52 Md. 357 | Md. | 1879
delivered the opinion of the Court.
Erom the record in this cause we learn that the appellee, James Mackubin, is a trustee, under a decree of the Circuit Court of Baltimore City, and as such trustee had funds in his hands for investment, which, under the direction of the Court, were loaned, to the extent of $15,864.36, to John F. Shipley, who gave his note therefor, payable five years after date, with interest payable semi-annually, and for the interest gave notes maturing every six months during the term of the loan. To secure the principal and interest, according to the said terms of payment, the said Shipley executed a mortgage to the said James Mackubin, trustee, dated the eleventh day of February, 1810, on certain property in Baltimore County, conditioned for the payment of said interest notes as they fell due, and the principal, when it should become due, and upon any default, in any of the conditions of the mortgage, providing for a sale of the property by the said mortgagee as trustee. Just before the principal of said mortgage fell due, Shipley, the mortgagor, sold the property mortgaged to Ellen Mahoney, wife of John C. Mahoney, also one of the appellants, subject to the said mortgage, and to secure an extension for another year John C. Mahoney, husband of • the grantee, endorsed a written guaranty of the payment of the principal sum, or balance thereof, (which was $15,000.00,) and the interest semi-annually, stating in said
The exceptions relied on in this Court for setting aside the sale are five in number. 1. Because there was no default to justify sale. 2. Because the property was insufficiently described. 3. Because the weather was not fit for sale to be made. 4. Because sale was improperly conducted. 5. Because the property sold for a grossly inadequate price. We will consider them in the order presented. First. According to the terms of the extension secured by the guaranty of John C. Mahoney on the 30th of January, 1815, the principal fell due on the 11th of February, 1816, and unless, by arrangement with the parties in interest, such extension was agreed upon as would have entitled the appellants to the aid of a Court of equity to enjoin the appellee, Mackubin, from making the sale when he did make it, the objection, that there was no default, cannot avail as against the sale made and reported. We can find no proof in the record establishing any such arrangement and creating any such equitable estoppel as is relied on by the appellants. In this inquiry it must be remembered that the appellee, Mackubin, occupied a two-fold fiduciary relation. As mortgagee he was the holder of funds invested, by the Court’s order, in that mortgage, for the taking of which he was the Court’s agent, and held the same as trustee, for others whose interests he could not compromise legitimately, without the assent of the cestuis que trust, or of the Court. As
The only evidence from which an agreement to extend the time for payment of principal., is sought to he deduced, is the fact that the interest which fell due on the 11th of February, 1878, was received after it had been past due some days, and that there were some interviews between Mr. Mackubin and John C. Mahoney, one of the appellants, respecting such extension. The interest was due on the 11th of February, 1878, and the note for it went to protest hut was afterwards paid. It is too clear for argument that the acceptance of what was due for interest cannot, hy implication, he held to extend the time for the payment of the principal. The interviews between Mr Mackubin and Mr. Mahoney did not culminate in agreement for extension, and no express agreement is insisted upon; but it is urged that what was said in those conversations by Mr. Mackubin amounted to a waiver of the default made. We do not so read the proof. In the first interview Mr. Mackubin demanded the payment of five thousand dollars of the principal, to make the claim abundantly secure, of which, by reason- of the great shrinkage in real estate values, he had grown distrustful. Being importuned to withdraw that demand and indulge at least until the fall, Mr. Mackubin promised to see his cestuis que trust and see what could be done, provided Mr. Mahoney would at once go and have a certain policy of insur-ance assigned as collateral security, and would also pay the taxes unpaid, and get receipts for the same and send him the written evidence of such payment and such assignment, hy the following Monday morning. In the subsequent interviews these demands were .not withdrawn. Mr. Mahoney admits these demands and that they were not complied with hy the time named by Mr. Mackubin; hut he says that after having these talks he “ rested easy/’
The view we take of the matter makes it immaterial whether the taxes which were required to be paid were technically demandahle or not, about which the counsel for appellants have argued so ably, that as they could not he collected by distress at that time, they were not techni
2. The objection as to insufficiency of description of the property "in the advertisements is equally untenable. The property consisted of three parcels, all of which were advertised as adjoining, and each not only s|)ecially described by reference to Liber and page of the land records of Baltimore County, but the property was described as the former residence of Mr. Albert, a prominent citizen, and also as adjoining the famous “Hayfields estate” of Mr. John Merryman, and as being one and a half miles west of Cockevsville station on the Northern Central Railroad, in the limestone valley of the Beaver dams. The description seems to us more than usually full, and is certainly sufficiently so to give notice to any one wishing to buy such property, where it was, and enable him to find it for examination.
3. The objection on the score of weather is also without foundation, as a reason for disturbing the sale. All agree that there had been rain in the morning, and all agree it was fair at the time of sale. The sale took place about one o’clock, p. m., and Mr. O’Eerral, exceptants’ witness, says it cleared off before 10 o’clock. He had intended to go out and look at the property early that morning, but was prevented by the weather and did not go out till 12 o’clock. He had had full opportunity of going before, and if he did not, it was his own fault. The objection would be more plausible if he was shown to have been vfholly prevented from'bidding by this fact; but it appears that he was prevented by other considerations. Taking all the proof together we cannot see that the trustee is reprehensible for not postponing the sale till another day.
5. The last objection is, that the price obtained was wholly inadequate. It is very clear, that the property has not brought as much money as it did bring a few years before, and as other property of like character had brought in the neighborhood some years before. But it is also proved, that great depreciation in property values, and especially of real estate, had taken place after appellant’s purchase, so as to make it difficult to put a safe estimate on the real value of this property. A large real estate owner, in the immediate vicinity of this property, had advised Mr. Mackubin to require a reduction of the debt to make sure of his security being adequate; and the same person, although he was a man of abundant means, did not think there was prospect of enough speculation to join the purchaser in the purchase. The testimony as to the value of the property, in excess of what it has brought under the hammer, is purely speculative, and is not sustained by the comparative prices brought by other property lately before sold in that region. It may be the property is worth more money, even on a cash sale as this is, and that Mrs. Mahoney is a great sufferer by her purchase, subject to this mortgage, is abundantly clear; but we do not see, in this sale, which is ver y nearly for the appraised value of the property, for the purpose of taxation, good
Every trust deed is upon the condition implied, that the trustee will obtain the best price possible, and will make reasonable efforts to do so ; and that he will act with reasonable judgment and discretion. We have seen nothing-in the case to indicate any dereliction on the part of the trustee in this regard, and certainly the price obtained will not warrant us in attributing to him a failure to exercise reasonable discretion, and reasonable endeavors to do justice by all his cesluis que trust. It is worthy of notice, that the mortgagee nor the cestuis que trust of the fund in this case were the purchasers of the property, as was the case in the case of Hubbard and Wife vs. Jarrell, 23 Md., 66, and Horsey vs. Hough, 38 Md, 130, cited by appellants’ counsel. In those cases the Court said that fact subjects them to a stricter construction of the rules, and makes the inadequacy of price a weightier reason for interfering in behalf of the mortgagor. Here a wholly disinterested party is the purchaser, who has paid his money, and is also in Court defending his purchase. His bid was fairly made, in open market, where the trustee had brought the property, with the exercise of proper discretion, and after proper notice, under the hammer, and there seems to be no sufficient reason for depriving him of his purchase, or subjecting him to a new competition. The property may have enhanced in value since the sale, and if so, he is entitled to that benefit, unless he is responsible, in some way, for the failure of the former sale to bring a proper price, or there was some misconduct, in or about the same, of the
Order affirmed with costs,
and cause remanded.