Watson v. Bowen

Shehan, J., delivered the opinion of the Court. This is an appeal from an order of the Circuit Court for Baltimore County, over-ruling exceptions by a mortgagor to the ratification of a public sale made by an assignee, under a power contained in a mortgage. Of the several objections presented in the record we find it necessary to consider, at length, only the one pertaining to the announcement by the auctioneer that the lots about to be sold were subject to certain definite restrictions limiting their use and occupation. Immediately prior to the offering of the property, the auctioneer, after reading the advertisement, read from a statement, prepared by the assignee, as follows: “(1) That no building shall be placed thereon nearer than fifteen feet from the street line and no part of any building, such as porch, veranda, bay or projecting window, area or steps shall be erected more than five feet beyond the building line. “(2) That no house shall be erected thereon to cost less than $3,500.00, and only one house is to be built to fifty foot front. “(3) That at no time shall any part of said land be used or occupied for manufacturing, brewing, distilling or sale of spirituous or malt liquors; nor shall said lot or any part thereof or any building erected thereon at any time hereafter be used or occupied as a tavern, drinking ³ saloon, bone-boiling establishment, tannery, slaughterhouse, glue, soap, candle, starch or gunpowder manufactory or for other offensive or dangerous purposes; nor for keeping of pigs, nor for use of burial or cemetery purposes. “(4) The premises shall never be sold, leased, demised or conveyed to or owned by a negro; nor be occupied or resided on by persons of negro descent, except in a menial capacity or as caretaker. “(5) That no barn, stable, crop or other outbuilding shall be erected nearer to the main road or avenue on which the lot fronts than fifty feet or nearer to any other road or avenue than twenty-five feet, and shall not be used for residence purposes.” The assignee, under mistake of fact, directed these restrictions to be read, by the auctioneer, as applying to the entire property instead of to only two small parcels, being a part of two of the lots.

None of these restrictions were contained in the mortgage under which the property was sold, nor did any of them appear in the advertisement of the sale. The only reference to restrictions in the advertisement was that '“the restrictions, if any, to which the property may be subject will be read at the time and place of sale.” Twenty-six building lots were offered separately, as was an improved lot of two acres, and then the entire property was offered as a whole. These restrictions were of a character that should not have been imposed on the lots of ground without authority, either in the terms of the mortgage or from those who had interests in the property subject to the first mortgage under which the sale was made. It is the right of the mortgagor to have the property sold just as described in the mortgage.

The assignee had no right to change the terms and conditions of the mortgage or the nature and character of the property, without the consent of those having interests therein. It was decided in the ease of Sullens v. Finney, 123 Md. ⁴ 653, 91 A. 700 , that, after the execution and delivery of a mortgage, the mortgagor, acting alone, has no authority to modify or impair the estate or interest conveyed, and a sale, under a mortgage, clothes the purchaser with the same title held by the mortgagor at the time the mortgage was recorded. It is obvious that the mortgagee did introduce terms, conditions, or restrictions, by his own act, that did not exist