Tucker v. Hudson

Digges, J., delivered the opinion of the Court. The appeal in this case is from an order or decree of the Circuit Court for Harford County, in equity, sustaining a demurrer to the amended petition filed by the appellants. The facts upon which the controversy now submitted to this court is based, as disclosed by the record, are substantially these: That Eugene Tucker during his lifetime was the owner of sixty-seven and one-half square perches of land situate in Harford County in the village of Eorest Hill, upon which was located a dwelling house. That during his lifetime the said Eugene Tucker, with his wife Lillie E. Tucker, executed a mortgage on the property, dated October 5th, 1923, to Frank H. Jacobs in the sum of $5,200, which was subsequently assigned, on October 8th, 1923, by the mortgagee to several parties for varying amounts: $4,000 to Stevenson A. Williams and Thomas White Hall, trustees; $900 to Eliza C. Jarrett, guardian of James Henry Jarrett, Jr.; and $300 to E. Rush Williams, without recourse, each of said amounts to be an equal lien.

The appellant Stevenson A. Williams was named as attorney in the mortgage to exercise the power of sale therein contained, which power was, after default, to sell “at public sale, or after a public offering, at private sale, the mortgaged premises.” That Eugene Tucker died on the 5th of January, 1925, leaving a widow, Lillie E. Tucker, an adult daughter, Mary E. Tucker, and a minor son, Paul E. Tucker, as his heirs at law. That on January 14th, 1925, Williams, the attorney named in the mortgage, the same being in default, docketed suit for foreclosure, and filed his bond for the faithful discharge of his duties as such attorney, which bond was duly approved by the clerk of the court. That, at the request of the widow, the attorney withheld the advertisement of the property, and nothing more was done in respect thereto until July 27th, 1927, at which time an ¹⁶ agreement for the private sale of the property was entered into by and between Lillie E. Tucker, Mary E. Tucker, and Lillie E. Tucker as guardian for Paul E. Tucker, parties of the first part; and Willard P. Hudson and Blanche Spicer Hudson, his wife, of the other part, who were then occupying the property as tenants. This agreement was for the sale of the mortgaged property, the purchase price being $6,750, with interest from the 21st day of July, 1927.

That the tenancy of Hudson and wife was to end as of that date, and settlement was to be made, $200 upon the signing of the agreement, and the balance when deed was executed conveying said property to Hudson and wife “free and clear of encumbrances, in fee simple, transferring a good, marketable title to said property.” That subsequent to the signing of this agreement of sale, Williams, the attorney named in the mortgage, reported this private sale, made by the heirs of Eugene Tucker, to the court, filing with said report a copy of the agreement, and prayed that said sale might be finally ratified, certifying to the same having been bona fide and fairly made and for the best price that could be obtained. On March 30th, 1928, the heirs of Eugene Tucker filed their petition in the mortgage foreclosure proceeding, reciting tho facts hereinbefore outlined, and alleging that the price agreed to be paid at the private sale was as much as, if not more than, it could be sold for at public sale, and that it was for the best interest and advantage of the infant, as well as others interested therein, that the sale should be ratified and confirmed by the court; further, that such a proceeding would save considerable cost and expense to all parties in interest; and prayed that the court allow the petitioners to intervene in the foreclosure proceeding, and take jurisdiction in the premises, and further, that the private sale reported by Williams, attorney, be ratified and confirmed. Hudson and wife, on April 6th, 1928, filed objections to the ratification of the sale, and on April 23rd, 1928, filed their answer to the petition of the heirs of Eugene Tucker. On August 28th, 1928, the court passed an order taking jurisdiction, and granting ¹⁷ leave to the Tucker heirs and Williams, attorney named in the mortgage, to amend the proceedings in such way as they may be advised for the purpose of bringing the matter within the terms of sections 102 and 152 of article 16 of the Code, and further requiring that Paul Tucker should be made a defendant, so that a guardian ad litem might be appointed for him, and all lien-holders should likewise be made defendants.

