Stratmann v. Haile

Pattison, J., delivered the opinion of the Court. The appellant, Henry W. Stratmann, bought of Charles E. Weakley a farm, in Baltimore Ctiunty, at and for the sum of twenty-five thousand dollars. Of this sum he paid $5,000 in cash, and in payment of the balance ($20,000), he gave to Weakley a promissory note, signed by himself and Emma F. Stratmann, his wife, for said amount, dated the 30th day of January, 1920-, and payable in three years thereafter, with interest thereon, payable semi-annually. This note was secured by a mortgage upon said farm of even date therewith, executed by Henry W. S'trat-mann and wife.

To enable him to make the cash payment upon the farm, Henry W. Stratmann borrowed from George F. Stratmann and Elsie M. Stratmann, his wife, the sum of $5,000, and gave to them a note for that amount, dated the said 30th day of January, 1920, payable in three years thereafter, with interest thereon, payable semi-annually, and to secure the payment of the note, with interest as aforesaid, when and as the same became due and payable, H'enry W. Stratmann and ³³ wife executed unto George E. Stratmann and Elsie M. 'Stratmann a second mortgage upon said farm for the amount of said note. The mortgagors defaulted in the payment of interest on the mortgage to WeaMey, and he, on the 31st day of August, 1921, instituted proceedings in the Circuit- Court for Baltimore County to foreclose the mortgage-; and on the 27th day of September, 1921, the mortgaged property was sold thereunder to C. Wayne Marshall at and for the -sum of $12,000, and the sale so made was reported to the court. To this sale exceptions were filed by the mortgagors, Henry W. Stratmann and wife, the- grounds thereof being that the mortgagee had violated the “agreement, conditions and understandings” between them; that the sale was not- a fair and open one-; that it was conducted by the- mortgagee in such manner as to discourage prospective bidders; in consequence of which, as therein alleged, the property was sold for an amount greatly below its value. In the exceptions t-o- the sale the sufficiency of the bond and advertisement was assailed, and it was charged therein that the mortgage claim filed by the mortgagee- was false and incorrect.

In addition to these the further objection was made that the mortgagee had failed to append to the report of sale an affidavit as to the truth of the statements therein, and that the sale made and reported by him was in all thing’s fairly made. A day was set for the hearing of the exceptions, and on that day, with the leave of the court, the mortgagee filed -an amended report of sale, to which was appended the affidavit which did not appear to the first report, and no argument was heard upon the exceptions filed to the original report. The mortgagee, a few days after the filing of his .amended report, filed a petition, alleging therein that, in view of the exceptions that had been filed to the sale made by him, he thought it best, with the leave of the court, to- re-advertise and re-sell the mortgaged property, and he in his petition prayed that an order be passed vacating and setting aside the ³⁴ sale so made and authorizing and directing him to re-advertise and re-sell the mortgaged property. Upon the aforesaid petition and the consent of the purchaser that the prayer of the petition be granted, the court passed its order of the same day vacating and setting aside the sale, and authorizing and directing the re-advertisement and re-sale of the property as prayed.

After obtaining the order above mentioned, and after consultation with Mr. Haile, his attorney, the mortgagee, because of the charges of unfairness and misconduct made against him in the sale so- vacated and set aside, concluded to assign the mortgage to Mr. Haile for foreclosure, so that the sale might be made and conducted by the assignee and not by him, thereby avoiding a possible repetition of said charges. To carry out the conclusion reached by him, he paid the costs of and dismissed the proceedings instituted by him, and after withdrawing the mortgage therefrom, he, in the presence of the clerk of the court, and without taking the mortgage from his custody, assigned it to Mr. Haile, who at once instituted proceedings for its foreclosure and filed therein the assigned mortgage. The property was sold by the assignee under the proceedings so instituted by him for the sum of $12,000, the same amount at which it had been sold and reported in the first proceedings, and the sale was reported to the court for its ratification. To this sale the mortgagors, as well as the mortgagee of the second mortgage, excepted.

But their exceptions were overruled and the sale ratified by .an order of the court passed on January 30th, 1922, and from that order this appeal was taken. The exceptions filed contained a number of grounds upon which the court was asked to vacate and set aside the. sale, but the ground upon which the .appellants, chiefly relied was: That the assignee of the mortgage was without authority to sell under the powers contained in the mortgage, because, ³⁵ as alleged, WeaHey, in. the sale made .and reported by him and in the dismissal, without the leave of the