Tome v. Merchants & Mechanics' Permanent Building & Loan Co.

34 Md. 12, 1871 Md. LEXIS 26

• Court: Court of Appeals of Maryland
• Decided: February 9, 1871
• Status: Published

Opinion

Bartol, C. J.,

delivered the opinion of the Court.

We concur in the opinion expressed by the Judge of the Circuit Court that the case presented by the bill and exhibits is not such as entitles the complainant to the writ of injunction as prayed, he is prior mortgagee, not a party to the proceedings instituted by The Merchants and Mechanics’ Building and Loan Company, under their mortgages, and his rights are in no way affected thereby, or by any sale that may be made thereunder. These proceedings are under the provisions of the Code, vol. 2, sec. 782, et seq.: which entitle the mortgagees, the Building and Loan Company, to sell under their decree without making the prior mortgagee a party to the proceeding — and he has no right to interfere with the execution of their decree, the sale is made subject to his rights under his prior mortgage. No cloud is thereby cast upon his title; and if there be a question as to the effect and operation of his mortgage, and the extent of his rights under it, he is not entitled to interfere with the proceedings instituted by the subsequent mortgagees for the purpose of arresting-them until his rights may be ascertained and adjudicated.

In support of the bill we have been referred to McCann vs. Taylor, 10 Md., 418; Holland vs. Mayor, &c., 11 Md., 186; Polk vs. Rose, et al., 25 Md., 153; and Polk vs. Reynolds, 31 Md., 106, in which it was held the parties complainant were entitled to relief by injunction. But we think the present case does not fall within the principles decided in any of those cited, nor is there any head of equity under which the complainant is entitled to the relief prayed.

(Decided 9th February, 1871.)

The order refusing the injunction will be affirmed.

Order Affirmed.

Miller, J., dissented.