Waring v. Guy

Marbury, J., delivered the opinion of the Court. ⁵⁴⁶ After hearing testimony and receiving exhibits of the parties, Judge Dorsey, as chancellor in the Circuit Court for St. Mary’s County, Maryland, issued a decree sustaining the exceptions of the appellees here and setting aside the sale of certain real estate sold at foreclosure under the powers of sale contained in two certain mortgages. The mortgage debts here involved arose from two. separate instruments running from the appellees, J. Mattingly Guy and Alice C. Guy, his wife, mortgagors, in favor of Metropolis Building Association of Baltimore City, as mortgagees. These conveyances, the first dated September 28, 1962,, and recorded in liber CBG 76, folio 104, and the second dated April 21, 1964, and recorded in liber CBG 85, folio 29, were given to secure debts of $14,950 and $1560, respectively, for a total indebtedness of $16,510. At the time of the foreclosure sale, after all payments, fees, fines and credits were taken into account, there remained $13,768.22 as the gross amount of mortgage indebtedness due.

Notice of sale was published in accordance with the provisions of Maryland Rule W74 a 2 (i) and subsequently the property was sold at public auction at the courthouse door in Leonardtown, Maryland, on Saturday, October 1, 1966, at 11:00 a.m. The sale attracted three bidders and the property, consisting of a farm containing twenty-two and a half acres and improvements thereon, was sold to the highest of these for the sum of $14,800. The appellees duly filed exceptions seeking to. have the sale set aside, alleging inadequacy of the purchase price and that they had money in hand to pay the mortgage indebtedness and costs incident to said sale as grounds for their exceptions. A hearing on these exceptions was scheduled for January 24, 1966, and on January 23, 1966, a petition was filed by the appellant, the purchaser at the foreclosure sale, seeking leave to intervene as a party in interest in the proceedings.

This petition was granted. On the morning of the hearing, supplementary exceptions were offered and accepted by the court over the objection by the attorney for the mortgagee and by the appellant. The supplementary exceptions alleged that the advertisement of the property failed to properly describe the land and improvements,, and “other good and sufficient reasons to be assigned at this, hearing.” ⁵⁴⁷ At the hearing the following witnesses were heard: Oliver R. Guyther, appellees’ expert, who testified as to his appraisal of the property; the appellees J. Mattingly Guy and Alice C. Guy, the mortgagors; John H. T. Briscoe and Philander B. Briscoe, attorneys for the mortgagee; and a Mr. Brenden, a real estate appraiser, called by the Association, who testified as to his opinion of the value of the property. From Judge Dorsey’s subsequent decree in favor of the appellees this appeal followed.

In his oral opinion Judge Dorsey recognized that inadequacy of purchase price alone was not a sufficient ground for setting aside the foreclosure sale unless the amount thereof was so inadequate as to shock the conscience of the court. See Butler v. Daum, 245 Md. 447 , 226 A. 2d 261 . He ruled, however, that the inadequacy of price along with a mistake by one of the-mortgagors was sufficient to justify sustaining the appellees’ exceptions. The mistake on which he relied was allegedly brought about by a telephone conversation between the appellee Mrs. Guy, and John 11.

T. Briscoe, attorney for the mortgagee. The exact substance of the conversation is not clear from the-record and the testimony of Mrs. Guy and Mr. Briscoe was at variance, she claiming that Mr. Briscoe stated that the sale-would not take place for the reason that Mrs. Vallandingham, a sister of Mr. Guy, was going to take care of the indebtedness,, while Mr. Briscoe stated unequivocally that he did not tell Mrs. Guy that the sale would not be held. Although the chancellor found that there was a mistake on the part of Mrs. Guy he stated specifically that he did not question Mr. Briscoe’s veracity. Nor has the appellee made a claim of bad faith, fraud,, or misrepresentation on the part of Mr. Briscoe or anyone connected with the sale.

Therefore, the mistake, if it existed at all, must have been solely on the part of Mrs. Guy from her misunderstanding of the conversation. At any rate, even if we accept Mrs. Guy’s version at face value, it is manifest that she-did nothing to ascertain that Mrs. Vallandingham actually intended to put up the money to stop the foreclosure proceedings. There was no reason presented to us and we know of none why a properly advertised and conducted foreclosure sale should be set aside because of mistaken belief on the part of a default ⁵⁴⁸ ing mortgagor that the sale would not be held, when that belief was not the result of any fraud, misrepresentation, or any other misconduct by any other party, especially when the defaulting mortgagor could have, by slight effort and in the exercise of reasonable prudence, ascertained that her belief that the sale would ■not be held was mistaken. Furthermore, as admitted by the •appellees in their brief, there was no positive testimony that Mrs. Guy herself intended to appear at the sale to bid on the ■property.

Although the appellees claimed that the property was improperly described in the advertisement, they agreed that “the advertisement is sufficient if it describes the property so that it can be located by the exercise of ordinary intelligence and so that more detailed information concerning it could