Webb v. Haeffer

Brent, J., delivered the opinion of the Court. On the 11th of May, 1816, George F. Webb, one of the appellants, executed to William Haeffer, the appellee, a ¹⁸⁹ mortgage upon certain leasehold property, situated in Baltimore County, to secure the payment of five promissory notes of even date therewith. The mortgage contains a clause authorizing the mortgagee or his attorney, J. A. Preston, in case of default in the payments as they fall due, to advertise and sell in the City of Baltimore, the mortgaged premises. Some of the payments having fallen in arrear, the mortgagee proceeded on the 21st of November, 18⁷⁷, to take the first step required by the Code before proceeding to sell, by filing a bond in the Circuit Court for Baltimore County, accompanied by a statement of- his claim and an affidavit.

A notice of the time, place and terms of sale was given in a newspaper, published in Baltimore County, and also in a newspaper published in the City of Baltimore, and the City was designated as the place of sale. In accordance with this notice the mortgagee, Haeffer, proceeded on the 20th of December, 18⁷⁷, to sell and did sell the mortgaged premises by public auction at the Exchange Salesrooms in the City of Baltimore. This' sale was duly reported to the Circuit Court for Baltimore County; several objections were filed by the appellants to its ratification, and among them is the objection, that the sale was. made in the City of Baltimore, and not in the county where the land is situated. The objections were all overruled, and an order passed finally ratifying the sale.

From this order of ratification the appellants have appealed; and the question is presented whether under the provisions of the Code a power can be given in a mortgage to a mortgagee to sell mortgaged premises outside of the county in which they are situated. There can be no doubt that the instrument in question is a technical mortgage. The question as to whether it is not to be regarded as in the nature of a deed of trust, ¹⁹⁰ does not therefore arise, and has not been presented by either side. The sale was not made under a decree of foreclosure, hut the party mortgagee has proceeded under the powers conferred by Art. 64 of the Code.

The 5th section of that Article authorizes a clause, to he inserted in all mortgages, empowering the mortgagee or any other named person to sell the mortgaged premises, upon such terms and on such contingencies as may he expressed therein. If other sections of the Article were silent as to the place of sale, the words “ terms ” and “ contingencies ” as used in that section might he extended in their meaning to embrace it; hut where other sections fix and designate the place of sale, they must he understood in such sense as will harmonize the sections of the Article. We understand these words to designate the terms as to cash or credit upon which the mortgaged property is to he sold, and the existence of circumstances, such as default in payment,-under which the mortgagee or party named in the mortgage may proceed to sell. The language of the 14th section is express in its terms, that all mortgage