John Hays vs. William H. Dorsey, 5 Md. 99

Le Grand, C. J., delivered the opinion of this court. This is an appeal from a decree of the Superior court, for Baltimore city, sitting as a court of equity. ' It appears from the record that the appellant, to secure the payment of certain promissory notes, payable to Messrs. Arthur and Miller, of the State of Missouri, executed to the appellee, on the 16th day of March 184S, a mortgage in trust for the benefit of the paj'ees of the promissory notes. The mortgage was executed under the acts of Assembly of 1836, ch. 249, and 1833, ch. 181.

On the 28th March 1851, all the notes being due, the appellee filed his petition praying a decree for the sale of the mortgaged premises, which was accordingly given. To this decree two objections are urged: — 1st. That Arthur and Miller should have been made parties to the proceeding; and 2nd. That the affidavit required by the act of 1833 should have been filed before the signing of the decree by the judge. Both of these objections are to be solved by (he act. It is

an act applicable exclusively to the city of Baltimore. It provides for an ex-parte proceeding; and, so far as the obiention of the decree is concerned, no summons is necessary, nor is any notice required to be given to any one. The rights of third parties are to be inquired into on the question of the ratification of the sale and not, before. The mortgagor, by executing his conveyance under the act, gives his “assent” to the passage of the decree; and so far as the authority of the court to pass it is involved, it is only necessary to file a petition and the mortgage.

In the particular case before us, although the mortgage was executed in trust and for the benefit of ■Afthttr and Miller, still the act contemplated the mortgagee, or his assignee, as the persons to file the petition and invoke the decree. The cestui que trusts are not anywhere required to be made parties. The third

section of the act provides, that the affidavit to the amount of indebtedness shall be made “by the mortgagees, their executors or administrators, or their assigns if the mortgage claim shall have been assigned.” Now were it conceded that in general the cestui que trusts are the proper persons to make the affidavit, yet in (his case the mortgage provides, that the appellee, after default of the mortgagor, shall make the sale and “apply the proceeds of sale to the payment of the principal debt then owing and unpaid, and all interest accrued.” Under this clause we think the affidavit was made by the proper party.

This cannot occasion any inconvenience or injustice to the mortgagor. If the mortgagor has actually paid the notes, he can show it when the sale is reported for ratification. If, on the other hand, he has not paid them, justice requires that the property mortgaged should be made available to that purpose; and when the funds come to be distributed, he has a right to demand the surrender of the notes before the mortgagee or the cestui que trusts are entitled to any of the proceeds. Thus his interests are fully protected.

In regard to the second objection it is but necessary to say, it is distinctly answered by the third

section of the act. It only requires the affidavit shall be filed “before” the sale. In this case, as yet, there has been no sale and the affidavit has been filed. We see no reason for setting aside the decree and accordingly affirm it. Decree affirmed.