Schaefer v. Amicable Permanent Land & Loan Co. , 47 Md. 126 ( 1877 )

Bartol, C J.,

delivered the opinion of the Court.

There are two appeals in this record, one from the decree passed on the 27th day of November 1876, and the other from the order of the Circuit Court of December 30th 1876 dismissing the petition filed by appellant on that day.

1st. As to the appeal from the decree.

The mortgage was executed under the local law of Baltimore City, Code, vol. 2, Art. 4, sec. 782, it contained the consent of the mortgagor that a decree might be passed forthwith. The decree was passed in conformity with the provisions of that section, and with the terms and conditions of the mortgage. It is free from error and must therefore be affirmed.

Under the Code the decree might properly be passed before default.

2nd. As to the appeal from the order dismissing the petition.

The object of the petition was to arrest the sale of the •mortgaged property under the decree. By the terms of the mortgage and the decree, the property could not he sold until default in performing the conditions of the mortgage, or some one of them had continued for sixty days.

The petition alleges that the petitioner had paid into the treasury of the company a large sum of money in the shape of dues and interest in partial discharge of the mortgage, and exhibits a book containing entries made by the proper officers of the company, showing the several sums paid by her, and alleges further that there has not been made a legal application of her payments to the company, and if the payments had heen correctly credited as of the dates appearing in the book, she is not guilty of any defalcation, &c.

If the facts so alleged were true, they showed sufficient cause for arresting the sale. The continuance of default for sixty days is a condition precedent to a sale of the property under the mortgage and decree, unless such default is shown to exist, the Court would interpose to arrest the sale. See The Equitable M. L. I. Association vs. George Becker, 45 Md., 632. There could be no good reason for allowing the property to he sold, and leaving this question to be litigated by the purchaser under exceptions to the ratification of the sale. But in this case the Exhibit filed with the petition showing the sums paid by the petitioner, demonstrates that there was default in making the payments due under the mortgage, which had continued for more than sixty days, when the petition was filed. It is not alleged that any other moneys had been paid beside those mentioned in the book exhibited with the petition, and for these reasons it was not error to dismiss the petition.

The account filed by the mortgagee, purporting to show the sum due, is not conclusive upon the mortgagor, and in case the property should be sold, it will be open to her to contest it, and to have the amount actually due according to law ascertained and determined.

(Decided June 19th, 1877.)

But upon the petition and the exhibit accompanying it there does not appear any sufficient ground for arresting the sale. .It is not alleged that the mortgage is not such a one as the appellee was authorized by its charter to take. No objection is made to its terms and conditions on the ground of usury, or for any other cause. The petition does not impeach or deny the validity of the mortgage; ' but avers only that there had been no default under its terms and conditions, while upon the face of the papers the fact is shown to be otherwise. In the present state of the record, there appears no ground for reversal.

The decree and order of the Circuit Court will therefore bo affirmed and the cause remanded.

Affirmed and remanded.