Webster v. Williams

Briscoe, J., delivered the opinion of the Court. The mortgaged property, in this case, was sold by the appellee, as attorney named in the mortgage, and the sale reported to the court. The mortgage is dated on the 30th day of November, 1921, and was executed by the appellant and wife to the Harford Bank of Bel Air, to secure an indebtedness of $4,500. There was a first or prior mortgage on the property for $3,500, dated the 22nd day of June, 1908, and payable at five years from date, to1 one John A. Bussell.

The prior mortgage was in default on both principal and interest, and the appellee was the attorney named in both mortgages. By virtue of the power contained in the second or the bank’s mortgage, and the default made thereunder, the appellee as attorney advertised the property mentioned in the mortgage for sale at public auction, giving more than twenty days’ notice of the time, place, manner and terms of sale, by publication in the Bel Air Times and the Harford Democrat, two newspapers published in Harford County. In the report of sale, it is stated that, in accordance with the notice', the attorney named in the mortgage attended at the court house door, in Bel Air, on Monday, the 2nd day of October, 1922, at eleven thirty o’clock A. M,, and then and there offered the mortgaged premises at public auction, with the understanding that the same would be sold free and clear ¹⁶⁴ of the prior mortgage for thirty-five hundred dollars ($3,500) and accrued interest, held by a certain John A. Russell, and sold said property to the Harford Bank of Bel Air, Maryland, at and for the sum of eight thousand dollars ($8,000), it being then and there the highest and only bidder therefor, and said purchaser has agreed in writing to pay said purchase money according to the terms of sale, as advertised, and with the aforesaid understanding, as by said agreement herewith filed as a part of the report. The agreement appears to be as follows: “The Harford Bank, of Bel Air, has this day purchased from Stevenson A. Williams, attorney named in the above-mentioned mortgage, all the mortgaged premises described therein, consisting of the residence' property in which Mr. and Mrs. Webster formerly resided, bounded by the Rock Spring Road, the road from Scott’s corner to Red Pump, Roland Avenue and Hall Street, with the understanding that it was purchasing the same clear of incumbrance; that is to say, that the prior mortgage of John A. Russell with accrued interest should be paid out of the proceeds of sale, at and for the sum of eight thousand dollars ($8,000) payable according to the terms of sale prescribed in the annexed notice of sale, the said premises being more fully described in said notice, and the said bank agrees to comply with the terms upon the ratification of sale by the Court. “Witness the seal of said bank and the hand of the vice-president,- duly attested by its cashier, this 2nd day of October, 1922.

(Seal) “The Harford Bank, By Wm. H. Harlan, Vice-President. Prank H. Jacobs, Cashier. ¹⁶⁵ The terms of sale, as contained in the notice, were one-third of the purchase money in cash on day of sale, one-third in six months, and the balance in twelve months, or all cash on day of sale, at the option of the purchaser, the credit payments to bear interest from day of sale and to be secured by the notes or bonds of the purchaser with surety to be approved by the attorney named in the mortgage. The appellant filed exceptions to the ratification of the sale, as reported, upon the ground, first, that the property was sold under the second mortgage on the property where only the equity of redemption of the mortgagors could be sold, there being no notice of the first mortgage either in the advertisement of the sale, or otherwise, and the attorney reported the sale as having been made to the mortgagee free and clear of the first mortgage held by John A. Russell, amounting to $3,500 with accrued interest; that if said sale is ratified as having been made free and clear of the first mortgage as aforesaid then the price at which it was sold, viz., $8,000, is inadequate; second, that said sale should be reported as made to the mortgagee, at the price of $8,000, subject, of course, to the first mortgage for $3,500, with accrued interest.

Additional objections to the