Walker v. WILLIAMS, TRUSTEES

Henry, J., by special assignment, delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Montgomery County, sitting as a Court of Equity, dated March 14, 1958, finally ratifying a sale made and reported in a mortgage foreclosure proceeding to which exceptions had been filed on December 20, 1957, by the appellant herein, Mrs. Sarah A. Walker. The appellee filed a motion to dismiss the appeal on the ground that the record extract is deficient in that it did not include either the oral opinion of the Circuit Court or any of the testimony taken in a hearing in open court on the petition excepting to the final ratification óf the sale and was insufficient to enable this Court to determine the issue presented on this appeal. Since this opinion and this testimony have been supplied by the appellee in an appendix to his brief we will not rule on the motion.

On February 3d, 1953, the appellant, now or formerly engaged in the real estate business in Maryland and Virginia, together with her husband, now deceased, though the date of his death is not supplied and it is immaterial for the purposes of this case, executed a deed of trust in the nature of a mort ³¹⁴ gage to secure the payment of a promissory note payable to one Walter Miller, Treasurer, Guardian Building & Loan Association, Inc., or his successors in office, for the sum of Fourteen Thousand Five Hundred Dollars ($14,500.00). The deed of trust or mortgage granted and conveyed the property known as No. 7441 Baltimore Avenue, Takoma Park, Maryland, being the house and lot with which we are here concerned, unto three trustees named therein and provided that the debt, principal and interest should be repaid “in monthly instalments of One Hundred and Five and 70/100 ($105.70) Dollars commencing on the 1st day of March, 1953, and continuing on the 1st day of each and every month thereafter with the entire remaining unpaid balance of principal and interest being due and payable in full on the 1st day of February 1970.” It was also agreed and understood that in addition to the aforesaid monthly instalments the mortgagors should pay in monthly instalments 1/12 of the annual state, county and town taxes and 1/36 of the 3 year fire and extended coverage insurance premium. This made the total of the monthly payments about $136.00. Among the provisions of the deed of trust were the following: “And Upon This Further Trust, upon any default or failure being made in the payment of said promissory note or of any instalment of principal or interest thereon, when and as the same shall become due and payable, or upon default being made in the payment, after demand therefor, of any money advanced as herein provided for, or of any proper cost', charges, commissions, or expenses in and about the same, then and at anytime thereafter the said parties of the second part their heirs or assigns or the trustees acting in the execution of this trust, shall have the power and it shall be their or his duty thereafter to sell, and in case of any default of any purchaser to resell the said described land and premises at public auction, upon such terms and conditions, in such parcels, at such time and place, and after such previous public advertisement as the parties of the second part their heirs or assigns or the trustees acting in the execution of this trust shall deem advantageous and proper * * ³¹⁵ Under the above provisions the property conveyed in the mortgage was advertised for sale commencing on November 7, 1957, and was sold on December 2, 1957, on the premises to Guardian Federal Savings and Loan Association, Inc., successors to Guardian Building and Loan Association, Inc., for the sum of $12,500.

The report of sale, filed on December 30, 1957, disclosed the balance still due on the deed of trust to be $12,886.92. Prior to the filing of the Report of Sale, that is on December 20, 1957, the appellant filed the petition hereinbefore mentioned, asking the Circuit Court to withhold approval of any sale made under the aforesaid deed of trust and raising the two questions which were decided by that court, that the trustees had the right to make the sale and that the price which the property brought should not