McCabe v. Ward

Goldsboj&ough, J., delivered the opinion of this court. The proceedings in this case were instituted in the Circuit court for Baltimore county, on the eighteenth day of Novem ⁵⁰⁸ ber 1859, and are claimed by the appellee to be in conformity with the provisions of the Act of 1826, ch. 192. A mortgage of certain real estate mentioned in the proceedings was executed by the appellants to John F. Shipley, and by him assigned to the appellee. A power of attorney was given by the appellee to R. R. Boarman, Esq., intended to vest in him authority to sell the mortgaged property.

The appellee instituted the proceedings mentioned in the record, in the Circuit court for Baltimore county, and in view of the above Act, his attorney filed with the clerk of said court a copy of the power .of attorney, a.copy of the deed of mortgage, and also the deed of assignment. The attorney, intending to enforce the lien of his principal, executed a bond to the State, designed to be in compliance with the second section of the Act of ,1826. This bond, the condition of which was to abide by and fulfil any order or decree made by Baltimore county court, in relation to the sale of mortgaged property, or the proceeds thereof, and to be and remain as an indemnity to, and for the security of, all persons interested in such mortgaged property, was to be approved by a judge of Baltimore county court, or the clerk thereof, prior to the change of the judicial system of Maryland, bythe present Constitution. The bond in this case was filed with the clerk of the Circuit court for Baltimore county, and approved by him, not conditioned to abide by and fulfil any order .or .decree which should be made bythe Circuit court for Baltimore county, but to abide by and fulfil any order or decree which should be made by Baltimore county court.

The attorney thereafter proceeded to make sale of the mortgaged property, and .reported the same to the Circuit court. The appellants filed objections to the ratification of the sale, which, upon hearing, were overruled, and the- sale finally ratified. Though, by the fifth section of the Act of 1826, ch. 192, it .is declared, that “the court shall have the same power, in the premises, as they now have over sales made by