impleading or proceeding in such actions on jed that case from the King Case, although such terms as shall be just and reasonable," the allegation of negligence does not seem to we are inclined to hold that a demurrer may have been much more particular. be amended. It is certainly a proceeding incident to the trial. In any event, it is largely in the discretion of the court, and we think that discretion in this case should be exercised in favor of the application. Leave is granted to amend the demurrer. But in the case now before us we think the averment of negligence is stated with more particularity than in the Donohoe Case. In the present case the averment is "that while the said Theophilus S. Hill, in the exercise of due care and caution on his part, was alighting from said train at said destination, said train was carelessly and negligently After hearing argument upon the amended demurrer, the court rendered the follow-moved, and * * he was, by reason of ing opinion: such negligence and carelessness, thrown violently down upon the ground, and one of his legs was badly twisted, sprained, and injured," etc. We think that such allegation clearly distinguishes this case from the King Case, and that it is more particular than the averment contained in the Donohoe Case. We overrule the demurrer to the first, third, fourth, and fifth counts of plaintiff's declaration. to and did lay out and expend large sums of money for the purpose of having the said Theophilus S. Hill cured and healed of said ment is not very clearly or exactly expressed, injuries.'" We say that, while this avermanifestly it could mean but one thing, viz., that the administrator paid bills for the cure and healing of the deceased person which were incurred by the deceased in his lifetime. Certainly the plaintiff would not be permit ted to prove anything other than that re specting the bills paid for the healing and curing of his intestate. We think that is a fair construction of the language contained in those counts, and overrule the demurrer to the first, second, and third counts of plaintiff's declaration for the reason stated. PENNEWILL, C. J. In this case the defendant has demurred to each of the five counts of the plaintiff's declaration, and it is contended, first, that the first, third, fourth, and fifth counts in said declaration contained are uncertain and insufficient, in that it nowhere appears in said counts in what the negligence of said defendant consisted, it being alleged only that "said train As to the second contention of the defendwas carelessly and negligently moved," withant, viz.: "That the allegations in respect out specifying in what way it was so negto damages contained in the said first, secligently and carelessly moved. And it is argued that it is analogous to the case of King ond, and third counts in said declaration are insensible and repugnant, in that damages v. Wilmington & New Castle Electric Railway Company, 1 Pennewill, 455, 41 Atl. 977, Hill, and the said plaintiff since the death are alleged because 'the said Theophilus S. where the declaration alleged that the plain-of the said Theophilus S. Hill, were obliged tiff was injured through the carelessness and negligence of the defendant. The court said in that case: "Applying the same test, the first count in the declaration is manifest ly insufficient. It charges the defendant with 'so negligently and carelessly operating a certain electric car, which it was then and there running for the carriage of persons for hire, that thereby the said plaintiff, who was then and there a passenger on said car, was, through the negligence and carelessness of the said defendant as aforesaid, thrown from the car and injured.'" The said count was held to be insufficient. The case of Riedel v. Wilmington City Railway Company, 5 Pennewill, 572, 64 Atl. 257, follows the King Case; the averment in the narr. being practically similar. But in the case of Donohoe v. Wilmington City Railway Company, 4 Pennewill, 55, 55 Atl. 1011, the averment being as follows: "That the said defendant on the 17th day of August, A. D. 1901, at the city of Wilmington aforesaid, so negligently and carelessly operated one of its said cars that thereby the said car ran into and upon a certain wagon of the said plain-viding a safe place for the intestate to alight, tiff, which was then and there lawfully, and in the exercise of due care and caution on the part of the driver thereof, on one of the public streets of the said city, to wit, on Market street, and thereby the said wagon of the said plaintiff was greatly injured, damaged, and destroyed"-that averment was held to be sufficient. The court distinguish As to the third contention, viz., that "in each of the third, fourth, and fifth counts the plaintiff alleges, in varying language, that it was the duty of the defendant to provide a safe place for the intestate to alight, and to give the intestate opportunity to alight, and in each of said counts the plaintiff alleges negligence of the defendant in not pro and negligence of the defendant in not giving the intestate an opportunity to alight," we think that either of those averments of negligence, if proved, would constitute a perfectly good cause of action. We hold, therefore, that such allegations are double and sustain the demurrer to the third, fourth, and fifth counts on the ground of duplicity. (112 Md. 40) MCCARTY et al. v. GORDON et al. (Court of Appeals of Maryland. Jan. 11, 1910.) 