52 Md. 388 | Md. | 1879
delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court of Baltimore City, overruling exceptions, and ratifying a sale made hy the appellee under a power in a mortgage.
It appears from the record that the property was purchased hy the appellant from the appellee, in February 1811, and to secure the sum of $26,500, balance of the purchase money, was mortgaged to the appellee. o
It consists of about twenty-two acres, lying partly in Baltimore County, and partly within the City of Baltimore, the larger portion being in the county. Though described in the deed as three parcels of land, these lay contiguous to each other, and at the time of the purchase, constituted one parcel then occupied as a dairy farm, known as “ Font Hill.” The buildings upon it were, worth about $800, according to the testimony of the appellant.
About the year 1812 or 1813 the property was surveyed and laid off into lots and streets, both the part lying in the county and that within the city limits; hut no improvements were made thereon, no streets were actually opened, nor was there any physical change in the condition of the property, or in its mode of occupation, the lots and streets being merely designated on a map, and marked on the ground hy stones placed there for that purpose.
The “Western Maryland Railroad” was constructed upon the property, crossing it diagonally; in one part through a “ cut ” or excavation of the depth of about twenty feet, and in another part upon a “fill” or embankment eight to twelve feet high, thus completely separating the land into two parts, about four acres being on the north side of the railroad, and the balance on the south side.
The property was advertised and sold in one parcel, as described in the mortgage, and was purchased by the mortgagee.
1st. Because the advertisement of the time, manner and terms of sale, was not made for the period required bylaw, and by the mortgage.
2nd. Because said sale was not advertised as required by law, and said mortgage.
3rd. Because the advertisement was not inserted on the day of sale; and purchasers were misled thereby, and failed therefore to attend the sale.
4th. Because the property consisted of three parcels, when conveyed by the mortgage, and afterwards these were divided into parts by the construction of the Western Maryland Railroad through the parcels, and yet the mortgagee advertised and sold all the lands, as a whole, and in no parcels.
5th. Because the streets had been located through the lands by competent authority of law, and all sales of property in the neighborhood have been made by fronts on streets and in lots, nevertheless the mortgagee offered the property as a whole only, and not with reference to streets or in lots.
6th. Because the property ought not to have been sold in one parcel.
7th. Because the price at which the property was purchased by the mortgagee was grossly inadequate.
8th. For other reasons to be presented at the hearing.
The first and second exceptions are not supported by the proof. The mortgage requires “at least twenty days’ notice of the time, place, manner and terms of sale, in some newspaper published in the City of Baltimore.”
The advertisement was inserted in the “ Baltimore Sun,” and also in the “ Maryland Journal,” a newspaper printed in Baltimore County, for more than twenty days before the sale, and contains a full and sufficient description of the property to be sold.
The third exception raises a more serious question, and when considered in connection with the proof in the cause
The advertisement was printed in the “ Sun ” March 11th, 13th, 23rd, 30th, April 2nd, 6th, 9th and 13th.
The day of sale was the 18th of April; hut through a mistake which occurred in the printing office, the advertisement did not appear on the morning of the day of sale, as is customary in the City of Baltimore.
The effect of this omission, as is very clearly shown by the evidence, was to produce the impression upon the public that the sale would not take place, and this impression was occasioned not only by the absence of the advertisement on the day of sale; but by the further fact that accompanying each advertisement were printed numbers and letters, the meaning of which was generally understood, indicating the dates upon which the same would be published; and among these were A. 11 ill and 18 th, the day of sale, and the day before; on both of which days it was omitted.
It is true, as suggested by the appellee’s solicitor, that the notice of sale was published for the period of time required by the mortgage, and that this did not, in terms, require the notice to be published on the day of sale ; but such a publication being customary, and it having been announced in each advertisement, that it would be published on the day of sale, the natural effect of its omission on that day, was to mislead the public, and produce the impression that the sale would not take place; and the evidence shows that a number of persons were actually so misled.
Mr. Bennett, the auctioneer, it appears, not seeing the advertisement on the 18th, .supposed the sale would not-take place. Mr. Patterson testifies that such an impression was general in the community, and names Mr. John A. Hambleton and Mr. George Gildersleve, as two persons who were so misled aiid .who intended to go to the sale. Both
The object of the advertisement is to notify the public when and where the sale will take place, so that persons wishing to huy may attend; but where it clearly appears that this object has been defeated, and purchasers have been kept away by an accidental omission of the advertisement at the very time when the public, and all parties interested look for it, and expect to see it; it seems to us that the sale ought not to be ratified.
As in our opinion the sale ought to he set aside for the reason stated, and a re-sale made, it is proper that we should pass upon the other exceptions.
Looking at the whole evidence in the cause, we think the mortgagee was not hound to offer the property for sale in small lots fronting on the projected streets as indicated on the plat, exhibited by the appellant. The effect of offering the property in that way, would be to dedicate about one-third of it to the public for streets, lanes and alleys. Moale vs. Mayor, &c., 5 Md., 322, which, in the present situation of the property, seems to us would not be a judicious course of proceeding, as the streets may never actually be opened as they are designated on the plat.
It is very doubtful, according to the evidence, whether a sale in that mode could be effected consistently with the rights and interests of the mortgagee or advantageously to the appellant.
At the same time, we think the whole of the land described in the mortgage ought not to be offered for sale, in the first instance, in one parcel. The construction of the Western Maryland Railroad, in the manner before described, has changed the topography of the land, divid
The evidence in our judgment shows that, if so offered, the property would attract a larger number of bidders and sell for a better price.
If one of the parcels should sell for enough to pay the mortgage debt and interest, with the taxes and costs, the other parcel should of course not be offered, as the mortgagee ought not to sell more of the land than is sufficient for that purpose.
The order of the Circuit Court will be reversed, and the cause remanded, the costs of this proceeding to be paid out of the proceeds of sale.
Reversed and remanded.