Berry ex rel. Roberts v. Skinner

Alvey, J., delivered the opinion of the Court. In this case, it being conceded that the mortgagor was sane and competent to contract at the time of the execution of the mortgage, and that default in payment had occurred before proceedings were taken to make sale under the power, and all the preliminary requisites to making the'sale having beeñ complied with, the sole question for our consideration is, whether the subsequent lunacy of the mortgagor, and the proceedings had in1 reference thereto in equity, could have the effect of suspending the execution of the power of sale, by the mortgagee ? The mortgage, made pursuant to the 64th Article of the Code of Public General Laws, contains a power of sale expressed thus: u But in ease of any default being made in any condition of this mortgage, then these presents are hereby declared to be made in trust, and the said Augustus P. Skinner, his heirs, executors, administrators and assigns, or his or their duly constituted attorney or agent, are hereby authorized and empowered to sell all the property hereby mortgaged, or so much thereof as may be necessary, and to grant and convey the same to the purchaser or purchasers thereof, or to his, her or their heirs or assigns, which sale.shall be made in the following manner: by .giving at least twenty days’ notice of the time, place, manner and terms of sale, in some newspaper published in Baltimore city; and the proceeds arising from such sale to apply first, to the payment of all expenses incident to such sale-; secondly, to the payment of all moneys [573] owing hereunder, whether the same shall have matured or not; and as to the balance, to pay it over to the said Benjamin Berry, or his heirs or assigns.” It is plain this is not a naked power collateral to the grant, but is a power coupled with an interest in the premises conveyed by the mortgage deed. Being intended for the benefit of the mortgagee, as affording him a more speedy and summary mode of collecting his debt than by ordinary proceeding to foreclose, it is appendant to the estate and is part of the security itself. It would pass with the estate by assignment of the mortgage debt, and wTould not be affected by the death of the mortgagor, but could be executed after his death. Bergen vs. Bennett, 1 Caines’ Cas., 1; Wilson vs. Troup, 2 Cow., 236; Beatie vs. Butler, 21 Mo., 313; Varnum vs. Meserve, 8 Allen, 158; Bell vs. Twilight, 2 Foster, 500; Bradly vs. Chester Valley R. R. Co., 36 Penn., 151; Hunt vs. Rousmanier, 8 Wheat., 174; Wright vs. Rose, 2 Sim. & Stu., 323. On the subject of these powers of sale in mortgage deeds, Chancellor Kunt, in vol. 4, p. 147, of his Commentaries, says; “ These powers fall under the class of powers appendant or annexed to the estate, and they are powers coupled with an interest, and are irrevocable, and are deemed part of the mortgage security, and vest in any person, who, by assignment or otherwise, becomes entitled to the money secured to be paid.” The insertion of such power of sale in the mortgage, does not, however, in any manner change or affect the right of the mortgagor, or of any person legally representing him, to redeem at any time before the power is executed ; but the execution of such power, by sale of the mortgaged premises, virtually forecloses the mortgage, and divests all right of redemption. That is the purpose and design of the power. Such being the nature and character of the power in the mortgage before us, no other conclusion, upon principle, can be drawn than that the lunacy of the mortgagor could not in any manner affect or interfere with the mortgagee’s right to execute the power, and foreclose the right of redemption, in [574] the mode and manner stipulated by the parties. If death would not revoke, or suspend the execution of such power, there is no reason why the lunacy of the mortgagor should have that affect. The mortgagee cannot be supended in his rights, because of the misfortunes of the mortgagor, nor of his lunacy any more than any other misfortune, unless provided for in the contract. That a mere authority, not coupled with an interest, nor intended as a security, ceases, or is suspended by the insanity of the principal, is clear beyond dispute ; but the principle that insanity operates as a revocation, cannot apply where the power is coupled with an interest, so that it can be executed in the name of the donee or trustee. Davis vs. Lane, 10 N. Hamp., 156. (Decided 2d June, 1869.) Nor can the proceedings in lunacy, and the application therein of the committee for an order to sell the mortgaged premises for the benefit of creditors generally, have, the effect to suspend the execution of the power by the mortgagee. He, the mortgagee, was constituted a trustee by the mortgage itself to sell the mortgaged property, on default of payment, and the Court has no power to deprive him of the summary means of realizing his debt that formed a part of the security upon which he advanced his money. The power, then, not being affected by the lunacy of the mortgagor, and all the pre-requisites to its execution having» been complied with, it becomes the l’ight of the purchaser, as well as the right of the- mortgagee, that the sale should be sustained. And, in the absence of irregularity, fraud, or unfairness in executing the power, the Court has no alternative, however harsh and severe the proceeding may appear to be, but to ratify the sale. Inadequacy of price and the want of the prescribed notice, were also grounds assigned for setting aside the sale, but as they have not been supported by proof, they have not been urged on this appeal. The order appealed from must be affirmed. Order affirmed.