Thomas v. Fewster

Briscoe, J., delivered the opinion of the Court. The appeal in this case is from an order passed by the Circuit Court for Baltimore County, dated the 12th day of December, 1901, setting aside and vacating a sale of real estate made by Walter W. Parker, trustee, under and by virtue of a decree of that Court. The decree was passed on the 10th day of May, 1901, for a sale of the property, in a proceeding to foreclose a mortgage executed on the 27th of February, ⁴⁴⁷ 1899, by the appellees Margaret J. Fewster and Christopher Fewster, to one of the appellants, Alice M. Willig, to secure the payment of an indebtedness of twenty-five hundred dollars. There was due and owing by the mortgagors to the mortgagee, on the day of sale, on account of principal debt and interest, the sum of $2,612.92.

The property conveyed by the mortgage and decreed to be sold, is described as containing about seven and one-half acres of land, situate at Gardenville in Baltimore County, on the Bel Air road, about one and one-half miles north of North avenue, and north of Floly Redeemer Cemetery, situate on that road. The property was advertised, by the trustee, in two newspapers, the “Baltimore Sun” and the “Maryland Journal.” The advertisement of the sale by the trustee contains a further description of the property as follows : “This property is situate on the Bel Air road, near Holy Redeemer Cemetery, and is about ten minutes’ ride by electric cars from North avenue. It contains about seven and one-half acres of land fronting on the Bel Air road, and all being in the very highest state of cultivation. The improvements consist of a two and one-half story twelve-room dwelling-house with stable, carriage-house, store-house, dairy and other outbuildings.

There is also a great number of fine shade trees, all kinds of fruit trees, yielding an abundance of excellent fruit, and a never-failing spring of pure water. It is convenient to public schools of Baltimore City, and to churches of every denomination. By reason of its superior location having a large frontage on the Bel Air road, this property is very susceptible of division into building lots.” This property and improvements were sold by the trustee in its entirety at public sale, on the premises, on the 4th of June, 1901, to the appellant, John F. Thomas, for the sum of $3,825. Subsequently, the sale was reported to the Court and seven exceptions to its ratification were filed by the mortgagors.

The Court below sustained the appellee’s fifth exception and vacated the sale, upon the ground, that “the trustee who made the sale did not exercise proper and reasonable ⁴⁴⁸ judgment and discretion in making the sale.” It is from this order that the purchaser, the trustee and the mortgagee, have appealed. The appellees contend that the property in question was susceptible of division into lots, and that the trustee made a mistake in selling the property in its entirety, that if the property had been divided into lots, 50x150 feet, the front lots alone would have sold for enough to have paid the mortgage debt and'expenses. The principle is well established by all the Maryland cases, and as specially applicable to sales made by trustees under decrees in equity, that mere inadequacy of price standing by itself is not sufficient to invalidate a sale, unless it be so gross and inordinate as to indicate a want of reasonable judgment and discretion or misconduct or fraud in the trustee or some mistake or unfairness for which the purchaser is responsible. It is impossible, to examine the proof in this record, without being fully satisfied that the trustee while he acted in good faith, made a mistake in selling the property in its entirety, instead of first offering it in lots.

The evidence shows that it was susceptible of division into lots and one of the inducements offered to buy, in its entirety was stated in the advertisement of the property by the trustee, to be “that by reason of its superior location having a large frontage on the Bel Air road, this property is very susceptible of division into building lots.” Mr. Risteau, one of the witnesses and an auctioneer for over thirty years, testfied that he knew the property well, and that the proper way to sell it, in order to realize the greatest amount therefrom would be in lots, that property in that locality bounding on the turnpike would bring $1,000 per acre, that this property ought to be worth $8,000, that the front alone, if it had been laid off in lots 50x150 feet, would have brought $8,000. Mr. McLean, a civil engineer