Queen City Perpetual Building Ass'n v. Price

Alvey, J., delivered the opinion of the Court. This is an application for an injunction to restrain a trustee in insolvency for the benefit of the creditors .of the mortgagor from mating sale of the mortgaged premises, which are alleged to have been sold under a power in the mortgage. ³⁹⁹ The mortgage was made on the 16th of June, 1876, hy Conrad Nolte to the Queen City Perpetual Building Association of Cumberland, for $1820, money advanced hy the association for the redemption of certain shares of stock held hy the mortgagor in the corporation. In the mortgage there is a power, upon default of the mortgagor, to the mortgagee, “ or its attorney, to sell said mortgaged property at public sale for cash, in the city, &c., for the payment, in the first place, of the expenses incident to the sale, and a commission of eight per cent, on said sale ; and in the next place, to pay the fines, insurance, interest, and dues, that may then he due, and so much of said sum of $1820 as may he required to make said weekly payments of interest and weekly dues on said seven shares, until each unredeemed share of said stock is worth $260 in cash.” The default occurring, after giving a bond, and the notice required hy the terms of the power, the mortgagee, on the 28th of August, 1878, put up to public sale the mortgaged property; and hy the report of sale, the mortgagee stated that it did, in pursuance of notice, hy its solicitor and two of its directors, effect a sale to itself of the mortgaged premises for $500. The report of sale, made to the Circuit Court for the county, was hy and in the name of the Association, and was sworn to hy its solicitor only.

This report of sale was ratified hy the Court on the 3rd of October, 1878. The case was referred to the auditor, who stated an account, and after allowing for all costs and expenses, and a commission of eight per cent., the balance of the amount of purchase was distributed to the mortgagee. And in the order ratifying the sale, the Court appointed the solicitor of the mortgagee to make the deed for the property purchased by it; and the deed was accordingly made. In the case of the Frostburg Mutual Building Association vs. Lowdermilk, 50 Md., 175 , this Court held, that sec. 5 of Art. 64, of the Code, which provides that “ in all mort ⁴⁰⁰ gages there may he inserted a clause authorizing the mortgagee, or any other person to he named therein, to sell the mortgaged premises,” does not, when construed in connection with the subsequent sections of the same Article, embrace or apply to a corporation, as the depositary of the power of sale; that that is a personal, as distinguished from a corporate, trust and confidence, requiring of the person authorized to execute the power that he should act under the responsibility of an oatlí; and that if any other person than the mortgagee or his assignee he intended by the parties to the mortgage to execute the power, he or they must he specially named in the power.

This is the plain import and meaning of the statute; and we find no reason for modifying or changing our former conclusion. And it follows, as a necessary consequence of that construction, that the power of sale contained in the mortgage in this case is simply void. It