1. MORTGAGES (§ 529*)-FORECLOSURE SALE SETTING ASIDE. A judicial sale of mortgaged property bona fide made will not be set aside because of a difference of opinion among the witnesses as to the value of the property, unless the price reported is so grossly inadequate as to indicate misconduct on the part of the mortgagee or purchaser. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1540; Dec. Dig. § 529.*] 2. MORTGAGES (§ 526*)-FORECLOSURE SALE- [Ed. Note.-For other cases, see Mortgages, Cent. Dig. § 1533; Dec. Dig. § 526.*] ty. The advertisement contained a further description, to wit: This farm consists of about 300 acres of Potomac river bottom land, with a limestone base and about 600 acres of limestone mountain woodland, much of it admirably adapted to fruit trees and orchards. The land produces blue grass naturally, and the bottom has long been known as the best corn-producing land in Western Maryland. The Baltimore & Ohio and the Western Maryland Railroads both have a station immediately adjoining this farm. There are two houses, the old homestead and a tenant house. There are stables and other buildings, and each field is well watered; the Potomac river skirting one side of the farm. It is about 6 miles from Keyser and 15 miles from Cum berland. There are massive beds of limestone on the property convenient to the Baltimore & Ohio Railroad. This property and improve Appeal from Circuit Court, Allegany Coun- ments were sold by the attorney in its en ty; M. L. Keedy, Judge. A mortgage given by Margaretta McCarty to Mary E. Gordon and others was foreclosed, and objections were filed to the ratification of the sale by William J. McCarty and Mary S. McCarty, assignees of Margaretta McCarty. The sale was confirmed, and the assignees appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, and THOMAS, JJ. R. W. McMichael, for appellants. Ferdinand Williams, for appellees. tirety at public sale, in front of the Third National Bank, in the city of Cumberland, on the 30th day of January, 1909, after the property had been exposed for sale for the period of 1 hour and 10 minutes. Subsequently, on the 6th of March, 1909, certain objections were filed to the ratification of the sale, by the appellants, Wm. J. McCarty and Mary S. McCarty, assignees of Margaretta McCarty, mortgagor. They are substantially as follows: First, that the price at which the property was sold was a totally inadequate one and greatly less than the value of the same and far less than the property would have brought had the sale been BRISCOE, J. The mortgage sale in this properly and fairly made; second, that at case was reported on February 3, 1909, in the and before the time at which the sale took circuit court for Allegany county, by Mr. place a certain person, to these exceptants Robert H. Gordon, the attorney named in a well known, falsely and maliciously, and for mortgage, from Margaretta McCarty to Mary the purpose of preventing persons desiring E. Gordon, Robert H. Gordon, and Seligman Hamburger, all of Allegany county, Md., and and intending to bid for the property at the the report states that the sale was made aft- sale, circulated a report throughout the neigher default, at public auction, to George H.borhood where the intending bidders resided Longerbeam, of the city of Cumberland, for the sum of $10,000. The mortgage was executed on the 10th day of June, 1903, to secure the payment of an indebtedness of $1,900, to Mary E. Gordon, the sum of $400 to Robert H. Gordon, and the sum of $1,500 to Seligman Hamburger, and at the date of the sale repeated defaults had been made in the payment of the interest. The property conveyed by the mortgage is stated to contain about 1,100 acres, situate, lying, and being on the North branch of the Potomac river above the city of Cumberland, in Allegany county, and known as "the Black Oak Bottom Farm." The property was at the request of the mortgagees duly advertised by the attorney, in the Cumberland "Daily Times," a newspaper published in the city of Cumberland, and by hand bills distributed by the attorney, as a mortgagee's sale of one of the most valuable farms, in Allegany coun that the title to the property was defective, and that the court or the mortgagees could not give a good title to the purchaser of the property, thus preventing the intending bidders from attending the sale and bidding on the property; and, third, for other