Strohmeyer v. Remson

⁴⁴⁰ Urner, J., delivered the opinion, of the Oourt. The order from -which this appeal has been taken was invoked and passed in evident misapprehension of the intended effect of certain language used in the opinion of this Court in Boynton v. Remson, 133 Md. l09. The appeal in that case was front a decree ratifying a sale of the same real estate which is involved in the present proceeding. In the former case separate sales, were made on the same day under powers of sale contained in first and third mortgages on the property..

Exceptions to both1 sales were filed by the mortgagor on the ground that, because of the confusion arising from the efforts to conduct these conflicting sales, the property was sold in both instances at a substantial sacrifice of its real value. The decree appealed from sustained the exceptions to the sale reported under the third mortgage, and ratified the sale under the first mortgage, at the same time dismissing a bill for injunction against that sale which had been heard with the exceptions by agreement. On appeal the decree was affirmed except in so far as it ratified the sale under the first mortgage. In the view of this Court, the evidence was “sufficient to support the contention that the conditions surrounding the sale not only tended to prevent the disposition of the propei’ty for an adequate price, but in fact produced that injurious result.” As stated in the opinion, our review of the case brought us to the conclusion that the mortgagor’s interest “suffered material injury as a result of the concurrent exercise of the powers of sale contained in the first and third mortgages, and of the effort of each of the vendors to discourage'bidding at the sale conducted by his competitor.” It was further said: “According to our conception of the case, a serious loss may result to the mortgagor from the ratification of either of the reported sales, but we are confident that no injustice would be done to any interest in the case if a resale is- ordered.

The third mortgagee, whose claim will be partly lost if the first sale is confirmed, might be very materially benefited if the farm is resold, and the first mortgagee is amply protected by ⁴⁴¹ priority of lien and cannot be injured by a resale of the property under conditions which will admit of its fair market value being1 realized. The second mortgagee appears to-be well secured and is taking no part in the litigation.” The opinion concluded with the statement that if the mortgagor “'should he unable to refund his existing’ mortgage indebtedness, and a resale cannot be thus avoided, it should be made alone under the power of sale in the first mortgage, so that the title may he sold clear of all liens and under conditions favorable to a sale that will be advantageous to all parties concerned.” After the case was remanded, the first mortgagee concluded not to proceed with the exercise of his power of sale, and after the mortgagor had been given an opportunity to make a, sale of the farm on his own account, the holder of the second mortgage advertised and sold the property at public auction under the power of sale in that mortgage, which secured a claim of $30,000 and accumulated interest. This sale was made for $47,000, subject to the first mortgage, which recited a consideration of $2,500. The purchaser was Mr. Fred B. Rhodes, who is the attorney named in the power of sale in the third mortgage.

The price realized at this sale represented a considerable increase over the prices formerly reported. The mortgagor excepted to the new sale on the ground that it was made for an inadequate price and in disregard of the opinion of this Court disposing of the other appeal. The exceptions stated additional grounds of opposition to the ratification of the sale, but they are not pressed and are plainly untenable. In declining to ratify the sale last reported, the Court below expressed the view that the sale should he made free of all incumbrances, -and1 that- “such a sale was undoubtedly meant by the Court of Appeals, when, after considering the circumstances of this particular case, it was said the property should be sold alone under the first mortgage, and clear of all