Thomas C. Basshor & Co. v. Stewart

Alvey, J., delivered the opinion of the Court. The mortgage of the Maryland Inebriate Asylum to Werner Dresel was executed on the 2nd of July, 1814, and was to secure the payment of $18,000, purchase money, due on the property described in the mortgage. This mortgage was afterwards assigned, and part of the debt has been paid. Default in payment of the balance having occurred, the assignee of the mortgage, by attorney, sold the mortgaged premises, under the power contained in the mortgage, and the sale was reported to the Circuit Court for Baltimore County, on the 1st of July, 1819 ; hut that sale, having been excepted to, was set aside by an order of the Court dated the 30th of September, 1819.

And at the same time, upon setting the sale aside, the Court proceeded to pass a decree, under Art. 64, sec. 9, of the Code, ordering a re-sale of the mortgaged premises to he made, and appointing John Stewart trustee to make such re-sale. The trustee gave bond and proceeded to make sale as directed by the decree. The sale was made on the 21th of October, 1819, and was the same day reported to the Court by the trustee for ratification. To this sale exceptions were also filed by the parties holding subsequent liens upon the property.

And on the 28th of January, 1880, the Court, by its order, overruled the exceptions, and ratified the sale. Erom that order, and also from the decree appointing the trustee to make the re-sale, appeals have been taken to this Court. The only exceptions relied on in this Court, or that could, with any show of reason, he relied on, are:— 1st, That the mortgage by the Maryland Inebriate Asylum to Dresel was not duly acknowledged, and that it is therefore inoperative as a legal mortgage as against subsequent lien-holders; and, 2ndly, That there was no authority in the Court to appoint a trustee to make re-sale of the property, after set ³⁸⁰ ting aside the first sale, made under the power contained in what is alleged to be the defective mortgage. These two exceptions resolve themselves into a single question, and that is, whether the acknowledgment of the mortgage be legally sufficient ? for if that be sufficient, there can be no question seriously raised as to the power of the Court to appoint a trustee to make re-sale, under Art. 64, sec. 9, of the Code; the language of the statute being explicit in conferring that power.

It is only because of the supposed illegality of the mortgage, or the acknowledgment thereof, that the power of ordering a re-sale, and the appointment of a trustee under the statute, is denied. The mortgage deed was in all respects properly executed, under the seal of the corporation, and in the last clause of the deed, Wilton Snowden was duly appointed the true and lawful attorney of the corporation, “for it and in its name, and as its act and deed, to acknowledge the mortgage before any person having authority by the laws of the State to take said acknowledgment, in order that the same may be duly recorded.” The same day that the mortgage was executed, according to its date, the attorney thus named in the deed for that purpose, appeared before a justice of the peace, and that officer certified that “ personally appeared Wilton Snowden, he being known to me to be the person who is named and described as and professing to be the attorney named in the letter or power of attorney contained in the foregoing mortgage or instrument of writing, to be the act and deed of the Maryland Inebriate Asylum, the party of the first part thereto ;” omitting, as will be observed after the word writing, the words that should have been inserted, “ and acknowledged the said mortgage.” In the same certificate the justice further certified, that, at the same time, the mortgagee appeared and made oath that the consideration set forth in the mortgage was true and bona fide ; and ³⁸¹ this certificate was appended to the mortgage in the usual way, and the mortgage was thereupon duly recorded, and no question appears to have heen made or suggested in regard to the supposed defective acknowledgment, until after the re-sale made under the order of Court of the 30th of September, 1819. ■ In aid of this certificate we are required to read it in connection with the other parts of the instrument; and we must, moreover, bear in mind that every reasonable intendment should he made in support of the certificate, and the' instrument to which it is attached. And so reading the certificate, is there a doubt left in the mind as to what was done by the attorney before the justice, and what act was intended to he certified by that officer ? The attorney was authorized by the deed itself to make the