Robertson v. American Homestead Ass'n

Bartol, J., delivered the opinion of this court. ’ It has been decided by this court, that from a decree passed under the act of 1833, ch. 181, and its supplements, an appeal lies. Williams vs. Williams, 7 Gill, 302. Hays vs. Dorsey, 5 Md. Rep., 99 . On such appeal, this court will review the proceedings as presented by the record, examine the terms and conditions of the mortgage, and determine whether the decree is in conformity therewith.

In a proceeding under that act the court has no power to pass any decree, which is not in conformity with the conditions of the mortgage, and embraced in the terms of assent to the decree, contained in the mortgage itself. In this case the decree ascertains the sum of §336.09 to be due from the appellant to the appellee, and directs, “that unless' the mortgagor shall, on or before the 27th day of August 1855, pay to the mortgagee, or bring into court to .be paid to. him, the sum of §366.09, together with the costs of this proceeding,” that the mortgaged property be sold. That sum is the amount stated to be due in “the statement of claim” filed by the appellee under the 3rd section of the act of 1833. But., upon looking at the mortgage, it is obvious that no such sum could be due at the time of the decree.

The mortgage contains no covenant or engagement for the payment of any such sum. It provides for the payment of:— 1st. “Interest monthly on §460.00.” 2nd. “One dollar weekly, payable every Friday.” 3rd. “All ground-rent, taxes and public dues, for which the mortgaged property may be liable.” 4th. “All fines imposed by the articles of association of the ⁴⁰⁷ said body corporate, for neglect to make the said payments, or any of them.” 5th. “To keep the mortgaged property fully insured from loss by fire, for the benefit of the mortgagee, during the continuance of the mortgage.” It is also stipulated, that these obligations are to continue “until the time arrives, when each unredeemed share of the said body corporate’s stock shall be worth in cash, above all losses and liabilities, the sum of $200, and the said body corporate shall have sufficient funds on hand, to pay to the holders of every unredeemed share of its stock the said sum of $200, clear of all losses and liabilities.” There is no provision in the mortgage for the payment of the sum of $460, named therein as the consideration for which it was executed, nor any part of it as a mortgage debt. The petition of the appellee alleges a default, by the mortgagor for more than three months, “in not paying the weekly instalments and the interest secured by the mortgage.” Upon the face of the mortgage therefore, and on the allegations in the appellee’s petition, the circuit court had no power to decree the sum of $366.09 to be due; and in so far as the decree directs the mortgagor to pay that sum to the mortgagee, or to bring it into court to be paid to him, it is erroneous. The 2nd section of the act of 1833 simply empowers the court “to decree, that the mortgaged premises be sold, at any one of the periods limited for the default of the mortgagor.” The proceedings contemplated by the act are exparte, and the court is not authorised, by its decree, to determine judicially the amount due upon the mortgage.

Before a sale can be made under the decree, the mortgagee is required to file a statement of his mortgage claim, verified by oath. That may be done either before or after the decree. See Hays vs. Dorsey, 5 Md. Rep., 101. But such statement is not conclusive, and the amount actually due is open to examination on proof, either before the sale or after the order of ratification nisi.

For the reasons above stated, we must reverse the decree of the circuit court. But considering that the appellee is entitled to a decree of sale, under his petition and the mortgage exhib ⁴⁰⁸ ited, our duty, under the act of 1832, ch. 302, sec. 6, is to remand the cause to the circuit court, in order that the decree may be corrected, and such further proceedings may be had as are contemplated by the act of 1833, and as may be necessary for “determining the cause upon its merits.” ’ The act of 1832 imposes on this court the further duty of “determining and declaring the opinion of this court on all points which may have been made before it, or which may be presented by the record.” And in conformity with its requirements, we proceed to the consideration of the several questions presented. It has been objected that this mortgage is inoperative, for want of compliance with the provisions of the act of 1825, ch. 50, in not specifying on its face the principal sum it is intended to secure, or the length of time during which the several sums thereby secured are required to be paid. A conclusive answer to this objection is to be found in the provisions of the act of 1852, ch. 148, which, in express terms, authorises such mortgages as this, and makes them valid.

This mortgage is not within the provisions of the act of 1825, or, if it be, that act is repealed pro tanto by the act of 1852, ch. 148, whereby building associations, incorporated under its provisions, are empowered to take such mortgages as the one before us, the very terms of the mortgage being prescribed by the 7th section of that act. The same act of 1852, by fair implication, brings such a mortgage as the present within the provisions of the act of 1833, ch. 181, and its supplements. In the 9th section it is provided, “that the oath of the treasurer or other financial officer of any such corporation, whose duty it may be to keep the books of accounts of any such corporation, shall be so taken and deemed to be, a full compliance with the provisions of the act of Assembly of 1833, ch. 181, and its supplements.” The objection that the several sums secured to be paid, are each too small, to be within the jurisdiction of the Chancery Court, can not apply to this case; because it appears by the petition filed, that there was due at the time of the decree, an amount sufficient to bring the case within the jurisdiction of the court. ⁴⁰⁹ In the further progress of the case, the duty will devolve on the circuit court, to ascertain the amount which the appellee is entitled tú claim under the