Tolson v. Williams

Urner, J., delivered the opinion of the Court. Exceptions to the mortgage sale in this case were sustained on the ground that the affidavit required by law in reference to the mortgage tax was defective. The mortgage was dated December 30, 1904. It was executed by Charles A. Williams and conveyed to ITenry A. Weldy certain real estate in Carroll County to secure a balance of $4,000.00 owing on the purchase price of the property.

At that time it was provided ⁶¹³ by statute that any person lending money secured by mortgage on property in Carroll County, or his agent or attorney, in addition to the usual oath or affirmation as to the consideration, should take an oath or make an affirmation to be endorsed on the mortgage, to the effect that the mortgagee had not required tire mortgagor, his agent or attorney, or any person for the mortgagor, to pay the tax levied upon the interest covenanted to be paid, in advance, nor would he require any tax levied thereon to be; paid by the mortgagor, or any person for him, during the existence of the mortgage (Code, Art. 21, Secs. 32, 33, 35; Art. 81, Sec. 190). No such affidavit had been made or endorsed on the mortgage when it was filed for record several days after its execution. The omission being discovered, an affidavit as to the mortgage tax was endorsed on the original mortgage, and it was then refiled for record. This occurred within a few weeks after its first registration.

But the affidavit thus supplied was made by an agent- of the mortgagee, who appears to have sworn that he, the agent, had not required and would not require the mortgagor to pay the tax, instead of giving such assurance as to the mortgagee. Immediately after the execution and delivery of the mortgage it was assigned by tlie mortgagee to the Title Guaranty and Trust Company. The assignment was endorsed on the mortgage and was recorded with it on January 4, 1905. The statute referred to made it the duty of the assignee corporation, its agent or attorney, to make an affidavit, like the one we have described, in regard to the payment of the mortgage tax, and to have it recorded with the assignment.

This affidavit was also omitted when the mortgage and assignment were originally recorded. An affidavit as to the tax was subsequently made by an agent of the assignee and was endorsed on the mortgage when it was filed for record the second time. The form of the latter affidavit is similar to the one made by the mortgagee’s agent, and the same objection is raised as to its sufficiency. ⁶¹⁴ By subsequent assignments, with accompanying affidavits, which axe free of the objection made to the earlier ones, the mortgage was transferred by the Title Guaranty and Trust Company to Henry C. Shirley and William W. Shirley, and by them to John C. Tolson, who proceeded on November 30, 1917, to exercise the power of sale which the mortgage conferred upon the mortgagee or his assignees. The purchasers objected to the ratification of the sale, alleging that the title proposed to be conveyed was not good and marketable.

From the order sustaining their objection on the ground we have stated the assignee of the mortgage has appealed. However deficient the mortgage and first assignment may have been with respect to the omission or informality of the tax affidavits, they were completely validated, prior to the exercise of the power of sale, by the curative Act of 1914, Chapter 421, codified as Section 89A of Article 21 of the Code of Public General Laws, which enacted, in part, that “any mortgage or assignment of mortgage defectively sworn to or not sworn to at all” was thereby, made valid “to all intents and purposes, as if said mortgage or assignment of mortgage had been in such matters in full conformity with the law in force at the time of such execution; provided that any such mortgage or assignment of mortgage is in other