Brooks v. Hays

Weisel, J., delivered the opinion of this Court. [518] The principal exception to the sales reported in this case, and ratified by the Court below, is that which denied the jurisdiction to it to pass the decree, on the ground that the period limited in the mortgage for its forfeiture had previously expired, and that under the provisions of the Code referred to in the mortgage, no decree could take place except at a time prior to such forfeiture. This Court has already disposed of this question in the appeals of Black vs. Carroll, and Frank vs. The Teutonia Building Association at the last term, (ante pp. 251 & 259) in which it held that decrees passed after default were within the meaning and purview of the provisions of the Code upon this subject, and can be sustained. We need only here refer to the opinions of the Court filed in those cases for its views on this question. We also think that the affidavits of the mortgagee filed in the case were in compliance with the Code requiring such a verification of the amount due upon the mortgage. It was made at the time the petition was prepared, and filed with it, and after the forfeiture of the mortgage, and consequently before the time of sale. The purpose of the provision was accomplished by it — a sworn statement of the amount due after the forfeiture and before the time of sale. 5 Md. Rep., 163. 10 Md. Rep., 407. The trustees did not file their bond until the day on which they advertised the sales to take place, the decree prescribing that they should first file a bond to be approved, and then proceed to make sale, having given at least three weeks notice, &c. And it is objected that this was a fatal irregularity, at variance with the terms of the decree. Neither the language of the Code (sec. 783,) nor that of the decree requires the filing of the bond before publishing of the advertisement of sale. Looking at both, the filing of the bond on the day of, hut before the salé, might be regarded as no deviation from either. But we [519] think the late Chancellor Johnson, of this State, has furnished the true grounds and reasons for meeting the objection íd a case of trusteeship like this. The trustee in this case was the agent and appointee of the Court, and a strict observance of its terms may be dispensed with in this as well as other particulars, in proceeding to ratify a sale made by him, care being taken that the requirements of the law are substantially complied with, and the interests of all parties fully protected. Speed vs. Smith, 4 Md. Ch. Dec., 309, 310. In this case a bond was filed and approved before the sales were made. (Decided April 26th, 1866.) We agree also with the Court below that the inadvertence of advertising one of the lots as subject to a ground rent of sixty-five dollars, instead of sixty-five dollars and fifty cents, the true rent, had no tendency to injure its sale. On the contrary, its tendency would be to improve it, and the purchaser, if any one, would be the party most apt to complain. He is not before the Court as an objector, and the matter furnishes no adequate ground for interfering with the sale. The 4th exception, relating to an error in the year in the advertisement published in one of the newspapers selected by the trustees, presents an irregularity which, like that of the bond, the Court could overlook on the ratification. The advertisement in one of the newspapers is without exception, and by the terms of the decree a publication of the notice in one daily newspaper would have been -sufficient. The mistake, however, in the one objected to was of such a nature as not to mislead any one of ordinary care in its perusal. We think there is nothing material in the other objections to the sale, and that the order of the Court below, from which the appeal was taken, should be affirmed, with costs to the appellee. Order affirmed, and came remanded.