Black v. Carroll

| Md. | Mar 17, 1866

Bartol, J.,

delivered the opinion of this Court.

The appeal in this case is from an order of the Superior-Court of Baltimore city, ratifying a sale made in pursuance-of a decree passed under the provisions of the Code, volume 2, Art. 4, section 782 ; embodying the provisions of the Act of 1833, ch., 181, relating to mortgages in the city of Baltimore.

Two exceptions to the ratification of the sale were filed by the appellant.

1st. That the decree was not passed in accordance with the provisions of the Code.

2nd. That the execution of the decree was suspended by the Act of 1861, ch. 17.

The appellee contends that this not being an appeal from the decree, the appellant is not entitled to be heard upon the first exception. We do not concur in this view. It has been repeatedly decided by this Court that in such cases an appeal may be taken from the decree ; but it has never been held that the validity and regularity of the decree may not be inquired into upon exceptions to the sale. In Eichelberger vs. Harrison, 3 Md. Ch. Dec., 89, the late Chancellor held that the proceeding under the Act of 1833 “ was contemplated to be ex parte, until after the decree and the sale under the decree, and that the propriety of the decree, and the validity of the sale made thereunder, were to be inquired into and contested after the passage of the order of ratification nisi, and before the final order of confirmation should be passed.”

In this opinion of the Chancellor we entirely concur. We refer also to Hays vs. Dorsey, 5 Md. Rep., 99, in support of this opinion.

The only objection to the decree relied upon in this case, under the first exception, is that it was entered after default, and for that reason, it is alleged to be contrary to the provisions of the Code, which the appellant contends authorize a decree only before default. This objection is not supported either by the words of the Code or by any decided case. By the Code it is provided that the proceeding may be taken at any time after the filing of the mortgage to be recorded, and the Court is authorized “ thereupon forthwith to decree that the mortgaged premises shall be sold at any of the periods limited in the conveyance for the forfeiture of the mortgage, or limited for a default of the mortgagors.” The plain meaning of this provision is that where the decree is entered before default, no sale shall be made till something is due upon the mortgage. But there is nothing in the language that limits the remedy of the mortgagee within the period before the forfeiture; on the contrary, the proceeding is authorized to betaken “ at any time” after the recording of the mortgage, without regard to the time limited therein for a default of the mortgagor. He is protected against a sale until he makes default ; but there is nothing in the words of the Code that denies to the mortgagee the benefit of the remedy after the default has occurred. This in our opinion is the plain meaning of the law, and if the question were now presented for the. first time, we should have no difficulty in adopting this construction. But it is supported by several decisions of this Court in cases arising under the Act of 1833, ch. 181, which in this respect was identical with the provisions of the Code.

In Ing vs. Cromwell, the proceeding was instituted after default, and the decree was affirmed. 4 Md. Rep., 31, 36.

In Hays vs. Dorsey, 5 Md. Rep., 99, which was also a proceeding under the Act of 1833, a decree passed after default was affirmed. It is supposed by the appellant’s counsel that no power to pass a decree after default was conferred by the Act of 1833, because, by the 3rd section of the Act of 1839 ch. 58, it was enacted " that the decree authorized by the second section of the Act of 1833 may be passed as well after as before the period limited in the mortgage for the payment of the debt, or for the foreclosure of the mortgage.” Looking at the words of the Act of 1833, it is not easy to discover why the third section of the Act of 1839 should have been passed ; as it is apparent that the latter does not confer any new or enlarged power on the Court., or give anvright on the mortgagee which was not given by the original Act. The Legislature may have had some doubt as to the construction of the Act of 1833, but as there was no good ground for that doubt, the third section of the Act of 1839 must be taken as merely declaratory of the preexisting law, and therefore the appellant’s objection derives no force from the fact that the third section of the Act of 1839 has not been embodied in the Code.

The case of Kenly vs. Wierman’s Ex’r., 18 Md. Rep., 302, has been cited and relied on by the appellant’s counsel, as one express decision that under the Act of 1833 no power was given to enter a decree after default; a brief examination of that case will show that the opinion of the Court has been misconstrued.

The only question there involved was whether the mortgage upon which the decree had been passed contained the assent of the mortgagor to the passage of a decree according to the provisions of the Act of 1833 and its supplements ; and this Court being of opinion that the terms of the mortgage did not authorize the summary proceedings under the Act, the decree was reversed. The case turned altogether upon the construction of the mortgage in this particular. What was said in the opinion of the Court with regard to the Acts of 1833 and 1839, must be understood as referring to the question involved, and was designed to express the idea that by both Acts, the assent of the mortgagor was required. It may be proper to add in explanation of that part of the opinion, that the particular question now under consideration did not arise in the case, and there was no intention on the part of the Court to declare that a decree might not be passed under the Act of 1833, after default as well as before, provided the mortgage contained the assent of the mortgagor, in such terms as the Act prescribed.

In the opinion of this Court, the objection of the appellant to the decree in this case was properly overruled by the Superior Court. We are also of opinion that the exception to the sale, based on the Act of 1861, ch. 17, was properly overruled.

(Decided March 17th, 1866.)

The appellant in the argument of the cause, has made the point, that the Act of 1861 was a law impairing the obligation of contracts, and therefore unconstitutional and void, and in support of this view has cited the cases of Bronson vs. Kinsey, 1 Howard, 319, and McCracken vs. Hayward, 2 Howard, 608. Upon this question we express no opinion. It is one of great delicacy and importance, and ought not to he passed upon, unless absolutely necessary' for the determination of the case. Here-there is no such necessity, because this case clearly falls within the saving provisions of the third section ; and assuming the Act to he free from objection on constitutional grounds, the sale may he supported under the third section, which expressly excepts from the operation of the Act, “ decrees or judgments for the payment of interest or tax as between parties-to mortgages, judgments or other contracts, upon which said interest or taxes are payable at a specified time or-times.”

The record before us shows that the decree was rendered in part for interest and taxes due under the mortgage, upon-which there was no stay of execution under the act of 1861, and for which the property was liable to be sold. The property mortgaged was in one parcel, indivisible, and could therefore he sold only in' its entirety. No valid objection therefore can he made to the sale under the decree.

An order will he signed affirming the order appealed, from with costs to the appellee and remanding the cause. •

Order affirmed, and cause remanded,.