84 Md. 637 | Md. | 1897
delivered the opinion of the Court.
The question in this case is of considerable interest. James S. Cockey and others mortgaged certain land to Thomas H. Gaither for seven thousand dollars. In course of time it became necessary to sell the land for the payment of the debt; and for the purpose of having a sale made, the mortgagee assigned the mortgage to George R. Gaither, Jr., attorney at law, by writing under his hand and seal. This assignment is dated May the second, eighteen hundred and ninéty-five. The mortgagee had in the previous February placed the mortgage debt in the hands of Gaither & Clabaugh, a law firm, for collection by foreclosure. Mr. George R. Gaither, Jr., is a member of this firm. The land was sold and the sale duly ratified. The auditor allowed among other claims the trustee’s commissions amounting to four hundred and two dollars to George R. Gaither, Jr., who made the sale, and attorney’s commissions for collecting the debt, amounting to three hundred and seventy-seven dollars and some cents, to Gaither and Clabaugh. Mrs. Tolson, the holder of a second mortgage, filed an exception to the allowance of the attorney’s commissions, and the exception was sustained by the Court.
The mortgagors covenanted in the mortgage among other things to pay the debt and interest intended to be secured by it; all costs and attorney’s commissions incurred in the collection of it, or any part thereof, and all prior liens on the property. And it was provided that the proceeds of sale should be applied, first, to the payment of all prior liens, and secondly, to the payment “ of all expenses incident to the sale, including compensation to the person making the
We have read and carefully considered the opinion of the learned Judge who decided this cause in the Court below. But we are not able to agree to his conclusions. The order sustaining the exception to the auditor’s report is reversed, and the auditor’s report must be ratified and confirmed.
Order reversed, and auditor's report ratified and confirmed.