White v. McClellan

Robinson, J., delivered the opinion of the Court. ° On the 8th of December, 1841, Henry C. McClellan executed a mortgage to Joseph C. Wilson of' five parcels of ground in Baltimore; and agreed, upon default in the payment of the mortgage debt at maturity, that the mortgagee might sell the mortgaged premises in the manner authorized by the Act of 1836, chapter 249, entitled “ An Act relating to mortgages in the City of Baltimore.” The mortgage debt not being paid at maturity, Wilson in pursuance of this power, on the 24th May, 1848, sold the mortgaged property at public sale. At this sale, Wilson bought lots No. 1, 2, 3 and 5, and Richard S. Hardesty bought lot No. 4.. One of the lots thus purchased, Wilson afterwards sold and conveyed to Miles White. On the 9th September, 1854, more than six years after the sale, a bill was filed by McClellan claiming the right to redeem the mortgaged premises upon payment of the mortgage debt and interest; and asking that an account be taken of the rents and profits received by Wilson, and those claiming under him.

To this bill, Wilson on the 8th March, 1855, filed an answer under oath, setting up among other things, his title to the property under the sale to foreclose the mortgage. No further proceedings were taken in the case, until March, 1859, when a hill of revivor was filed by the appellees, claiming to be heirs-at-law of Henry C. McClellan, the mortgagor. A commission was subsequently issued, and testimony taken, and the case was set down for hearing on the 26th November, 1864. From this date for a period of nearly twenty years, no further steps were taken to bring the controversy to an ³⁵⁰ end.

In the meanwhile, Miles White died, and the appellant his devisee being about to sell one of the lots, discovered that this case was still pending. Upon his petition, he was made á party to the suit, and on the 9th July, 1883, nearly thirty years after the original hill was filed by McClellan, and thirty-five years after the property wa# sold under the mortgage, a decree was passed setting aside the sale thus made as null and void. In support of this decree it is urged that the Act of 1826, being in derogation of the well established principles of equity, to support a sale under it, there must he the strictest compliance with every requirement of the statute. We have nothing to do of course with the policy or expedience of the Act; and however anomalous and extraordinary some of its provisions may he, yet if they have been fairly and substantially complied with, the rights of bona fide purchasers under it must he protected.

The mortgagor McClellan agreed that upon default in the payment of the mortgage debt, the mortgagee might sell in the manner authorized by the Act of 1836; and this Act provides that every sale made in pursuance of such a power, to a bona fide purchaser, “shall be equivalent to a foreclosure and sale under a decree of a Court of equity, so far as to he an entire bar of all claim or equity of redemption of the mortgagor.” What then are the requirements of this Act ? Sections 2 and 3, provide “ that in order to entitle any person to foreclose a mortgage according to the provisions of this Act, notice that the same will be foreclosed by a sale of the mortgaged premisés, or some part of them, shall be given by publishing the same three times a week for three weeks ; ” * * * “ that every such notice shall specify the name of the mortgagor and of the mortgagee, and the last assignee of the mortgage, if any; the date of the mortgage ; the amount claimed to be due thereon,” &c. ³⁵¹ It is claimed that the foreclosure proceedings now in question failed to comply with the statute in several material particulars. First, it is said the statute expressly provides that the notice of sale shall specify the name of the mortgagee and of the last assignee, if any- — -that the mortgage in this case had heen assigned hy Wilson to Michael Herr, and the notice was defective because it did not state the fact of assignment, and the name of the assignee. How if Herr was the assignee at the time of the notice of sale, there might be some force in this objection.

Being the party beneficially interested, it would have been his duty to have given the notice of sale, and to have performed all other duties required by the Act in making sale of the property. The record however shows, that although the mortgage had been assigned to him, yet at the time of the notice of sale, he had no interest whatever in it. Wilson in his answer to the bill of McClellan, says, it was assigned to Herr as collateral security for money borrowed with