Taylor v. Carroll

Briscoe, J., delivered the opinion of the Court. On February 3rd, 1873, Spotswood Garland, of Baltimore County, conveyed by way of mortgage to Douglas H. Gordon, of that county, to secure a loan of twenty thousand dollars, certain lands situate in Plampden, at that time Baltimore County, but, since the Act of 1888, ch. 98, a part of Baltimore City, including the four lots in controversy in this case, ³⁴ On the 28th of July, 1877, Gordon, the mortgagee, for the purposes of foreclosure, assigned this mortgage to John Scott, Jr., a member of the Baltimore bar, who, subsequently, ■on September nth, 1877, under the power contained in the mortgage, sold a large part of the mortgaged land, not including these lots in dispute, for the sum of $2,100; the sale was ratified by the Court, and afterwards, on the 20th of March, 1878, an auditor’s account was filed therein showing a balance of indebtedness of $7,691.01, with interest from the 5th of September, 1877, after allowing credit for the money arising from the sale. This audit and account was ratified by the Court on the 17th of May, 1878. John Scott, Jr., is dead, and Archibald H. Taylor, the ■appellant, was, on the 28th of October, 1897, appointed administrator of the estate, who, upon an order of the Circuit Court of Baltimore County, substituting him as party plaintiff, proceeded as such administrator to advertise and sell the mortgaged land, including these four lots.

It further appears that David Carroll, the testator of the appellees, prior to June 20th, 1877, acquired title to both the leasehold and reversionary interests in the four lots described in the mortgage and under his will they passed to the appellees. This bill is filed by the appellees to restrain the sale and to declare that this mortgage does not constitute a lien or charge on these lots, and from a decree in favor of the appellees this appeal has been taken. The first question, then, presented by this state of facts relates to the right of the appellant to exercise the power of sale conferred by the mortgage. The appellant admits by his answer to the bill, that the mortgage was assigned to John Scott, Jr., for the purpose of foreclosure only, and whether this assignment vested such title in Scott as would pass upon his death to his administrator, is the question here.

The general proposition is true that the power of sale ^contained in a mortgage passes with the estate by assign ³⁵ ment of the mortgage debt and is not affected by the death of the mortgagee, because it is a power coupled with an interest, and is appendant to the estate. Berry v. Skinner 30 Md. 572 ; Mackubin v. Boarman, 54 Md. 387 . But it is distinctly held that where the power is conferred upon a third person, who has no interest in the estate, it is a collateral power. In Queen City Perp.

Bldg. Association v. Price, 53 Md. 398 , this Court said : If any person than the mortgagee or his assigns be intended by the parties to execute the power he or they must be specially named in the power. In Chilton v. Brooks, 71 Md. 450 , it was said that the assignee of a mortgage, whoever he may be (if not a corporation), may execute the power as if designated by name, while an attorney may do it only when specially named. And in Barrick v. Horner, 78 Md. 256 , where the earlier cases on this subject are cited and reviewed, it is said: “ It is clear, that the right to execute the power cannot vest in his executors, unless they are designated by the instrument in such terms as to bring them within the provisions of the statute. * * An assignee of the mortgage in a case where the power was effectively conferred upon the mortgagee would take the right to execute the power, as an incident of the estate, but where a stranger is the donee, the power not being appurtenant to the estate, can be exercised by him only who has had it conferred according to a proper construction of the statute, that is, by