190 A. 520 | Md. | 1937
The appellant, Dave B. Kirsner, appealed from a decree inpersonam of the Circuit Court of Baltimore City against him for a deficiency after the foreclosure of a mortgage held by Sarah Cohen, appellee and assignee.
Questions have been raised as to the validity of this sale because of the inadequacy of price, but no objections were filed to its final ratification; consequently no appeal lies from that action. The purchase price of the property is $1,500, and the amount due on the property was $5,000, with accrued interest, and after the deduction of the sales price of the property from the debt, interest, and costs, there was left due and owing to the appellee a large balance, as shown by the auditor's account. There were *689 exceptions to the ratification of the audit for the reason that the account was incorrect as to the amount stated to be due on the principal of the mortgage, because of usurious interest charges and payments made by the mortgagor, and for certain other reasons not involved in this appeal.
The chancellor, after a hearing on these exceptions, passed a decree allowing an abatement of $1,000 on account of the deficiency ascertained by the audit, and held the deficiency after this allowance to be $3,850.52. The other exceptions were overruled, and the audit was finally ratified and confirmed, from which action there was no appeal.
It was for this amount that Sarah Cohen, appellee, filed her motion for a decree in personam against the appellant, who answered, denying the right of the appellee to have a decree for the said balance due and unpaid on the mortgage debt. The jurisdiction of the court to grant the motion was denied, both as to the parties and to the subject-matter. It was charged that an adequate remedy at law was afforded to the appellant, and that due process of law was denied to him, in that he is entitled to a verdict of a jury in determining the balance due on the mortgage, if any; and that because of the depressed condition of the real estate market a fair sale could not be made, as evidenced by the inadequacy of price; and other reasons assigned and presented in the argument at bar.
We repeat that there were no objections to the ratification of the sale, and the questions as to its validity, because of irregularities, inadequacy of price, the depressed conditions of the times, whatever their effect may be, should have been interposed before the ratification of the sale. Bainder v. SoundBldg. Loan Assn.,
Under the provisions of Code, art. 16, sec. 232, such a decree is permitted in all cases where there could be a recovery on the covenants of the mortgage in a suit at law, and the same defenses that might be there urged may be set up in this proceeding.County Trust Co. v. Harrington,
The constitutionality of this act and of this proceeding under it cannot be rightfully questioned. Its purpose was declared inCommercial Building Loan Assn. v. Robinson,
In the case at bar the amount or balance due on the mortgage was established by the order of ratification of the audit, which stood without appeal, and is the basis of this proceeding, and, this being so, the appellant cannot justly complain that any of his rights have been abridged.
The contention that, because of the depressed condition of the real estate market, the sale was not or could not have been properly made, has been before this court, and that question has been disposed of. Kenly v. Huntingdon Bldg. Assn.
Had the appellant desired to raise this question, he should have done so by objecting to the ratification of the sale.
This question arose upon a motion for a decree in personam,
and the contention that the appellee, as an assignee of the mortgage, may not maintain an action at law on the covenants of the mortgage and, therefore, cannot maintain her motion for this deficiency judgment, is *692
answered in the case of Parks v. Skipper,
Decree affirmed, with costs to the appellee. *693