Tobin v. Rogers

Stockbridge, J., delivered the opinion oí the Court. On the 19th of July, 1881, Lawrence Tobin executed a mortgage to John G. Bogers to secure the payment of the sum of $3,000, on certain property described in the mortgage. Two years later,'on June 20th, 1889, a second mortgage was placed on the same property by Mr. Tobin to Mr. Rogers to secure an additional amount of $1,000. By virtue of mesne conveyances the first of the above mortgages became vested in Reuben Dorsey Bogers as trustee on May 6th, 1890.-Default having been made on the second mortgage, in October, 1892, John G. Bogers instituted proceedings for foreclosure of that mortgage, in the Circuit Court for Baltimore County in Equity.

The land was surveyed, divided into eleven lots and offered for sale and sold as lots in November of the ²⁵¹ same year. In the advertisement no mention was made of the first mortgage, to show whether the sale was to be made free of, or subject to, that mortgage, nor was the first mortgagee a party to this foreclosure proceeding. Mr. Rogers, who made the sales, testified that the property was offered in fee.. At the sale the first five lots were bid in by the mortgagee at prices aggregating $1,000 — the eleventh lot by Lidia Tobin, wife of William M. Tobin, who was a son of the mortgagor, for the sum of $1,710, two1 other lots were sold to a Mrs. .Davis for $180, and the three remaining lots to O. R. and Frederick Faulstiek for prices amounting to $160, or a total for all of the sales of $3,950.

These sales were finally ratified and confirmed in the month of December. In the early part, of 1896 the re-sale of the lots sold to Mrs. Davis was ordered and made, and there the proceedings rested until 1912, when Lawrence Tobin having died, his son, William M. Tobin, individually and as administrator of his father, filed a petition to require Mr. Rogers as trustee to state an account. Following this there was filed, what purports to be the mortgagee’s claim. This is in form a claim for the amount due under the first mortgage, $3,000, with interest thereon to November 10th, 1892, the day of the sale.

At the time of the institution , of the proceedings the second mortgage and note intended to be secured thereby, had been filed, though not in the usual form of a claim. An auditor’s account was then stated in which the auditor charged Mr. Rogers as trustee with the amount of the sales, $3,950, and after allowing the usual expenses incident to the sale, allowed the trustee for both the first and second mortgage debts, and interest on them to the date of the sale of the property. To this account AVilliam M. Tobin filed exceptions, setting forth various grounds, which it is not now necessary to repeat, and it is from the order of the Circuit Court overruling the exceptions that this appeal is taken. ²⁵² It must be premised that these foreclosure proceedings have been conducted with but scant regard for anything like orderly procedure, and with regard to some matters there is only a vague reference to subjects of no little importance in their bearing on the case. Thus it is alleged in the exceptions that proceedings were instituted for the foreclosure of the first mortgage prior to the making of the second, but whether such proceedings, if instituted,