Later the amended petition was filed, in which all of the parties interested, either as heirs or lien creditors, as well as Williams, the attorney named in the mortgage, were made parties. The allegations of this amended petition were substantially those of the first petition, and prayed that the petitioners be permitted to intervene, or that the court direct a consolidation of said proceeding for the exercise of the power of sale contained in said mortgage, with this proceeding ; second, that the court ratify and approve said contract of sale; and third, that the liens on said house and lot be paid out of the proceeds of sale. To the amended petition thus filed, the defendants Hudson and wife demurred. The demurrer was sustained.

The question presented by the record may be said to be two-fold: Eirst, whether or not, under the circumstances of this case, Hudson and wife, the vendees in the contract of sale, should be compelled to take the property; and second, whether or not the practice followed in this case is such as should be sanctioned by this court ? Treating these questions in inverse order, we find an attempt to perfect a title, such as the purchasers would be compelled to accept, by combining the authority conferred upon a court of equity by sections 102 and 152 of article 16 of the Code, with the authority which an attorney named in a mortgage has, under the powers specifically enumerated therein. The mortgage being in default on January 14th, 1925, there can be no doubt that the attorney named in the mortgage had the authority to docket suit and file his bond, preliminary to a sale of the mortgaged premises in accordance with the power1 conferred upon him by the terms of ¹⁸ the mortgage. This he did; and then, upon the request of some of the heirs of the mortgagor that they be permitted to attempt a private sale of the property, failed to take any further steps in the foreclosure proceeding for more than two- and a half years.

He then, on August 18th, 1927, reported a sale, made by the widow and adult daughter of the deceased, and the widow in the name of and on behalf of the minor son, to the defendants Hudson and wife, and asked that such sale be ratified. It seems clear that the only sale which the attorney named in the mortgage had the authority to make or report to the court for ratification was a sale made in conformity with and under the powers expressed in the mortgage. The mortgage provided that the attorney could only make a private sale of the property after a public offering, which concededly was not done. The general rule is that a party exercising power such as here attempted must comply strictly and fully with the terms of the instrument creating the power.

There may be exceptions to this general rule, as where a trustee making sale under a decree of court varies in some degree from the terms of the decree, and where the court would ratify the sale when it is shown that the deviation has resulted in a benefit to all concerned, or at least has not injured them. In the present case, even if we admit for the sake of the argument that it presents such an exceptional case, we are still met with the proposition that the sale reported by the attorney named in the mortgage was not his sale at all, but a private sale made by the heirs of Eugene Tucker. Therefore, it must follow that, in the case' of a sale reported to a court of equity, which the attorney reporting same neither made nor had the authority to mate, the court itself is without jurisdiction to ratify. In other words, if the party reporting the sale had no authority to make such report, the court is without jurisdiction or authority to ratify.

The only sale which the attorney named in the mortgage had the authority and power to report to the court for ratification was one made by him as such attorney in conformity with the terms of the ¹⁹ mortgage. When Williams, the attorney named in the mortgage, reported the sale made by the Tucker heirs, and subsequently was made a party defendant in the petition filed by them for ratification, and did not object thereto, the only effect was to signify his assent to the ratification of the private sale, in the event there were no objections on other grounds which would be fatal to the ratification, and also to estop him from proceeding further with the foreclosure until this question had been disposed of by the court. In our opinion, the court had no more jurisdiction to ratify the sale reported by the attorney in this case, than to confirm a sale reported by an entire stranger to the proceedings, and the fact that the attorney was one named to make sale under the powers contained in the mortgage, in no way distinguishes or differentiates him from a stranger. He could only report such a sale as he was authorized to make, and the court has no jurisdiction to ratify an unauthorized sale.

If we consider the report made by the attorney named in the mortgage, together with the allegations contained in the petition of the heirs of Eugene Tucker, as a bill of complaint attempting to confer jurisdiction upon the court, in cases in which the provisions of section 152 of article 16 of the Code apply, the question is: Are there such allegations contained either in the petition or in the report made by the attorney as would establish the court’s jurisdiction under said section? In other words, would an original bill filed by the heirs of Eugene Tucker, which contained the language used in their petition and the report made by the attorney, be a compliance with the