45 Md. 396 | Md. | 1876
delivered the opinion of the Court.
This appeal presents the case of exceptions to a sale made under a deed of trust, and reported for ratification by the Court, as required by the Code, Art. 81, secs. 107 and 111, as re-enacted with amendments by the Act of 1874, chapter 483.
The deed was made by the grantor in pursuance of an agreement with his creditors for an extension of time on his indebtedness ; and the appellant, according to the allegation in the exceptions filed, is the holder of part of the evidences of such indebtedness of the grantor intended to be secured by the deed, and has thus become interested in the execution of the trust.
The ratification of the sale is excepted to on several grounds: First, because the property, although situated in Baltimore county, was sold in Baltimore city, regardless of that provision of the Code, Art. 64, sec. 14, which requires that all mortgage sales shall be made in the county or city where the mortgaged premises are situated. Secondly, because the notice of sale was not given by advertisement in some newspaper printed in Baltimore county, where the property is situated ; the Code, Art. 64, sec. 7, requiring that all mortgage sales made in pursuance of the power authorized to be inserted in any deed of mortgage, where the notice is not provided for in the mortgage, or otherwise agreed upon, shall be made after twenty days notice of the time, place and terms thereof, by advertisement in some newspaper printed in the county where the mortgaged premises may be located. Thirdly, because the sale was not fairly made; that it was made on the day of a general State election ; and that the property was sold for a grossly inadequate price.
The two first grounds relied on, those relating to the notice and the place of sale, are involved in and dependent upon the question, whether the deed of the 17th of November, 1874, under which the sale was made, is a mort
1. As to the question of the character of the deed, upon careful examination of its provisions, we are of opinion that it is not a technical mortgage, within the contemplation of the 5th section of the 64th Art. of the Code referred to, but a deed of trust, clearly denominated such by the Code, Art. 24, sec. 55. It is a deed of ti’ust to secure debts; and while it has some of the attributes of a mortgage, yet it presents features which distinguish it from that class of security, strictly considered. By the legal, formal mortgage, as distinguished from instruments held to be mortgages by construction of Courts of equity, the property is conveyed or assigned by the mortgagor to the mortgagee, in form like that of an absolute legal conveyance, but subject to a proviso or condition by which the conveyance is to become void, or the estate is to be reconveyed, upon payment to the mortgagee of the principal sum secured, with interest, on a- day certain and upon non-performane of this condition, the mortgagee's conditional estate becomes absolute at law, and he may take possession thereof, bait it remains redeemable in equity during a certain pei’iod under the rules imposed by Courts of equity, or by statute. 1 Fish, on Mort., 7 ; Jamieson vs. Bruce, 6 Gill & John., 72; Evans & Iglehart vs. Merriken, 8 Gill & John., 39. And in accordance with this description of a strict legal mortgage, is the' formula given in the Code, Art. 24, sec. 60. We do not, however, for a moment intimate that a mortgage can be in no other form than that here given; but the form to which we refer clearly indicates the attributes and essential qualities of a
The case of Wilson vs. Russell, 13 Md., 495,'relied on by the counsel of the appellant, and where the instrument in question was sometimes spoken of as a deed in the nature of a mortgage, and sometimes as a deed of trust, does not support the position of the appellant’s counsel in this case. There the deed was not a conveyance for the benefit of creditors generally, nor an assignment of the property of the grantors for the payment of their existing debts; but it was intended to secure two named parties the payment of an old debt, and certain notes agreed to be loaned under the deed; the amount thereof being specifically stated on the face of the instrument. It was not pretended, in that case, that the deed was a technical mortgage.
Being of opinion that the deed before us is not a mortgage within the meaning of the Code, Art. 64, sec. 5, it follows that the requirements of the 7th and 14th sections of the same Article of the Code have no application to the sale made and reported by the trustee in this case.
2. Having determined that the deed is not a mortgage, but a deed of trust, and therefore not within the meaning of the Code, Art. 64, sec. 5, the next question is, was the sale fairly made, and for a price that ought to be sanctioned by the Court? And upon careful examination of all the evidence that the record contains we can have no hesitation in saying that there is nothing disclosed that would have justified the Court below in refusing ratification of the sale. It is certainly true that the trustee was in duty bound to offer the estate under the best possible advantage for the interest of those for whom the trust was created. He was bound to due diligence in giving full
Upon the whole, finding no sufficient ground for vacating the sale reported by the trustee, the order appealed from will he affirmed, with costs to the appellees.
Order affirmed, and cause remanded.