellee made sale of the mortgaged premises, professing to act in so doing under the power of sale contained in the mortgage, and reported the sale to Circuit Court No. 2 for ratification, when the appellant, who was the purchaser at the sale, excepted to its ratification.

The Court by its order of October 3rd, 1901, overruled the exceptions and finally ratified the sale whereupon the present appeal was taken from that order. Two grounds of exception were urged in argument by the appellant. One was that the power of sale contained in the mortgage was personal to the mortgagees, who were the trustees already named, and their successors in trust under Mr. Garrett’s will, and that it did not pass to, and could not be exercised by, an assignee of the mortgage. The other ground was that even if the power were a transmissible one the assignment of the mortgage to the Safe Deposit and Trust Company which was a corporation destroyed the power because it could not be exercised by a corporation.

Neither of these grounds of exception would have constituted a sufficient reason for refusing to ratify the sale and the learned Judge below properly overruled the exceptions and passed the order of final ratification. The appellant relied especially upon the absence of the word “ assigns ” after the names of the mortgagees in the power of sale as evidence that the power was not intended to pass with an assignment of the mortgage, but we do not agree with him. The authority to include a power of sale in a mortgage is derived from sec. 6 of Art. 66 of the Code which provides ⁴⁸⁵ for the insertion in all mortgages of a clause giving such power to “ the mortgagee or any other person to be named therein.” No mention of, or allusion to, assigns or assignees is made in that connection, and yet further on in the same sentence it is provided that “ where the interests in any mortgage are held under any one or more assignments” the power of sale shall be held divisible and the person “ holding any such interest ’ ’ who first institutes proceedings to execute the power shall have the exclusive right to sell the mortgaged premises, thus showing conclusively that the Code not only contemplates the exercise of the power of sale by the assignees of a mortgage but in certain cases regulates the method of its exercise by them. Furthermore this Court has repeatedly held that a power of sale conferred by a mortgage upon the mortgagee, being intended to afford him a means of promptly collecting his debt, is a power coupled with an