Ruley v. Hyland

Bryan, J., delivered the opinion of the Court. Hyland and wife executed a mortgage to Hope H. Barroll, and Barroll assigned it to Benjamin T. Ruley. Barroll was named in the mortgage as the attorney or agent, authorized to sell the mortgaged property in case •of default. A bond was filed in the Circuit Court for Kent County as preliminary to a sale, and duly approved by the clerk of the Court.

A sale was made and reported ⁴⁸⁸ and approved. The auditor filed his report distributing-the proceeds of sale, making no allowance of an appearance fee of ten- dollars to the solicitor of the assignee. Exception was taken to the report on this ground; hut it was overruled by the Court, and the report was finally ratified and confirmed. The assignee has apjDealed.

The thirty-sixth Article of the Code, section ten, enacts-that attorneys-at-law shall be entitled to demand and receive a fee of ten dollars “for prosecuting or defending any cause, plaint or action in any of the Courts of equity in this State.” The question is, whether these words include proceedings for a sale made under a power-contained in a mortgage. The form and nature of a suit in equity are well known. A party makes a complaint that another has withheld from him some right, or has inflicted some injury upon him, and applies to-the Court for redress upon the ground that without its-aid he has no remedy for his grievances. The form of the proceeding may be varied, but the essential matter is that the coercive power of the Court is required to-do justice between litigants.

In the case of an overdue-mortgage the prayer would he that the property should he sold for the payment of the mortgage debt. This would present the subject of the litigation.