Strohmeyer v. Norton

STOOKBRIDGE, J.— On the 29th day of July, 1898, Andrew J. Wiegand entered into a contract with J. Henry Strohmeyer, as the agent of Harriet T. Norton, for the purchase in fee-simple of the premises, No. 669 W. Lexington street, for the sum of $1,600. On examination of the title of Mrs. Norton it was found that she did not own the property so agreed to be sold, that her title and relation to the property was that of a mortgagee in possessioni Subsequently Mrs. Norton assigned the mortgage to Mr. Strohmeyer, and he instituted foreclosure proceedings upon the mortgage against Theodoric C. Norton, the mortgagor. The property was sold at public sale under the decree of foreclosure to Alexander and Mary Albrecht for the sum of $1,825. Mr. Wiegand thereupon filed exceptions to the ratification of the -sale which were overruled; and now files exceptions to the ratification of the auditor’s account by which the proceeds of the sale over and above the costs of the foreclosure are audited to Mr. Strohmeyer as the assignee of the mortgage. Mr. Wiegand’s claim is that by virtue of the contract entered into between him and Mr. Strohmeyer as the agent of Mrs. Norton he became entitled to the property, and therefore to the sum of $225, being the excess in the amount of sale at public sale over the price at which the same was sold to him. With respect to this exception, it will be observed that Mr. Wiegand is not a party to the case, and that he has acquired no lien upon the property. He had, at most, a contract of sale, which has not been performed by Mrs. Norton, and for the breach of which contract he is entitled to bring an action at law. Such a relation does not, however, give him any standing in the present case, to except to the distribution made. Sumwalt vs. Tucker, 34 Md. 89. Brown vs. Thomas, 46 Md. 636. Only those are entitled to except to an account who are parties to the cause, or who have established a claim to the fund, and the present exceptant not being in either of these positions, the exceptions will be overruled, and the auditor’s account ratified.