good and sufficient reasons to be adduced, at the hearing of these exceptions. These exceptions were overruled, on hearing, by the circuit court of Allegany county, on the 25th day of March, 1909, and the sale, finally ratified and confirmed, and from this order an appeal has been taken. We do not regard either one of the objec tions urged against the ratification of the sale as sound or supported by the evidence set out in the record. There was no evidence to sustain the third objection, and it is sufficient to say it will not be considered. The second objection is also without merit and untenable. It is based upon a statement that a cer tain person falsely and maliciously circulated a report in the neighborhood that the title to the property was defective and a good title could not be given the purchaser, whereby intending bidders were prevented from attending the sale and bidding. It does not appear from the evidence that any bona fide purchaser, or any person with means, was prevented from purchasing the property by reason of the alleged rumor. It is not as serted in what respect the title was defective, except a bare statement made after the sale to the effect that the purchaser could not get the farm, "because it was willed to the children." There is nothing in the record to show that the title is defective, or that any person with any serious intentions of purchasing the property was either prevented from attending the sale, or bidding thereon, in consequence of the alleged report that the title was defective. On the contrary, the witnesses Brady and Seymour, who testify as to this rumor, were not influenced or affected by it. They both state they heard the rumor before the sale. The former advised several persons to purchase the farm, and the latter claims he is willing, since the sale, to give more than $10,000 for the farm. The witness Llewellyn, whom it is alleged was prevented from buying the farm because the title was "bad," stated that he was not able to purchase it. He testified, “If I had the money, I would give $15,000 for it myself," and Mr. Seymour was the only man, so far as he knew, who was willing to give that sum for it. Such testimony is entirely too vague, indefinite, and inconclusive, in the absence of proof indicating fraud or collusion on the part of either the attorney or the purchaser, to disturb or vacate a sale fairly made. The purchaser alone would be injured by a defect of title if any, and in this case there is no complaint whatever from him. The remaining questions arise upon the first exception, and they are, practically: Was the sale fairly made and for a price that ought to be approved by the court? under the conditions and with the result herein stated. The settled principle, upon which courts act, in dealing with sales like the present one, is too well recognized to admit of discussion. In Carroll v. Hutton, 91 Md. 380, 46 Atl. 967, it was said a judicial sale, bona fide made, will not be set aside because of difference of opinion among witnesses as to the value of the property, unless the price reported is so grossly inadequate as to indicate misconduct on the part of the mortgagee or purchaser. This subject is fully discussed and the rule applied by the court in a number of cases. Cohen v. Wagner, 6 Gill, 236; Johnson v. Dorsey, 7 Gill, 269; Warfield v. Ross, 38 Md. 85; Garritee v. Popplein, 73 Md. 322, 20 Atl. 1070; Bank v. Lanahan, 45 Md. 396; Chilton v. Brooks, 69 Md. 584, 16 Atl. 273; Thomas v. Fewster, 95 Md. 448, 52 Atl. 750. Applying these well-established rules to the case at bar, we think it is clear, upon the proof, that the alleged inadequacy of price is not of a character to authorize the vacation of this sale. Mr. Gordon, the attorney named in the mortgage, appears to have acted in entire good faith and to have fully discharged his duties under the terms of the power of the mortgage. In the case of Learned v. Geer, 139 Mass. 32, 29 N. E. 215, it was held that, if a mortgagee acts in good faith and fully conforms to the terms of his power, a court will not set aside a sale because it is a hardship upon the mortgagor. The hardship, if any, results from the contract of the mortgagor, and a court cannot relieve him from it without violating the rights of the mortgagee. There is no force in the contention that Mr. Seymour, an alleged bona fide intending purchaser, was kept from the sale by false reports and representations of the mortgagee's attorney that he desired the property to sell for $15,000. While it is true the attorney stated he desired the property to sell for $15,000, yet the witness was not willing to say the impression made upon him was that it Upon a careful review of the whole case, would not be sold for a less sum, if this we are all of the opinion there is nothing in amount could not be procured. The fullest the record to throw a doubt or cast suspicion opportunity was offered him to attend the upon the