33 Md. 120 | Md. | 1870
delivered the opinion of the Court.
This is an appeal from the action of the Court below, overruling exceptions to the report of sale made by the trustee under a deed of trust, and finally ratifying the sale.
All of these exceptions, but the third, sixth and eighth, refer to questions of fact, depending upon proof, and being totally unsustained, were properly overruled by the Court below.
. The third exception alleges the insufficiency of the public notice or advertisement of the sale of the property, a copy of which accompanies the report of the trustee.
Although there is no positive evidence that the sale of the property by the trustee was for an inadequate price, or that the trustee designed to omit any duty incumbent upon him, in the fair discharge of the trust, yet, as the deed which prescribed his duties required the property, in default of payment of the debt, to be sold “at public auction, after one month’s public notice, to be given in some newspaper circulating in the county, and in the neighborhood of the lands, and otherwise, as the trustee shall think right,” it was necessary that he should strictly pursue the directions prescribed. By such a compliance alone could the property be legally disposed of.
The fact that the first notice omitted the name of the mortgagor by his request, however it may have shown a disposition to gratify him, yet the interests of the parties concerned required proper public notice of the sale of the property. The advertisement of sale is addressed to the public, and should of itself contain sufficiently definite terms of description, without further reference, to apprise the public of the property to be sold, and any description by the notice which informs the public of the property to be sold, is sufficient.
The authority by which the property is sold — a description thereof, full enough to be understood by the public — its popular name, if any — its proximity to other known property— the name of the occupant at the time, or any other prominent
In this instance, the notice was too meagre to answer the requirements of the deed of trust. It does not state even from or to whom was the deed of trust, but merely refers to the book, among the land records of the county, where that may be found; nor does it give the location of the lands, more particularly, than that they are in Montgomery county; their neighborhood is not mentioned, nor to what lands adjacent, nor who reside on the property, and unless a person was familiar with the lands, or had special knowledge of them, he would be compelled to make examination among the land records of the county to find out what were the lands to be sold. See Kauffman vs. Walker, 9 Md., 229; Alexander vs. Walter, 8 Gill, 261. We concur with the Court below in its ruling on the sixth exception, as to the validity of the bond of the trustee. It conforms to the requirements of the Code, Article 81, section 116, which is sufficient under the deed of trust, and there was no occasion for any additional bond under the 6th section of Article 64 of the Code.
We find no error in the ruling on the eighth exception, that the terms of sale were not specified in the trustee’s report.
Although not specially mentioned by the trustee in his report, they are to be found in a copy of the advertisement accompanying the report, which forms a part thereof, and may be ascertained, and in the absence of proof of fraudulent omission, such irregularity affords no sufficient ground to vacate the sale. If the terms had been entirely omitted, by mistake or inadvertence,. they might have been supplied by an additional report.
Owing to the defect in the notice, the sale must be set aside, and the property be re-sold, and the case will be remanded, in order that the necessary steps may be taken by the Court below, for this purpose.
Order reversed and cause remanded.
