McCabe v. Ward , 18 Md. 505 ( 1862 )

Goldsboj&ough, J.,

delivered the opinion of this court.

The proceedings in this case were instituted in the Circuit court for Baltimore county, on the eighteenth day of November 1859, and are claimed by the appellee to be in conformity with the provisions of the Act of 1826, ch. 192. A mortgage of certain real estate mentioned in the proceedings was executed by the appellants to John F. Shipley, and by him assigned to the appellee. A power of attorney was given by the appellee to R. R. Boarman, Esq., intended to vest in him authority to sell the mortgaged property.

The appellee instituted the proceedings mentioned in the record, in the Circuit court for Baltimore county, and in view of the above Act, his attorney filed with the clerk of said court a copy of the power .of attorney, a.copy of the deed of mortgage, and also the deed of assignment.

The attorney, intending to enforce the lien of his principal, executed a bond to the State, designed to be in compliance with the second section of the Act of ,1826.

This bond, the condition of which was to abide by and fulfil any order or decree made by Baltimore county court, in relation to the sale of mortgaged property, or the proceeds thereof, and to be and remain as an indemnity to, and for the security of, all persons interested in such mortgaged property, was to be approved by a judge of Baltimore county court, or the clerk thereof, prior to the change of the judicial system of Maryland, bythe present Constitution. The bond in this case was filed with the clerk of the Circuit court for Baltimore county, and approved by him, not conditioned to abide by and fulfil any order .or .decree which should be made bythe Circuit court for Baltimore county, but to abide by and fulfil any order or decree which should be made by Baltimore county court. The attorney thereafter proceeded to make sale of the mortgaged property, and .reported the same to the Circuit court. The appellants filed objections to the ratification of the sale, which, upon hearing, were overruled, and the- sale finally ratified.

Though, by the fifth section of the Act of 1826, ch. 192, it .is declared, that “the court shall have the same power, in the premises, as they now have over sales made by trustees of their .own creation,” yet it is clear, that such chancery jurisdiction does not attach until the preliminary requisites of the Act, and filing a bond in compliance with its provisions, have been strictly gratified. The proceedings to initiate that jurisdiction are wholly ex-parte until the report, of sales are brought before the court for ratification, whoa an opportunity is afforded to “all persons interested in such mortgaged property, to file reasons, if any exist, why the saie should not be affirmed.” The attorney had no power to sell the property until he executed a bond, which would be a valid “indemnity to, and a security of, ail persons interested.” If he did not execute such a bond, then the jurisdiction of the court did not attach, and its action was coram non judice and void. No subsequent adjudication could give the proceedings validity. The ratification of the trustee’s report must be considered as having been made inadvertently. There was no case before the court, nothing on which its order of ratification could rest. No court can arrogate to itself or sanction the power in another, to dispose of real estate, without the forms of law. See 2 How., 43; 8 How., 495, 556.

(Decided July 9th, 1862.)

We must regard the bond executed and filed by the attorney in this case, as a nullity. The condition is an impossible one, there being, at the time the bond was filed, no such court in existence as Baltimore county court. See 11 Md. Rep., 322. Tilts case is unlike that of a trustee appointed by a decree of a court of chancery; m such a case, the decree prescribes the terms and conditions of the trustee’s bond, and when, in case of mistake or defect in the condition of the bond, it maybe reformed. Again, if it be that the attorney in this case secured his right to sell the mortgaged property, by virtue, not of liis appointment only, but also by a strict, compliance with the Act of Assembly, we cannot countenance the exercise of that right, without protecting those whose security rests in the lega! and binding efficacy of the attorney’s bond.

In this view of the case, we deem it unnecessary to express any opinion upon the other points raised by the appellants.

Order reversed and cause remanded.