Richardson v. Owings

Boyd, J., delivered the opinion of the Court. The appeal in this case was taken from an order of the Circuit Court of Baltimore City ratifying a sale made by a trustee appointed to sell the property mortgaged by the appellants to Charles Herbert Richardson, executor of Matilda ⁶⁶⁴ M. Richardson. The mortgage was given to secure four promissory notes, each being for the sum of eleven hundred dollars. One of them was assigned to Annie M. Owings, another to John A. Richardson and the other two to C. Herbert Richardson, and William K. Richardson, trustees.

The appellees filed a petition, and with it the original mortgage, alleging that one of the notes secured by the mortgage had been assigned to each of them, that default had been made in the payment of the mortgage debt and interest and praying the Court to pass a decree for the sale of the mortgaged premises, in accordance with the provisions of Art. 4, sections 694 to 704 inclusive of the Public Local Laws. A decree was passed in the usual form appointing Oscar L. Quinlan trustee, who made and reported a sale of the premises, and exceptions were filed by the appellants to the ratification thereof. The exceptions were overruled and the only questions urged before us are: .1. Whether the appellants are entitled to except to the ratification of the sale ; and 2.

Whether the decree was invalid because it was passed, at the instance of the appellees, without making the holders of the other two notes parties to the proceedings. As to the first question, we are of the opinion that the appellants were entitled to file exceptions to the ratification of the sale. If, as contended by them, the decree was invalid because all the parties holding the notes secured by the mortgage were not made parties, the property might be sacrificed by reason of such defect in the proceedings which would necessarily affect them. If the petitioners were not entitled to a decree, as alleged in one of the exceptions, the mortgagors could certainly urge that objection to the ratification of the sale.

So without further discussion of that branch of the case we will proceed to the consideration of the second, which is the important one. There has been a number of decisions in this Court construing one or more of the sections of the Local Code above referred to, but this precise question has not been decided, ⁶⁶⁵ although it is one of importance and one that we might suppose would have arisen before. It may be conceded that if the appellees had filed an ordinary bill to foreclose the mortgage, all persons interested, including the holders of the other two notes, should have been made parties, and it cannot be denied that there must be a substantial compliance with the requirements of the statute which authorizes such a summary proceeding against the mortgaged premises in case of default. We must, however, determine the question by ascertaining the true meaning of these provisions, so far as applicable to this point.

Section 692 of Art. 4 of the Local Code, as amended by ch. 197 of the laws of 1890, provides that “ in all cases of conveyances of land * * wherein the mortgagor shall declare his assent to the passing of a decree for the sale of the same, it shall be lawful for the mortgagee or his assigns at any time after filing the same to be recorded, to submit to either of the Circuit Courts of Baltimore City the said conveyances or copies thereof under seal of the Superior Court, and the Circuit Court to ■which the same is so submitted, may thereupon forthwith decree that the mortgaged premises shall be sold,” etc. In this mortgage there was the assent of the mortgagors, the appellants, to the passing of a decree and to a sale under it, in case of default, and also to a sale by the mortgagee, his executor, administrator or assigns, under the provisions of the Public General Laws, if default be made. It would seem clear, then, that if all the notes had been assigned to one person he would have been entitled to a decree, and it is not denied that the holders of all the notes could have obtained a valid decree on their joint application. Section 703 of this Article provides that if a default has taken place before the conveyance is submitted to the Court, “it