Madigan v. Workingmen's Permanent Building & Loan Ass'n , 73 Md. 317 ( 1891 )

Alvey, C. J.,

delivered the opinion of the Court.

The question desired to be raised in this case for decision is presented in a very irregular manner, that is, by a demurrer to the answer instead of exceptions, or sitting the case down for hearing on bill and answer. According to the general chancery rule of pleading and practice, if an answer is insufficient in its responses to the allegations of the bill, objections must be taken to it by exceptions filed. And if it be bad in substance as a defence, and further proofs be not required by the plaintiff, the case should be set down for hearing upon the bill and answer, and the matter thus placed upon record will be adjudged accordingly. Sto. Eq. Pl., secs. 456, 864 and 865. Since the transcript has come into this Court an agreement has been filed to the effect that the demurrer shall be treated as an exception to the answer; and, giving a liberal construction to this agreement, we suppose it to be intended that the case shall be so presented as to enable this Court to decide the case as upon bill and answer; and we shall so consider it.

The question thus presented is, whether the curative Act of 1890, ch. 187, applies to and is effective to make valid the sale made under the power contained in the mortgage from the appellants to the "Workingmen’s Permanent Building and Loan Association of Talbot County, dated the 5th .of NoArember, 1870, and which power of sale was executed, and the report of sale made and finally ratified by the Circuit Court of the county, in 1873. The power of sale Avas, by its terms, conferred upon “the solicitor^of the said Workingmen’s Permanent Building and Loan Association,” but did not name therein the individual solicitor, as required by the terms of the statute (Code, Art. 66, sec. 6,), and which has been held by this Court to be essential to the validity of the power. Frostburg Mutual Building Association vs. Lowdermilk, 50 Md., 175. By the terms of the Act of 1890, ch. 187, the Act applies to all sales made under powers in mortgages between the first day of January, 1860, and the last day of December, 1878; and it declares that every such sale shall “be and the same is hereby made valid and effectual to all intents and purposes as fully as if the person so making said sale had been named in said mortgage as the person to make said sale or to execute said power of sale; and this section shall apply to all cases whether the person making said sale was named by a mortgagee being a natural person, or by a mortgagee being a body corporate.”

The mortgage in this case was in all respects perfectly valid and formally executed; and the estate in the mortgaged premises was thereby transmitted to and vested in the mortgagee; and the only defect consisted in the delegation of the power of sale, as a summary remedy for default, under the statute. We cannot entertain a doubt of the power of the Legislature, by retrospective curative legislation, to provide for such a case as this, and that the Act of 1890, ch. 187, fully embraces the case. A Court of chancery could have exercised jurisdiction in decreeing a sale for default, or in reforming the power so as to make it effective; and in such case it could not he claimed that any vested right had heen divested. The mortgagee had a clear right of foreclosure and sale, and the only question was the method of procedure. Having pursued a method, in regard to which the terms of the power was simply defective, the Legislature had an undoubted right to cure the defect by retroactive legislation, and to give such effect to the proceeding as appears to accord with the intention of the parties. This would seem to he within the clearest principle upon which' Legislatures most generally act in passing retroactive laws to cure defects and irregularities in proceedings, wherein a party has no vested right in a defence, based upon an informality not affecting his substantial equities. Cooley, Const. Lim., (6thEd.,) 454 to 470. This case is totally unlike that of Grove vs. Todd, 41 Md., 633. There the deed was simply void, as against the feme covert, whose dower was sought to he affected, and transferred no right or title whatever; and the curative Act was not passed until after the death of the husband; and this Court held, that the subsequent curative Act of the Legislature, though broad enough to embrace the case, could not so operate as to divest the widow of her dower and transfer it under a prior void deed, made without valuable consideration. This case presents no such question.

It is insisted, however, that the Act of 1890, ch. 181, cannot have application to this case, because the case was pending when the Act was passed. But it is clear that that fact does not withdraw the case from the operation of the Act. It is truly said that the bringing of suit vests in a party no right to a particular decision; and his case must he determined on the law as it stands, not when the suit was brought, hut when the judgment is rendered. Cooley, Const. Lim., 468. As an apt illustration of this principle, the case in our own Reports may be referred to, of Hollingsworth vs. McDonald, 2 H. & J., 230. In that case a defective acknowledgment of a deed by a married woman was held to he cured and made effective by a curative Act of the Legislature, passed after the case had been argued in the Court of Appeals, but before final decision and judgment rendered. Many cases could he cited to the same effect.

(Decided 16th January, 1891.)

Upon the case as presented we find nothing to support the claim of the appellants, and the decree of the Court below must he affirmed, with costs to the appellees.

Decree affirmed.