Webster v. Archer

Offutt, J., delivered the opinion of the Court. Seth B. Taylor, on May 5th, 1915, executed to Noble L. Mitchell a mortgage on two lots of ground at and near the village of Aldino in Harford County, to secure the repayment of a debt of §1600.- Title to that mortgage passed eventually by mesne assignments to J. Glasgow Archer, who, on June 30th, 1938, instituted in the Circuit Court for Harford County pro ²⁴⁹ ceedings to foreclose it, and on August 2nd, 1938, reported a sale of it to Nelson Cooper and Myrtle B. Cooper for $2050. On July 13th, 1938, Henry Webster and William H. Harlan, executors of Edwin H. Webster, filed a petition in the proceedings in which they alleged that they held a second mortgage for $800 on the land covered by Taylor’s mortgage to Mitchell, and also a judgment against Taylor and his wife for $962.67, which they prayed might be allowed out of any surplus that might result from the foreclosure. On August 23rd, 1938, they filed exceptions to the sale reported by Archer, on these grounds: “(1) Because the mortgaged property consists of two separate and distinct tracts of land; one containing two and one-half (21/j) acres, more or less, improved by a substantial dwelling house and numerous outbuildings and very advantageously situated as a residence on the south-west corner on the Churchville-Aldino Road and the Old Church Road; and the other, of a tract of ten (10) acres and thirty-one (31) perches, more or less, situate a long distance from the first mentioned tract and unimproved and the trustee offered both of said tracts together and sold the the same to Nelson J. Cooper for the above sum. “(2) Because said sale was at a totally inadequate price and would cause a serious loss to your objectants. “(3) Because your objectants are informed and believe that the Assignee had stated to prospective buyers that he would offer these tracts separately, but at the last moment, changed his mind and offered them together. “(4) Because your objectants are further informed and believe that persons were present at the sale prepared to bid on and buy these tracts as separate properties, but no opportunity was given them by the Assignee to bid thereon. “(5) Because your objectants are further informed and believe that if said tracts are offered separately, buyers will be found who will buy at substantially higher figures,” and later alleged as additional grounds that the ad ²⁵⁰ vertisement was not only inadequate but misleading, and that the assignee sold more property than was necessary to satisfy the mortgage, accrued interest and costs.

In connection with those exceptions testimony was taken, the parties heard, and at the conclusion of the hearing the court over-ruled the exceptions and on October 8th, 1938, ratified the sale. This appeal is from those orders. The most important objection to the sale argued in this court was that the two parcels of land were not contiguous, that only one was improved, and that had they been offered separately the improved lot would have been sold for enough to pay off the first mortgage, thereby releasing the second Tot from the lien of that mortgage. But there is nothing in the record to enable this court to find that the lots are not contiguous, or that they were not used together as a single tract.

The appellants did in their exceptions, which were verified by affidavit, allege that the lots were not contiguous, and the appellee admits in his brief that they are several hundred feet apart. But this is a court of appellate and not one of original jurisdiction. It cannot therefore notice facts not in the record, nor facts which, although in the record, are not properly authenticated, even though counsel for all parties agree and request that they be considered in dealing with the case (Riverdale Presbyterian Church v. Pugh & Co., 154 Md. 550, 553 , 140 A. 844 ; Price v. Miller, 165 Md. 578, 580 , 169 A. 800 ), for a record can not be made in this court but must be made in the trial court. This court in Hart v. Hart, 165 Md. 77, 78 , 166 A. 414 , in deciding an appeal from an order dismissing a petition to strike out a j udgment by confession, said that the trial court would consider admissions made by the pleadings of the parties, and that since the plaintiff did not deny by “subsequent pleadings” allegations of facts which required affirmative proof on the part of the defendant and petitioner, that such averments, with the record of prior proceedings in the case, might be regarded as the facts upon which the trial court acted in dismissing the peti ²⁵¹ tion.

The court there however was dealing with the practice in actions at law, which is characterized by this vital and basic difference from the practice in equity. The object and purpose of pleading and practice at law is to have the parties, by a series of allegations and denials presented in orderly sequence, come at length to some sharp clearly defined issue of law or of fact, and ordinarily the failure of one party to traverse the facts alleged in a pleading will be taken as an admission of such facts (1 Poe, PL & Pr., sec. 2), while in equity the pleader may admit the facts charged, deny them, or disclaim such knowledge as will permit him to either admit or deny them, and require the party alleging the facts to prove them, and in cases where no answer is required, no allegations of facts alleged in a motion or petition will be considered unless admitted or proved, although Chancellor Bland in Chase’s Case, 1 Bland 206 , 212, in a statement not wholly consistent with that view, said: “If a petition of this kind, bringing before the court a matter which could not have been made the subject of a mere motion, because of the necessity of putting upon the record the new facts therein set forth, and apprising the party of all the circumstances on which the application is made, so as to enable him to controvert them, if he can; be not regularly and properly denied by a written answer on oath, the whole, or so much of it as is not denied must, by analogy to the course of this court in similar cases, be taken to be true. Shipbrooke v. Hinchingbrook, 13 Ves. 393; 2 Harr. Pra.

