O'Sullivan v. Buckner

Pearce, J., delivered the opinion of the Court. The order from which the appeal in this case was taken, ³⁴ was passed on April 8th, 1907, and the order for the appeal was filed May 6th, 1907. The record was filed in this Court August 7th, 1907, and the appellee has moved to dismiss the appeal because the record was not transmitted to this Court within three months from the time the appeal was taken. The appellant however has filed an affidavit of the deputy Clerk of the Circuit Court of Baltimore City, in charge of the preparation of this record, that the delay in its transmission was due to a press of work, and his consequent inability to comply with the rule of this Court.

The motion to dismiss the appeal will therefore be overruled. The questions presented arise upon exceptions to the ratification of a sale made under a decree passed in pursuance of assent given in a mortgage under the provisions of the Local Law of Baltimore City. The mortgage was made April 6th, 1906, by Virginia Mason to John Blotkamp, who subsequently assigned the same to the appellee. The exceptions allege: (1) That the title to the property sold is defective and the trustee cannot give a good marketable title.

(2) That the property is described in all the conveyances preceding the mortgage as situated on the southwest side of Colvin street at the distance of one hundred and sixty feet northwesterly from Hillen street, when in fact it is described in said mortgage, and in the advertisement and report of sale, as being distant from Hillen street one hundred and fourteén feet seven and a quarter inches, to which lot, the exceptions allege the mortgagor never had any title, or made any claim of title. (3) That if the purchaser should accept title to the lot as described in these proceedings he would thereby subject himself to the claim of the parties having title to said lot, and would subject himself to expense and litigation in attempting to defend his title. The mortgage, after describing the property as alleged in the exceptions, as beginning one hundred and fourteen feet, seven and a quarter inches from the corner of Hillen street, then contains the following clause, “said property having been ³⁵ in the possession of the said Virginia Mason and her predecessors in title ever since the year 1865, but having been heretofore erroneously described as beginning one hundred and sixty feet from the aforesaid corner of Hillen and Colvin streets.” It appears from the record that after the case was set down for hearing the exceptant declined to offer any testimony in support of his exceptions, whereupon the appellee proceeded to adduce evidence in support of the sale. Mr. Buckner, the assignee of the mortgage, testified that when he was in the office of Mr. Mitnick, the trustee appointed to sell, and when the advertisement was being prepared, Mr. Doxen came in, and told Mr. Mitnick: “It is no use you advertising, you cannot give any title to that property.” He also testfied that when the property was offered, he himself attended the sale, and that Mr. Doxen was present with Mrs. Mason, the mortgagor, and that Mr. Doxen was the first bidder on the property, his bid being $600, that he, Doxen, at that time kept talking about the title, and said, ‘‘can you give us a guaranteed title?” to which the trustee and auctioneer replied that they were not selling a guaranteed title; that the property was knocked down to Doxen, he having bid five dollars over the next highest bid; that as soon as it was knocked* down to him, he turned to Mrs. Mason who gave him $100, the amount of deposit required of the purchaser, and he handed it to the auctioneer,-Mr. Pattison, saying, “this is the only $100 you will get, because we are going to have a fight to the finish;” that he then required them to go with him to the saloon of Mr. O’Sullivan on Front street, and that witness, Mrs. Mason, Mr. Pattison, and Mr. Hollander, went there with him..

Doxen there “wanted us to say we would guarantee the title,” and Pattison said the property was not sold with any guarantee, but according to the way it was advertised, and then Doxen “authorized O’Sullivan to sign — told him to sign,” and he said in the saloon that he represented O’Sullivan the purchaser. Mr. Pattison, the auctioneer in the case, testified that when he was at Mr. Mitnick’s office to get the advertisement, Doxen ³⁶ came in and told Mr. Mitnick that he would not sell the property, that the title was defective, and that he was the only one who knew anything about it, and that Mr. Mitnick