Dill v. Satterfield

34 Md. 52 | Md. | 1871

Bartol, C. J.,

delivered the opinion of the Court.

This is an appeal from an order' passed by the Circuit Court for Caroline County, sitting in Equity, awarding to the appellee a writ in the nature of a writ of habere facias possessionem,.

It appears from the record that the appellant executed a deed of mortgage to J. Hopkins Tarr, conveying certain lands with the usual condition. The mortgage gave to the mortgagee a power to sell on default. It was assigned to Charles E. Tarr, and by him was afterwards assigned to the appellee, who proceeded to sell in execution of the power conferred by the mortgage, and after complying with the requirements of the Code, Article 64, sections 5, 6, 7, 8, et seq., himself became the purchaser. The sale was reported to the Court, and the appellant filed exceptions thereto, which were heard and overruled, and the sale was finally ratified and confirmed.

• In answer to the rule to show cause against the writ of possession, the appellant assigned the following causes:

1st. Because the alleged assignment of the said mortgage made by Charles E. Tarr to William C. Satterfield, has never been recorded as required by law.

2d. Because the said mortgage confers the power to sell on J. Hopkins Tarr alone, and the said authority is not transferred by the assignments of said mortgage debt.

3d. Because said William C. Satterfield is not entitled by law to have the writ of habere faeias issued in his behalf.

4th. Because no bond was filed by said Satterfield as required by law.

The first and fourth grounds of objection resting upon averments which were disproved, have been abandoned.

The third objection is answered by the provisions of the Act of 1864, cli. 283, (Sup. to Code, 187,) which in terms entitles the purchaser to the writ, where the sale has been made under a power to sell contained in a mortgage.

The second cause or ground alleged, remains to be considered, this rests upon the position that the power to sell was conferred on the mortgagee alone, and could not be executed by the assignee of the mortgage. This objection was open to the appellant before the sale was ratified, and the record shows that it was then made and decided by the Court, when they disposed of the exceptions to the sale. We concur with the Court below in the opinion that the decision of the question then made concluded the appellant; and that he could not afterwards raise it, in a collateral way, in answer to the application for the writ of habere.

But without resting our opinion on this ground, we think a conclusive answer to this objection is found in the recent decision of this Court in Berry vs. Skinner, 30 Md., 567, where it was held that “the power of sale contained in a mortgage made pursuant to the Code, Article 64, is a power coupled with an interest in the premises conveyed by the mortgage deed, is appendant to the estate, a part of the security itself, and passes with the estate by an assignment of the mortgage debt.”

(Decided 15th February, 1871.)

Under that decision it is clear that no valid objection to granting the writ of hctbere facias can be made in this case, by reason of the sale having been made by the appellee, who was assignee of the mortgage, even if the question could be raised in the present proceeding.

The order of the Court below granting the writ will be affirmed and cause remanded.

Order affirmed and cause remanded.