Chan. 40, 129, 133.” But in that case a show cause order had issued upon the petition for a receiver against the respondent, who had the control of property in which she claimed dower. But since the object of equity jurisprudence is to so deal with forensic controversies as to do full, adequate, and complete justice between the parties, in accordance with the dictates of natural justice and good conscience, unfettered by the formalism and inflexibility which in varying measure limits the power of law courts, equity practice requires the parties in their pleadings to fully, candidly and hon ²⁵² estly disclose every matter and fact known to them, knowledge of which is essential to a full, just, and equitable settlement of the entire controversy. As a natural corollary of that principle, the pleader is also under an obligation to convince the court by proper proof of the truth of his allegations. So, even in cases where a decree pro confes.so against a defendant may be entered for his failure to appear and answer, the court may nevertheless require the plaintiff to support the allegations of his bill by adequate proof.

General Equity Rule No. 16. And in cases where no answer is required, as in exceptions to a judicial sale or to an auditor’s account, the uniform practice in this state is to disregard any allegation made in such exception, petition, or motion, the truth of which is not admitted nor apparent on the record, unless it be supported by proof. So in Farmer v. Loyola College, 166 Md. 455, 461 , 171 A. 363 , it was said: “Of course, the bill of complaint, although sworn to, is not evidence of the facts therein alleged, in favor of the plaintiff.” And in Northrop v. Beale, 170 Md. 439, 444 , 184 A. 900, 902 , quoting Miller on Equity Proc., sec. 601, in speaking of exceptions to a sale it was said: “Mere exceptions on questions of fact, without evidence, although under oath, and although the answer to the exceptions does not deny their averments, must be over-ruled.” The same thing was said in Forest Lake Cemetery Co. v. Baker, 113 Md. 529, 537 , 77 A. 853 ; Roberts v. Loyola Bldg. Assn., 74 Md. 1 , 21 A. 684 , (Perp.) ; Thom v. Baltimore, 154 Md. 273, 289 , 141 A. 125 ; Sunderland v. McAbee, 143 Md. 81, 83 , 121 A. 844 ; O’Sullivan v. Buckner, 107 Md. 33, 36 , 68 A. 356 .

In Sunderland v. McAbee, supra, the court quoted with approval the statement in Forest Lake Cemetery v. Baker, supra, that, “where facts are relied on in exceptions to a sale they must be shown by proof, and the burden is on the exceptant to establish them. His affidavit to the exceptions is not sufficient, even when the facts alleged are not denied by an answer.” See, also, 21 C. J. 548, et seq. ²⁵³ Disregarding therefore the statements in the exceptions, in the absence of any proof of any kind as to their relative location it cannot be assumed that the two lots were not contiguous. If they are contiguous and used by the mortgagors together as a single tract of land, there can be no reasonable criticism of the advertisement of sale on the ground that it failed to state on which lot the improvements were located, or that the two lots were separate and independent of each other. Nor, in the absence of any proof that the lots are not contiguous, is there any substantial merit in the objection that the trustee did not offer them separately before offering them together as a single tract.

They were described in the mortgage not by metes and bounds but by reference to title deeds, and as “containing together twelve acres, two roods and thirty-one perches, more or less,” which is some evidence of the fact that the mortgagor regarded them as one property. In this case that objection may be considered with the objection that the trustee sold more of the property than was necessary to pay the mortgage debt, interest and costs. In dealing with these objections it must be remembered that there is no presumption against the validity of a mortgage or other judicial sale reported by an assignee for foreclosure, a trustee, or any other judicial officer, but on the other hand there is a presumption that the sale was fairly made, and that the antecedent proceedings, if regular on the face of the record, were adequate and proper, and the burden is upon one attacking the sale to prove the contrary, Lewis v. Beale, 162 Md. 18, 22 , 158 A. 354 ; 41 C. J. 1032; Northrop v. Beale, 170 Md. 439 , 184 A. 900 ; Johnson v. Dorsey, 7 Gill 269, 287 . An assignee selling mortgaged property at a foreclosure sale is a trustee for the mortgagor and persons claiming under or through him (Miller’s Equity Procedure, secs. 456-458, citing Berry v. Skinner, 30 Md. 567, 574 ; Powell v. Hopkins, 38 Md. 1, 12 ; Mackubin v. Boarman, 54 Md. 384, 388 ; Wicks v. Weston, 59 Md. 270, 277 ; compare Wareheime v. Carroll County Bldg.

Assn., 44 ²⁵⁴ Md. 512, 520; Korns v. Shaffer, 27 Md. 83, 89 ), and is under a duty (1) to exercise the same degree of prudence, care, diligence and judgment, that a prudent man of ordinary business judgment and experience would exercise, in selling his own property, to see that the property is sold for the best price obtainable at such a sale (Miller’s Equity Proc., sec 456; Wicks v. Wescott, 59 Md. 270, 277 ), and (2) to