Maslin v. Marshall

The appeal in this case is from an order of the Circuit Court No. 2, of Baltimore City overruling certain exceptions to the ratification of a sale of mortgaged property. The sale was made by the appellee, as assignee of the mortgage, in the exercise of a power of sale therein contained.

The mortgage was made on October 28th, 1897, from George A. Dubreuil and others to Mary E. Garrett, William F. Frick and Charles F. Mayer, trustees under the will of the late John W. Garrett to secure certain promissory notes of the mortgagors.

The mortgage and the notes secured by it were assigned by the trustees to the Safe Deposit and Trust Company of Baltimore, a body corporate, and were by it assigned to the appellee.

The mortgage contained a power of sale in the usual form to "the said William F. Frick, Charles F. Mayer and Mary E. Garrett trustees as aforesaid or the survivors or survivor of them or their successors or successor in said trust," authorizing them to sell the mortgaged property in case of default in payment of the mortgage debt. A default having occurred the appellee made sale of the mortgaged premises, professing to act in so doing under the power of sale contained in the mortgage, and reported the sale to Circuit Court No. 2 for ratification, when the appellant, who was the purchaser at the sale, excepted to its ratification. The Court by its order of October 3rd, 1901, overruled the exceptions and finally ratified the sale whereupon the present appeal was taken from that order.

Two grounds of exception were urged in argument by the appellant. One was that the power of sale contained in the mortgage was personal to the mortgagees, who were the trustees already named, and their successors in trust under Mr. Garrett's will, and that it did not pass to, and could not be exercised by, an assignee of the mortgage. The other ground was that even if the power were a transmissible one the assignment of the mortgage to the Safe Deposit and Trust Company which was a corporation destroyed the power because it could not be exercised by a corporation. Neither of these grounds of exception would have constituted a sufficient reason for refusing to ratify the sale and the learned Judge below properly overruled the exceptions and passed the order of final ratification.

The appellant relied especially upon the absence of the word "assigns" after the names of the mortgagees in the power of sale as evidence that the power was not intended to pass with an assignment of the mortgage, but we do not agree with him. The authority to include a power of sale in a mortgage is derived from sec. 6 of Art. 66 of the Code which provides for the insertion in all mortgages of a clause giving such power to "the mortgagee or any other person to be named therein." No mention of, or allusion to, assigns or assignees is made in that connection, and yet further on in the same sentence it is provided that "where the interests in any mortgage are heldunder any one or more assignments" the power of sale shall be held divisible and the person "holding any such interest" who first institutes proceedings to execute the power shall have the exclusive right to sell the mortgaged premises, thus showing conclusively that the Code not only contemplates the exercise of the power of sale by the assignees of a mortgage but in certain cases regulates the method of its exercise by them.

Furthermore this Court has repeatedly held that a power of sale conferred by a mortgage upon the mortgagee, being intended to afford him a means of promptly collecting his debt, is a power coupled with an interest and is therefore appurtenant to the estate and passes with it as part of the mortgage security to an assignee of the mortgage or even of the mortgage debt. Berry v.Skinner, 30 Md. 567; Dill v. Satterfield, 34 Md. 53;Mackubin v. Boarman, 54 Md. 387; Barrick v. Horner,78 Md. 255.

When a power is appurtenant to an estate it passes to the assignee of the estate not because he was designated in the grant of the power, nor because of special confidence reposed in him by such grantor as a suitable person to execute the power. It passes to him as an incident of the estate conveyed to him just as a right of way or other easement or appurtenance used or enjoyed therewith would pass to him. No delectus personae by the grantor is involved in the transmission of such a power, as is the case with a power in gross or a collateral one which can be exercised only by the persons designated in the instrument creating the power.

The absence of the word assigns from the clause of the mortgage granting the power of sale in the present case is unimportant for another reason. No words of inheritance are now necessary to pass an estate in fee to the grantee in a deed, nor is the word assigns or any similar expression requisite to pass to a mortgagee an assignable interest in the mortgaged property, and by parity of reasoning the presence of any such words in a mortgage power of sale should not be required to make it transmissible as an incident of the mortgagee's estate.

In Dill v. Satterfield, supra, the ratification of a sale of mortgaged property, which had been made by an assignee of the mortgage under a power of sale given to the mortgagee, was excepted to upon the express ground that the power of sale had been conferred upon the mortgagee alone and could not be exercised by the assignee. This Court there held it to be clear, upon the authority of Berry v. Skinner, supra, that the power had been properly exercised although the appellant was held not to be entitled to raise that question in this Court because he had not appealed from the order overruling his exceptions and ratifying the sale but from a subsequent order awarding a writ ofhabere facias to the purchaser at the sale.

Nor do we think that the power of sale in this case was destroyed because the mortgagee's estate was for a time vested in the Safe Deposit and Trust Company. The charter of that corporation is not in the record and we therefore do not know what special powers it may possess. But assuming that it, like the corporations which were before this Court in the cases ofThe Frostburg Mutual Bldg. Assn. v. Lowdermilk, 50 Md. 179, and The Queen City Bldg. Assn. v. Price, 53 Md. 399, was incapable of executing the power, it does not follow that when the mortgage came to be vested in the appellee, who is entirely unaffected by such incapacity, he should be deprived of what was intended to be part of the mortgage security. The inability of the Safe Deposit Company to execute the power of sale did not arise from any defect in the power, but from the infirmity of the company itself. The original donees of the power were natural persons who were unaffected by any disability and it was therefore validly created as an incident of the mortgage estate and, as we have already said, it formed part of the security itself and passed with the estate to the successive assignees thereof. It must upon principle be held to have been exercisable by all such assignees except in so far as they may by reason of their own disability have been incapable of executing it.

The order appealed from will be affirmed.

Order affirmed with costs.

(Decided January 17th, 1902.)