fairness of the sale, or to reflect up-sale and to bid for the property if he so deon the conduct of the attorney who made the sale or the purchaser of the property. In no view of the evidence can we perceive such inadequacy of price as would justify the rejection of the sale. There is some conflict in the testimony and difference of opinion among the witnesses as to the value of the farm; but the highest offer on the day of sale was $10,000. Some of the witnesses place the valne of the property at $10,000, others at $15,000, and the owner was willing to accept $13,000. The property had been divided into lots, and offered at private sale, and a bid of $13,-putation of fraud, misconduct, unfairness, or 000 therefore had been declined, at the request of the owner. Subsequently, it was advertised at public sale under the mortgage, sired. He will not be heard or permitted, at this late date, to allege his own neglect or inattention, as the cause of his mistake, or his having been misled, if misled at all, by so slight a circumstance. A sale of this character, when fairly and regularly made, will not be disturbed upon such narrow or technical grounds. The conduct of Mr. Gordon, in the whole transaction, appears to be entirely free from any charge of bad faith, and there is no evidence whatever that can by any reasonable hypothesis be construed into an im mistake, in the sale, on the part of either the attorney who made the sale or the purchaser. Inadequacy of price, standing by itself, is not sufficient to vacate a sale, unless it be so, at private sale, and I told Mr. McCarty that gross and inordinate as to indicate mistake the only thing I thought to be done was to or unfairness for which the purchaser is responsible or some misconduct or fraud by the attorney who makes the sale. The testimony of Mr. Gordon is very clear and conclusive, as to his efforts to procure bidders and his good faith in making the sale. It is as follows: "The interest on the mortgage in which I had been named as attorney had been overdue for a considerable time, and one of the mortgagees named in the mortgage was constantly after me to either collect the interest or sell the property as attorney. That was all during the spring and summer of 1908. I tried to postpone it as long as I could, and I told Mr. McCarty that something would have to be done, that the parties were insisting on the payment of the interest, and finally he consented to have me advertise the property as attorney for Mr. McCarty and his wife as the owner. We thought we could probably sell to better advantage by dividing it into two parts. I went upon the property with Mr. McCarty and formulated a description for a division of the property and then advertised the property for sale as an entirety and in two parts, as will be shown by a copy of the advertisement which I will file. I had a number of bills struck off and sent bills to Garrett county to friends of mine, up to Moorefield, to be placed in Somerset county in Pennsylvania, and tried to locate people that were likely to buy farms. Mr. McCarty and I worked together in connection with this matter. We offered the property for sale, and on the day of the sale we had a bid of $13,000 for the property as an entirety, and something less I think than $11,000 for the two parts. I am not positive about the figures. After having it cried for a long time, Mr. McCarty talked to some of his friends about the bid of $13,000, and they did not seem to think it enough. I hoped to get more than that for Mr. McCarty, and he thought if we withdrew it we could get more at private sale. I concurred in this and was under the impression that we might be able to do better. The sale was then withdrawn, and from that time on for the next three months or more we tried to find purchasers at private sale. I had the matter up with a number of people. I went to see Mr. Reynolds, who had made the bid of $13,000 on the day of the sale, to try and see if his party wouldn't increase the price. I also saw Mr. Seaver, and he thought he had a party. He afterwards advised me that he could not do anything with it. I subsequently found, or at least so understood, that the party who had bid $13,000 through Mr. Reynolds was the party Mr. Seaver had in mind, Mr. Fesenmier, and that he had gotten out of the notion of buying the property. I then found that put it up under the mortgage and sell it. The property was then advertised, the bills were struck off, and I talked to everybody I saw about it that I thought would be interested. Saw Mr. Charlie Seymour on the road to Keyser on the train, talked to him about it, and told him that I thought it was a valuable property, and I saw his brother up there that day, Mr. Aaron Seymour, that day. Mr. Aaron Seymour came down to my office that same afternoon or the next day. I understood he was looking for a farm, and I talked to him a good while about it, and told him I thought the farm