88 A. 140 | Md. | 1913
This appeal is from a decree of the Circuit Court of Baltimore City dismissing the bill of complaint of the Lombard Governor Company and the National Meter Company against the Mayor and City Council of Baltimore, and certain other defendants.
The material allegations of the bill are to the following effect: In May, 1910, the McCay Engineering Company entered into a contract with the Mayor and City Council of Baltimore, known as Sanitary Contract No. 51, by which the McCay Company "undertook to furnish the electrical and mechanical equipment, to erect metal stairways, build special floors, piers and abutments, and other parts of and equipment for a building for the Sewage Disposal Works erected under the supervision of the Sewerage Commission of the *305-320
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Certain suburban land was sold under foreclosure proceedings subject to the lien of a prior mortgage; the prior mortgage contained provisions for releasing the land from time to time in one or more blocks into which it had been subdivided; according to the terms of the advertisement, the land was first offered by separate blocks and finally sold as an entirety; upon objection to the ratification of the sale on the ground that the land should have been divided and offered in separate lots instead of in bulk, it was held, that upon all the facts of the case no valid exception could be made on this ground to the ratification. p. 326
Mere inadequacy of price is not sufficient ground upon which to set aside a sale, unless it be so gross as to indicate mistake or fraud on the part of the trustee or mortgagee making the sale, or unless there is some just cause which the purchaser may be responsible for, which affords reasonable ground to suppose that the sale was improperly made. p. 326
Suburban property, consisting of 106 acres on the Pimlico Road near Baltimore, was sold under foreclosure proceedings for $36,000, subject to a prior mortgage of $66,000 and to other liens, costs and charges, making the actual aggregate purchase price $110,676; upon an exception to the ratification of the sale on the ground of inadequacy of price, it was held, that the price could not be said to be so grossly below its full value as to make proper a reversal of the decree ratifying the sale. p. 327
Decided June 25th, 1913.
Two appeals in one record from the Circuit Court for Baltimore County, in Equity (HARLAN. J.).
The facts are stated in the opinion of the Court.
The causes were argued together before BOYD, C.J., BRISCOE, BURKE, THOMAS, URNER, STOCKBRIDGE and CONSTABLE, JJ.
William Colton, for the appellant.
M.N. Packard and John M. Little, for the appellee. *322
STOCKBRIDGE, J., delivered the opinion of the Court.
The Wylie Heights Company was formed in the year 1907 for the purpose of developing a tract of about 125 acres on the northern edge of the City of Baltimore, lying partly in Baltimore City and partly in Baltimore County. The tract extended from the Pimlico road on the west to Green Spring avenue on the east, and with a portion of it lying to the east of Green Spring avenue. It was conveyed to the company by Gerald Hill, and was at the time of the conveyance subject to a mortgage of $100,000 which had five years to run from the 29th July, 1907. On July 29, 1907, the day when Mr. Hill conveyed the property to the Wylie Heights Company, that corporation executed a mortgage on the property for the sum of $25,000 to William B. Finney, which amount is recited in the mortgage to have been that day loaned and advanced to the Wylie Heights Company. While it does not in terms appear from the record, the inference is very strong that the purpose of this loan was to prosecute the development work on the property. The corporation having thus come into possession of the property, it had the same, or at least that portion of it lying between the Pimlico road and Green Spring avenue, platted in lots, streets laid out and to some extent graded and macadamized, some drains and sewerage pipes laid, and concrete walks put down to a considerable extent. By the Spring of 1912, out of 328 lots platted, 79 had been sold and 249 remained unsold. Defaults had been made in both mortgages and in April of 1912 Dr. Finney instituted proceedings to foreclose his mortgage.
Under the terms of the mortgage from Gerald Hill to Henry F. Carstens, Trustee, for $100,000, it was provided that the mortgagor and his assigns should have the right to sell the property in lots, and that the mortgagee would release lots having "an area of one acre and be in the form of a square,i.e., bounded by four sides of equal length at right angles to each other; any number of such lots may be included in a single release." For the release of each such lot fronting on the east side of the Pimlico Road, the mortgagee *323 was to be paid the sum of $5,000, and for each lot lying to the east of those fronting on the Pimlico Road and the west side of Green Spring avenue the sum of $2,000. At the time when the foreclosure proceedings were instituted, payments had been made upon the Carstens mortgage to an extent which reduced the amount then due on it from $100,000 to $66,807.03, and $1,000 appears to have been paid on account of the principal of the $25,000 due on the mortgage to Dr. Finney, although there was at this time a considerable accumulation of interest due and unpaid on each of these mortgages, besides the taxes for three years. In the prosecution of the improvements there had been two other mortgages placed on the property in 1910, one to Dr. Finney for $5,728 and one to Dr. Charles G. Hill for $25,000.
