Morrill v. Gelston's Lessee

34 Md. 413, 1871 Md. LEXIS 68

• Court: Court of Appeals of Maryland
• Decided: June 2, 1871
• Status: Published

Opinion

Stewart, J.,

delivered the opinion of the Court.

Three exceptions were taken by the appellants to the evidence introduced on the part of the lessor of the plaintiff below, and have been brought up for review in this appeal. The first exception is to the admission of the proceedings in the Superior Court of Baltimore city, in the matter of Hugh Gelston vs. William M. Willis, because, as alleged, they were had under a special jurisdiction not shewn upon their face.

The application to the Superior Court, on the part of Gelston, was to foreclose the mortgage he held against Wi,lilis, referred to in the proceedings. The mortgage contained clauses declaring it to have been made with reference to certain provisions of the laws in regard to mortgages of real estate, or chattels real, in the city of Baltimore, and declaring the assent of the mortgagor to the passing of a decree, under the said laws or supplements thereto; and to a sale under any of said laws or supplements, in case of any default in any of the conditions of the mortgage — the proceeds of any sale to be applied to the extinguishment of the claims of the mortgagee, whether matured or not.

Under section 782 of Article 4 of the Code of Public Local Laws, the mortgagee, in such case, was authorized to submit to the Superior Court of Baltimore city such mortgage or copy, under seal of the Court, at any time after filing the mortgage for record; and the said Court was empowered forthwith to decree a sale of the mortgaged premises at any one of the periods limited for the forfeiture of the mortgage, or for a default of the mortgagor, on such terms as might seem proper to the Court, and to appoint a trustee to make the sale.

The 784th. section of the same Article provides that sales made and conveyances thereupon shall have the same effect, if finally ratified by said Court, as if the same had been made under decrees between the proper parties in relation to the mortgages, and in the usual course of said Court.

It appears from the character of the mortgage, and the proceedings to foreclose the same under these provisions, the Superior Court had jurisdiction in the matter, and was authorized to pass the decree for the sale of the mortgaged property. See Black vs. Carroll, 24 Md., 251. When the sale has been ratified by the Court, the same legal intendment and construction are to be applied thereto as if the same had been made by virtue of an ordinary decree, and it can no more be called in question, in any collateral proceeding, than a sale under any other decree of the Court. Cockey vs. Cole, 28 Md., 285.

The second exception is taken to the deed of the trustee offered by the lessor of the plaintiff) because executed before the expiration of the six months’ credit prescribed by the decree. The terms of sale prescribed by the decree were, one-half of the purchase money to be paid in cash on the day of sale — the balance on a credit of six months. Upon the payment of the purchase money, (and not before,) after ratification of the sale, the trustee was authorized to convey the property sold, to the purchaser.

The credit instalments afford opportunity to make a better sale of the property, for the benefit of all parties concerned. They allow the purchaser the privilege, of the credit, if he desires it, but if the property is sold upon the prescribed credit, and the purchaser prefers to waive it and pay all the money, and the sale is ratified, (the purchase money all being paid,) he is entitled to have a conveyance of the property, and the deed of the trustee cannot be impeached upon the ground that the money was thus paid.

The third exception is to the admission of the deeds in evidence, on the ground that the production of the record was not sufficient proof thereof.

(Decided 2d June, 1871.)

By the 58th section of Articie 37 of the Code, copies of any record in the custody of any of the clerks of the Courts of Law or Equity, or register of wills, are made evidence; judgments, decrees, deeds, and other papers and proceedings required by law to be recorded, are considered records. Where the trial of a cause is in the same Court where the record is to be found, it has been the universal practice, which it would be unwise to disturb, to produce the record books as evidence.

The release of the mortgage from the Donnells, the mortgagees, was contained in the record book. The release of a mortgage may be made in the form prescribed by the Code, Article 24, sections 33, 34, 35, attested by the clerk, and in the absence of any proof to the contrary, we must assume the release in question was in that form, and the record is evidence of such release, as of the mortgage.

The lessor of the plaintiff has made out at least a prima facie case, and there being no proof to the contrary, the Court below could not do otherwise than to overrule the exceptions to the evidence offered, and grant the plaintiff’s and refuse the defendant’s prayer.

Judgment affirmed.