Carr v. McColgan

Schmucker, J., delivered the opinion of the Court. ■ This is an appeal from an order of the Circuit Court for Carroll County in equity overruling exceptions to a sale of a mortgaged farm under the power of sale contained in the mortgage, and ratifying the sale. ■ The exceptions were filed by the-mortgagors upon the ground that there never had been a valid execution of the mortgage. The mortgagors, the mortgagee, the notary before whom the mortgage was acknowledged, the attorney who prepared the mortgage and other persons were examined as witnesses under the exceptions. With the exception hereinafter mentioned, there was no real conflict between the testimony of the several witnesses. Without noticing the evidence in detail it is sufficient to say that we find therefrom the following state of facts material to the present controversy. *473 The appellant, George R. Carr, applied to the appellee through a real estate broker for a loan of $8,000 to be secured by a mortgage on a farm in Carroll County owned by him. After some negotiations it was agreed between the parties that the appellee should lend $7,000 on the farm if the title proved to be good and that Walter W. Parker of the Baltimore Bar should investigate the title and draw thé mortgage. Theer was at that time a ground rent of $300 per annum on part of the farm and the taxes were in arrear and there were some judgments of record against Carr. It was agreed that all of these incumbrances were to be paid off out of the $7,000 to be lent by the appellee so that its repayment might be secured by a mortgage on the unincumbered estate in fee in the farm. The investigation of the title proved to be troublesome and occupied so long a time that Carr’s judgment creditors became pressing in their demands for payment, and finally, through their counsel, notified Mr. Parker on February 7th, 1902, that they would issue execution on the judgments unless they were paid on the following day. Mr. Parker having completed the investigation of the title proceeded at once to prepare the necessary conveyances to consummate the mortgage loan, and sent word to Carr to come to his office to execute them. Mr. Carr responded promptly and, taking his wife with him, went on the afternoon of the same day to Mr. Parker’s office to execute the papers. As it was necessary to send the deed for the extinguishment of the ground rent on the farm to the owner of the rent for execution, the preparation of that conveyance received attention first. The description of the farm was somewhat intricate and its preparation consumed so much time that the mortgage had been only partly finished by seven o’clock in the evening. In order to permit the mortgagors to return home the mortgage notes were signed by them and left with Mr. Parker and they also executed the mortgage in its incomplete condition with the understanding that Mr. Parker was to take it to his house and complete it that evening. The testimony is conflicting as to the reason for executing *474 the mortgage in an incomplete condition and also as to the extent to which it had been completed at the time of its execution. Mr. Parker testifies with clearness and positively that, Mrs. Carr having several times during the preparation of the mortgage expressed a desire to get away, he informed her and her husband that they might remain in his office until the mortgage was ready or if they desired it he would send for a notary, and in the meantime prepare the mortgage notes and finish the mortgage as nearly as possible and when the notary arrived they could sign and acknowledge the mortgage and sign the notes and go home and he would then take the mortgage to his house and finish it. Carr and wife readily consented to the suggested arrangement giving as their reason that they were anxious to get home. The notary was then sent for and the mortgage executed and acknowledged by Carr and his wife and left with Parker to be completed. The mortgage notes were also signed by Carr and wife and left with Parker. Mr. Parker further testified positively that at the time of the execution of the mortgage, it had been entirely completed except that the latter portion (about one-half) of the description-of the land had not been inserted and the paper had not been endorsed. The portion of the description of the land which Mr. Parker said had been inserted in the mortgage before its execution described in general terms the location of the land and the names of the several tracts of which it was composed and a number but not all of the courses and distances of its boundary lines. The reason assigned by Mr. Parker for the unusual length of time required to complete the mortgage was that an entirely new description of the land had to be made from a variety of deeds, plats and surveys, as the mortgagor had purchased it in different parcels and had at various times exchanged portions of it for contiguous lands in order to straighten his boundaries. Mr. Carr and his wife testified that they had signed the mortgage notes and had also signed and acknowledged the mortgage at the time and place mentioned by Mr. Parker and left *475 them with him. Mr. Carr said that the mortgage was a “form in blank” and his wife said that shé put her name to the papers at her husband’s request but knew nothing further about them; but as both of these witnesses stated that they did not read or examine tbe mortgage when they signed it, although it appears that they were not prevented from so doing, their testimony as to the state of its completion when executed is of little value. Carr, although he testified somewhat evasively, did not attempt to deny that the loan was made to him on the terms set forth in the mortgage or that the land therein described was that which he had agreed to give as security for the repayment of the loan. On the following morning, January 8th, 1902, Mr. Parker took the completed mortgage to the mortgagee, McColgan, and told him of the circumstances of its execution. McColgan accepted the mortgage and furnished the $7,000 agreed upon and the mortgage was recorded. The money was applied so far as necessary, through Mr. Parker, to the redemption of the ground rent and the satisfaction of the liens on the mortgaged land, and the balance accounted for to the mortgagor, Carr, who ádmitted when upon the stand that he had received the benefit of the entire $7,000. The, testimony of Mr. Parker as to the the details of the mortgage transaction was corroborated by the other witnesses, except in so far as it was contradicted by that of the mortgagors, and we are satisfied that it presents k correct' account of the occurrences to which it relates. A few days after the recording of the mortgage a confirmatory mortgage was executed in due form between the same parties in order to more clearly describe a right of way and correctly state the acreage of the farm. This new instrument recites distinctly the making of the $7,000 loan and the execution of the- original mortgage on the farm to secure its repayment and formally and in express terms confirms the conveyance of the farm thereby