The property was sold under the foreclosure proceedings instituted by Dr. Finney on the 7th of May, 1912, subject to the outstanding mortgage to Carstens, upon which there was then due $66,807.03, and was bought in by the mortgagee Finney, for his own protection, for the sum of $36,000. It further appears from the testimony that the Wylie Heights Company in April, 1910, sold out to another corporation known as the Edgecombe Park Company. Upon the report of the sale, exceptions to its ratification were filed by both the Wylie Heights Company and the Edgecombe Park Company, and it is from the order of the Circuit Court for Baltimore County overruling these exceptions and ratifying the sale that each of these corporations have appealed.
The exceptions to the sale are twelve in number, but it is unnecessary to consider each one in detail, since they all may be grouped under three heads — first, the advertisement of the sale; second, the manner of the sale; and third, the adequacy or inadequacy of the price for which the property was sold.
With regard to the advertisement the objection made is twofold in character, insufficiency of the media through which the property was advertised, and insufficiency of description of the property. The evidence is that advertisement in full *324 was made in the Democrat and Journal, a paper published in Towson, and the Daily Record, a law and real estate paper published in the City of Baltimore, and that such advertisements were made for the full length of time required by law; that an abbreviated form of the advertisement appeared in the BaltimoreSun; that large placards were placed upon the property; that galley proof copies of the advertisement in the Record were mailed by the auctioneer to more than a hundred persons, who in his judgment, were likely to be interested as possible purchasers in the sale of such property, and that in all of said advertisements the public was advised that copies of a plat of the property and fuller details with regard to it could be had upon application to either the auctioneer or the attorney of the mortgagee. This advertising of the property was greater than is required by the law of this State, and therefore no valid objection can be had to the sale because of the means employed to give public notice of it. The objection of the sufficiency of description in the advertisement is not supported by the proof; that which the witnesses who testify to this really object to is not any misdescription or inaccuracy of description of the premises, but goes in reality to a different phase of the case, the judgment exercised by the trustees as to the manner of the offering of the property, and this involves the second of the grounds of the exceptions filed to the ratification of the sale, the manner of the conduct of the sale.
When the property was surveyed and laid off, it was divided into blocks and lots; the advertisement of the sale stated that the property would be offered by blocks, and subsequently as a whole, the mortgagee reserving the right to close the sale as a sale of blocks or an entirety, according as the property would produce most. The ground of the exceptions under this head, is that the property should have been offered by lots, instead of by blocks, for the purpose of attracting individual buyers for single lots, and the evidence is more or less conflicting upon this point. The situation was one which undoubtedly called for the exercise of judgment *325
to an unusual degree. In the case of Thomas v. Fewster,
The rule has been long and well settled in this State "that mere inadequacy of price, of itself, is not sufficient to set aside a sale unless it is so gross as to indicate misconduct or fraud on the part of the trustee or mortgagee making it, or there is some just cause which the purchaser may be responsible for which affords reasonable ground for supposing that the sale was improperly made." Conroy v. Carroll,
Upon the question of price the evidence in this case is very conflicting, and differs, therefore, radically from the case of *327 Robertson Co. v. Chambers,
Without reviewing in detail the opinions and reasons given by the different witnesses for their widely varying estimates, it will be sufficient to say, that the evidence offered upon both sides has been carefully examined and compared, and that as the result of such examination this Court cannot say that the witnesses of the appellee are entirely wrong, or that the price for which the property was sold was so grossly below its full value as to make it proper for this Court to set aside the sale.
The order of the Circuit Court for Baltimore County in overruling the exceptions and ratifying the sale will, therefore, be affirmed.
Order affirmed, with costs in each case to the appellee. *328