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Wilson v. Cory

Decided: May 9, 1962.

WILSON ET UX.
v.
CORY



Appeal from the Circuit Court for Howard County; Macgill, J.

Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ.

Per Curiam

This appeal is by the mortgagors of real property located in Howard County, fronting on Lawyer's Hill Road, from an order overruling their exceptions to a foreclosure sale and ratifying the sale.

Exceptions had originally been filed by Leo Badart, the highest bidder (at $32,500) at the sale who had come to the auction with a certified check for $3,000, as required by the advertisement; and exceptions had also been filed by Adele L. Stolte and Harvey R. Stolte, her husband. Mrs. Stolte had made the highest bid, $33,000 at the first part of the auction, but did not have a certified check. After an interruption in the auction, during which Donald E. Doll conferred with the appellee, the attorney named in the mortgage to sell in case of foreclosure, telephone arrangements satisfactory to the appellee were made to transfer $3,000 in a savings account from Mr. Doll to the name of the appellee, so that Doll could qualify as a bidder. Thereafter the auction was resumed. Mrs. Stolte then either withdrew her bid absolutely or did so in favor of Mr. Badart, and Mr. Badart withdrew his bid. Doll then became the highest bidder at $33,000, and the appellee reported the sale to him at that price. Mr. Badart dismissed his exceptions prior to the hearing in the Circuit Court, and the Stoltes' exceptions were overruled by that Court. The Stoltes did not appeal.

The mortgagors-appellants contend that the sale was so conducted as to encourage inadequacy of price, confuse prospective bidders, suppress competition, and stifle or chill the bidding.

In addition to the facts above noted, it is undisputed that at the sale the appellee announced that the State Roads Commission planned to run a new road through the property within about 200 feet of the house. There was also evidence to show that after Mrs. Stolte had made the highest bid and after it was discovered that she had neither $3,000 in cash nor a certified check, she tried to speak with the appellee about qualifying as a bidder, but was discourteously treated and pushed by the auctioneer out of the house where Doll was conferring with the appellee and telephoning a savings and loan association in order

that he might make arrangements to qualify. Mrs. Stolte also testified at the hearing that she and her husband were prepared to bid up to $40,000, if necessary, to acquire the property.

We find the appellants' contention that the appellee should not have informed bidders at the sale of the plans of the State Roads Commission to be quite untenable. Information about those plans was originally given to the mortgagee bank several weeks before the sale by Mr. Wilson, one of the mortgagors. No condemnation proceedings had been filed prior to the time of the sale, but Mr. Wilson testified that the Commission had given similar information to prospective purchasers, and he had shown a plat showing the location of the proposed new road to the mortgagee a few days before the sale. We agree with the Chancellor that "[s]ince the expressway as outlined on the plat, would pass within two hundred feet of the mansion, it seems only equitable that interested purchasers should have been informed accordingly." Cf. Wicks v. Westcott, 59 Md. 270, 278-79 (duty of trustee making sale to give all information he had as to prior liens, at least if he referred to them at all); Ruby v. Bowlus, 217 Md. 115, 121, 140 A.2d 513, cert. den. 358 U.S. 856, reh. den. 358 U.S. 914; and Oldenburg & Kelly, Inc. v. Regester, 118 Md. 394, 397, 85 A. 411. See also the dissenting opinion in Woelfel v. Tyng, 221 Md. 539, 545-48, 158 A.2d 311.

The appellants concede in this Court the correctness of the Chancellor's holding that the appellee had power to waive the requirement that a bidder present cash or a certified check.

With regard to alleged irregularities in the sale affecting the price, the Chancellor stated in his opinion:

"Returning to the Mortgagors' exceptions, it will be observed at the outset that there is no persuasive evidence that the property was sold for a grossly inadequate consideration. No one except Mr. Wilson testified that the property had a market value in excess of the highest bids submitted."

"Assuming, without deciding, that there were irregularities, as alleged, during the sale, there was no evidence produced before ...


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