made to the mortgagee. Through some inadvertence the confirmatory mortgage was mislaid and was never recorded, but it was found and put in *476 evidence in this case during the taking of the testimony on the exceptions. When the first interest note secured by the mortgage came due it was paid. When the second one matured Mr. Carr asked the appellee for additional time for its payment which was granted to him. He was also, when in defauult, accorded an opportunity to offer the farm for sale himself at auction so as to avoid the costs of a sale under the mortgage. He offered it at auction but failed to make a sale. After repeated but unavailing requests- for payment from Mr. Carr the farm was put up for sale at auction under the power of sale contained in the mortgage and sold to the mortgagee for $7,000. At that sale Mr. Carr was present and suggested that the farm be offered both in parcels and as a whole which was accordingly done. He also explained to those present at the sale the location and advantages of the farm and the several parcels of land of which it was composed. During all this time he never questioned the validity of the mortgage or made any objection .to the method of its execution. Those questions were for the first time raised in the exceptions which-he filed in the Circuit .Court to the ratification of the sale. It thus appears that the appellant, having gotten from the appellee the .mortgage loan agreed upon, and enjoyed its benefit, and having, without objection paid one installment of interest thereon, and having applied for and received an extension of time for other installments, and having attended at the sale of the mortgaged property and made suggestion's as to the method of conducting it, now excepts to the sale upon the technical ground that he and his wife signed and acknowledged the mortgage before it had been entirely completed, even though they confirmed it a few days afterwards by a conveyance signed, sealed and acknowledged in due form of law. Some cogent reason must be presented to induce a Court of equity to sustain such an exception. The doctrine relied on in support of the exception is that blanks in a deed or mortgage cannot be validly filled by one whose authority to do so rests in parol. Ever since the case *477 of Hibblewhite v. McMorine, 6 M. & W. 200, which overruled Texira v. Evans, it has been held in England that authority under seal is required to fill such blanks and this rule has been followed in some of the American Courts, but there are many modern decisions to the contrary in thiscountry especially where the parol authority to fill up the blanks was given before the delivery oí the deed and they were so filled. In Washburn on Real Property, 6 ed., vol. 3, sec. 2093, it is said “the better opinion seems to be that such parol authority is sufficient to authorize the filling in of blanks before an actual delivery, the possession of the agent being that of the grantor, but it is otherwise after delivery.” In Cyc., vol. 2, p. 167 — 8, it is said, upon the authority of many cases there cited. ‘ ‘The rule that the signing, sealing and delivery of a blank which is to be filled as a deed can give no authority to make the paper a deed was never intended to prescribe to the grantor the order of time in which the several parts of a deed should be written. The whole act of execution is finally consummated by delivery, and if the grantor should think proper to reverse the usual order in the manner of executing the instrument, but in the end perfect it by delivery it is a good deed. “The last general statement refers particularly to delivery by the maker. It is not necessary in all cases however that the grantor should in person make delivery of the deed, and upon this principle a deed executed with blanks and afterwards filled and delivered by the agent of the grantor or obligor is good according to the weight of the modern authorities.” It is there further stated that under what would seem to be the modern rule, parol authority to fill a deed is regarded as sufficient. In Allen v. Withrow, 110 U. S. 129, the Court say. “As said by this Court in Drury v. Foster, 69 U. S. 781, ‘Although it was at one time doubtful whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument the better opinion at this day is that the power is sufficient.’ But there are two conditions essential to make a deed thus executed in blank operate as a conveyance ,of the prop *478 erty described in it; the blank must be filled by the party-authorized to fill it, and this must be done before or at the time of delivery of the deed to the grantee named.” In Berwick v. Huntress, 53 Me. 90, it is said: “It seems to be now settled that where a party executes a deed or bond of other instrument and delivers the same to another person in an imperfect state and gives authority to that person to fill up the blanks and he does so its validity cannot be controverted. This authority may be by parol.” If therefore we were compelled to decide this case solely upon the validity of the mortgage from Carr and wife to the appellee as depending upon the circumstances of its execution and delivery we would have excellent authority for holding that the order of executing and completing it were adopted for the convenience of the mortgagor and that as it was entirely conpleted by Mr. Parker úhder the authority of the mortgagors before its delivery to the mortgagee it was a valid and effectual mortgage. We are however confined to no such narrow grounds for upholding the mortgage as against the mortgagors, for the record contains ample evidence of conduct on their part amounting both to a ratification of the mortgage and an estoppel to deny its validity. The formal execution and delivery by them, with knowledge of the circumstances of the completion of the original mortgage and within a few days thereafter, of the confirmatory mortgage which on its face recites the making of the $7,000 loan on the farm and the giving of the original mortgage as security therefor amount to a ratification of Mr. Parker’s acts in completing and delivering that” instrument and also to a confirmation as between the parties to this appeal of the instrument itself. The line of conduct subsequently pursued by the mortgagor in accepting the benefit of the mortgage loan and paying an installment of interest on it, and asking and receiving indulgence on another installment, and attending the mortgage sale and suggesting the method which was adopted of offering the several parcels of which the farm was composed and describing to bidders the *479 several parcels of the land with their improvements and advantages all without ever suggesting any defect in the mortgage or the method of its execution, should in equity and good conscience estop him from coming in at this day after the sale has been made and reported and objecting to its ratification and thus impeaching the title of those claiming under the mortgage. Funk v. Newcomer, 10 Md. 317; Browne v. Methodist Church, 37 Md. 124. (Decided March 21st, 1905.) The order appealed from will be affirmed. Order affirmed with costs.