Mays v. Lee

Briscoe, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Baltimore County, passed on the 7th day of July, 1904, sustaining certain exceptions and vacating a sale of mortgaged real estate made and reported by James J. Lindsay, the attorney named in the mortgage. The property conveyed by the mortgage consisted of two separate tracts or farms; one contained 116 acres and five perches, known as the “Michael farm” and was located on the south side of a county road leading from the York turn ²²⁸ pike to the town of Phoenix. The second tract contained 96 acres and 45 perches and was known as.the “Frazier farm,” and was situated on the north side of the county road.

The mortgage was executed on the 20th day of December, 1901, by the appellee, Anna M. Lee, of the State of Illinois to Richard Swormstedt of Baltimore City to secure an indebtedness of thirty-one hundred dollars. There was due on the mortgage, including interest, taxes and insurance, on the day of sale, the sum of thirty-three hundred and seventy-eight dollars and thirty-one cents. The property was advertised and sold as one tract and was purchased by the appellant on the 22nd day of March, 1904, in its entirety, at public sale for the sum of fifty-three hundred and fifty dollars. Subsequently exceptions were filed to the sale upon the ground; first, because of irregularities apparent on the face of the proceedings; second, because of insufficient advertisement; third, because said sale was improperly made, and fourth because of the glaring and gross insufficiency of the price obtained for the property and for other reasons to be assigned.

There are two fatal objections to the sale made by the attorney named in the mortgage in this case, and they appear upon the face of the record. First. The property consisting of two farms should have been sold as separate tracts and not in the entirety. Second.

No more of the mortgaged property should have been sold than was necessary to pay the mortgaged debt and expenses. It appears from the record that the mortgaged property consisted of two separate and distinct farms, one containing 116 acres and known as the “Michael farm” and the other contained 96 acres, and known as the “Frazier farm.” The property was advertised as one farm, containing in the aggregate two hundred and twelve acres, and was sold in its entirety for the sum of fifty-three hundred and fifty dollars to pay an indebtedness of about three thousand and two hundred dollars, due as principal and interest on the mortgage. ²²⁹ The evidence ás set out in the record shows, that the Michael farm alone, if the property had been sold as separate farms, would have sold for a sufficient sum to have paid tbe debt