Gayle v. Fattle

The mere claim by a third person of a paramount title, not alleged by the bill to be valid, and bringing suit upon that claim against the purchaser, are not sufficient to authorise a court of equity to stay, by injunction, the vendor who has warranted the title, from proceeding either at law or in equity to collect the unpaid purchase money. No injunction to stay a sale under the Act of 1826, ch. 192, can be granted, unless the bill be filed by the party, and contain the allegations, required by the eighth section of that Act. If a sale is made without a compliance with the requisitions of the Act of 1826, ch. 192, the proper time to take advantage thereof is when the sah is reported.

Appeal from the Circuit Court for Baltimore City This appeal is from an order granting an injunction, upon a bill filed by the appellee against the appellants, on the 16th of June 1857. The case made by the bill and exhibits is this: On the 21st of February 1853, the complainant purchased from the defendant Charlotte Gayle, (then Charlotte Tipton,) a farm in Baltimore county, containing eighty-eight acres, for $5544, payable one-third in cash, one-third in four years, and the balance at the death of Mrs. Ann Hill. This sale was evidenced by a written receipt of the said Charlotte, which, after acknowledging the receipt through Geo. W. Davis, agent for Fattle, of $20, as part payment on the farm, specifies the terms of sale, and says, “the credit payments to bear interest from the day of the date of the title of said farm to the said Fattle, and said farm, or title of said farm, to he clear of all encumbrances of every nature and kind whatsoever. ’ ’ Relying upon this agreement the complainant made the cash payment agreed upon, and in April following the said Charlotte delivered possession of the land to him. At the time of this contract the said Charlotte was a widow, and entitled to the land, as cestui que trust, under a deed of trust from S. W. Hill, her father, she having by the deed power to sell and dispose of the same as she thought proper, subject, however, to the dower of Ann Hill, the widow of S. W. Hill. On the 5th of April 1853, the said Charlotte, by deed of that date, in which the trustee and Ann Hill united, conveyed the land to the complainant, in which deed, the bill alleges, from inadvertence and ignorance on the part of the complainant, he being wholly unacquainted with legal documents, and being a German, not readily understanding the English tongue, there was no covenant or stipulation inserted for assuring to the complainant a good title as had been stipulated in the written agreement made with the said Charlotte, but simply a covenant of warranty against all persons claiming under the said Charlotte, or her father, the said S. W. Hill, but the complainant avers that he did not, by reason of that omission and inadvertence, lose the benefit of the said agreement but, that the same is still in force, and he is entitled to the benefit thereof. On the same day the complainant executed a mortgage of the land to the said Charlotte and Ann Hill, to secure the payment of one-third of the purchase money to said Charlotte at the end of four years, the interest on the remaining third to be paid quarterly to Ann Hill during her life, in lieu of dower, and the said remaining third to be paid to said Charlotte in six months after the death of Ann Hill. This mortgage contains an agreement that, if default is made by the mortgagor in payment of the mortgage debt or any part thereof, or the interest thereon or any part of such interest, the whole mortgage debt, principal and interest, remaining unpaid, shall immediately thereafter become due and payable, and it shall and may be lawful to and for the said Charlotte Tipton, her heirs, executors, administrators or assigns, and she or they are hereby fully authorised to foreclose this mortgage and sell all the said mortgaged property in- the same manner as if the whole mortgage debt had become due and remained unpaid, and to appropriate and apply the' proceeds-to the payment thereof, or of so much as may be then unpaid; and as between the said Charlotte and Ann, it was agreed that in case default shall be made in payment as aforesaid, the party towards whom default is made shall be at liberty, and is hereby authorised to use the name of the other j'ointly with that of herself to foreclose this mortgage. The bill charges that this mortgage does not contain any power to the mortgagee to sell the mortgaged property, nor any assent to the provisions of the Act of 1826, ch. 192; that the complainant has duly and regularly paid the several instalments of interest as they became due, and is willing to continue to pay the same; that? in 1854, the said Charlotte intermarried with Benjaman R. Gayle, and that in that year an action of ejectment was instituted in the Circuit Court for Baltimore county, by one Chamberlain against the complainant and another to recover, among other things, the land so purchased by the complainant, the said Chamberlain claiming title thereto or to some portion thereof, and that this action is still pending; that complainant gave written notice of this action to Gayle and wife, and warned them to come forward and defend the title to the property, but they have hitherto neglected to take any step in that h®^ half; that, by reason of this action, complainant’s title to the5 land has become clouded, and he is in danger of losing the same or some part thereof; that Gayle and wife have attempted to force a sale of the land, notwithstanding the pendency of this ejectment and the doubt by reason thereof cast upon the title; that complainant has earnestly entreated them to postpone any attempt to sell until this action is decided, when he will be ready and willing, if he is successful therein, to pay the balance of the purchase money, and all interest thereon; but they have refused to grant this request, and persist in attempting to forcea sale, which, if carried into effect, will cause a ruinous sacrifice to him; that though the mortgage contains no power to the mortgagee to sell the mortgaged property, yet Gayle and wife have executed a paper purporting to be a power' of attorney, in which they profess to authorise their attorney to sell under the provisions of the Act of 1826, ch. 192, eighty acres part of said land, but not the remaining eight acres, and notwithstanding the pendency of the ejectment said attorney has advertised, not only that part of the land mentioned in the power of attorney, but also the eight acres not mentioned therein, for sale at public auction, at the Exchange in Baltimore-city,- on the 17th of June 1857; that said attorney has failed* to give, at least twenty days’ notice of the time, place and manner of sale in a newspaper published in Baltimore county out of the limits of Baltimore city, as required by the Act of Assembly in such case made and provided, although there is-one or more newspapers now, and have been for more than-twenty days past, published in Baltimore county,- out of the* limits of said city, and that he is about to make-a forced sale of the land,- at the Exchange in the city of Baltimore, out of the* limits of the county where the lands lie, though all mortgage-sales, as complainant is advised and charges, are required, by the Acts of Assembly, to be made in the county where the mortgaged premises are situated; that it is doubtful whether-Gayle and wife could execute such power of attorney so as to-give any power to sell thereunder, and even if they can confer on their attorney power to sell the mortgaged property,yet this paper is defective, because only a portion of the prop-erty is authorized by it to be sold; that a sale of the property, under the circumstances above set forth, is contrary to the Acts of Assembly, and that any attempt to proceed with such sale, while the aforesaid action of ejectment is pending, will involve the complainant in expensive and disastrous litigation,- and may cause a ruinous sacrifice of his property, and that, too, without any corresponding advantage to the said Charlotte, inasmuch as she and her husband will be liable to complainant in case of ultimate loss to him, in pursuance of her above mentioned agreement to give him a good and sufficient title to the land. The prayer of the bill is for an injunction restraining the sale of the property, and for general relief. The court (Krebs J.) ordered the injunction to issue as prayed, and from this order the defendants, Gayle and wife; having first filed their answers, appealed.