Warfield v. Ross

Bowie, J., delivered the opinion of the Court. The appellants, on the 10th of August, 1872, filed their petition in the Circuit Court for Baltimore County, sitting in Equity, praying that the final order of ratification of sale, passed in the case of Clara A. Ross vs. Isabella Warfield and others, on the 7th of said month, might be opened and reheard; which petition being dismissed, an appeal was thereupon prayed. Although it does not appear from the record, whether the final order of ratification, as well as the order dismissing the petition was included in the appeal, yet as it has been assumed in the briefs and argument of the counsel, that both were subjects of review, we shall so consider them. The matters of fact assigned in the petition, as reasons for opening and reviewing the final order of ratification, (except one which will be considered in connection with the objections to the sale.) are substantially and in effect, that the appellants had no notice of the time when the exceptions to the sale were set down 'for hearing; that they had not time to examine the testimony taken under the commission, issued and returned in the cause, and that the order was passed in violation of the practice and rules of the Court. ⁸⁹ The statement of the Court preceding their order, refusing the appellants’ application, is entirely inconsistent with that assigned for rehearing The Court say “The exceptions to the ratification of the sale, etc., wore set for hearing in the presence and with the assent of the counsel of the respective parties to the cause, and upon the day set for the hearing, the solicitor of the exceptants being absent, the exceptions ■were argued by the solicitors of the mortgagee and assignee.” This statement of facts cannot be contradicted.

If it could be, there is nothing in the record to the contrary, and conceding it to be correct, all objections for want of notice, regularity and formal compliance with the rules, were waived by the consent of the appellants’ counsel, to set the exceptions down for hearing. The remaining reason in support of the petition to open the decree was, that an important- paper, showing the title of the appellants to the land sold, had been accidentally omitted to be filed with the commissioner. This will be more properly considered with the objections to the ratification of the sale, which are substantially as follows : 1st. That the appellants, Chas.

D. Warfield and Isabella Warfield, had no power to mortgage. ' 2nd. That Luther M. Reynolds, the attorney, had no authority to sell. 3rd. That Timothy A, Carroll, should have been made a party. 4th. That the contract was usurious. 5th.

That the price wras inadequate. The first and second exceptions are virtually the same ; since it follows legally as well as logically, that if the mortgagors had no power to mortgage, the attorney named in the instrument, could have no authority to sell. ⁹⁰ The appellee’s petition and proceedings thereon, were instituted in pursuance of Art. 64, of the Code of Public Geni. Lawsj entitled “Mortgages.” It is not a case, in which the general principle of equity, requiring all persons having claims to the matter in controversy to he made parties, applies. The special jurisdiction given the Circuit Courts by that Article, is strictly confined to the parties to the instrument constituting the mortgage, and conferring the power of sale.

Although objections may be filed against the sale by “any"person interested in the property,” yet it is apparent, as the sale only passes the title which the mortgagor had in the mortgaged premises, at the time of recording the mortgage, no person whose interest would not be affected by the sale, would be allowed to intervene. Vide Code of Public General Laws, Art. 64, secs. 8, 10 and 15. The mortgagors, Charles D. and Isabella War-field, were estopped by their deed, from denying they had power to mortgage. Their interest, whatever it was at the time of recording the mortgage, passed by the sale when ratified, to the purchaser.

All others, not parties to the mortgage, were strangers and wholly uninjured by the sale. In our view of the case, it was wholly immaterial to inquire at the' instance of the exceptants, what title Timothy A. Carroll conveyed to them, and unnecessary and improper to make Mr. Carroll, or the reversioners in the deed from Carroll to the Warfields, parties to the proceedings under the mortgage. The exceptants had no ground of complaint on that score. The purchaser alone was injured by the defect of title, if any.

The record shows a mortgage from Isabella