ought to be worth about $15,000. I did not tell him that I wouldn't sell it for less than $15,000, because I had no power to fix the price, and, in addition to that, Mr. McCarty told me he was willing to sell it at $13,000 whenever he could get it in order to have the matter closed up. The interest was accumulating, and he was anxious to have the matter settled. Mr. Seymour got a couple of the sale bills from me and promised me he would be over on the day of the sale. That was the last I heard of him. I carried a bunch of the small bills in my pocket for some little time before the day of the sale and handed them out personally to people I saw and thought would be probably interested. On the day of the sale the weather was inclement. The wind was blowing, and I think there was some little snow flying, very much such a day as today, probably a little colder. It was a blustery raw day. I know I had not been well, and I alternated between the outside and the bankroom myself. Mr. McCarty was there when the sale first started, and I did not see him afterwards. The sale was continued for over an hour. It was knocked down to Mr. Longerbeam. That afternoon Mr. Longerbeam came to me and said he didn't want to take this property. He said he wouldn't pay the money. I then didn't know what to do. I went to see Mr. McHenry, who represented the German Savings Bank, and see whether they would take the property off of Mr. Longerbeam's hands for $10,000, and was making some arrangements looking towards that end; but, before I was notified in regard to that, I saw Mr. Robert Shriver of the First National Bank and tried to get to see if they wouldn't take it in Mr. Longerbeam's place. I went to see Mr. Shriver because his bank was the holder of some unsecured paper of Mr. McCarty's, and I thought I would get them interested in it for that reason. He waited until he saw one of the directors, and then advised me that they would not touch it. I think it was on the Tuesday, following Tuesday, that Mr. Longerbeam came in and paid the $1,000, and then I reported the sale. When Mr. Longerbeam advised me afterwards we had statement of the mortgage, stating, "I will pay the same off pending arrangements," and, on of the amount due, wrote the mortgagee, "Herethe day following the receipt of the statement with inclosed, I hand you check for $177.05 of the mortgage," of M., etc., and asking an assignment of the mortgage and that it be not releasrendered conditional by the request that the ed. Held, that the tender was effectual, and not mortgage be assigned and not released. [Ed. Note.-For other cases, see Mortgages, Cent. Dig. §§ 1788-1794; Dec. Dig. § 605.*] 4. MORTGAGES (§ 605*)-REDEMPTION-ASSIGN MENTS. equity of redemption of mortgaged premises, or told Mr. Longerbeam that, if he did not come up and comply with the terms of the sale, I would immediately get an order of the court authorizing a resale of the property at his risk, and subsequent to that conversation he came over and complied with the terms of sale by paying $1,000; the balance to be on day of ratification. I was compelled to do this because I thought I had exhausted the power contained in the mortgage and might make myself responsible if I failed to get the sanction of the court. Q. Can you state how far the proceeds of sale will go toward satisfying the liens against this property? A. I could not exactly. It would take all I think to satisfy the liens at the present time I think. I worked harder at that sale than any other sale before in my life, and this I did on account of my personal friendship towards Mr. McCarty and his wife. Q. I suppose in your 20 years practicing at the bar you have had plenty of experience in regard to judicial sales? A. I have been at the bar over 35 years, and have had some experience with sales." We are convinced, upon a careful examina-amount then due on the mortgage in order to tion of the whole case, that Mr. Gordon acted in the utmost good faith in making this sale, and there being no just ground to doubt the propriety of the sale, and there being no valid objections against it, the decree of the court below, overruling the exceptions, and ratifying and confirming the sale, will be affirmed. The costs in the court below to be paid as directed by the decree; the costs in this court to be paid by the appellants. Decree affirmed; costs in the court below to be paid out of the fund in the hands of the attorney, and the costs in this court to be paid by the appellants. (Court of Appeals of Maryland. Jan. 11, 1910.) 1. JUSTICES OF THE PEACE (§ 129*)-JUDGMENT -IRREGULARITIES-REMEDY. Where defendant in a suit before a justice of the peace has been summoned, and the justice has acquired jurisdiction of the cause, the only remedy for subsequent irregularities is by appeal. [Ed. Note.-For other cases, see Justices of the Peace, Cent. Dig. §§ 408-411; Dec. Dig. 8 129.*] 2. MORTGAGES (8 594*)-FORECLOSURE-RIGHT TO REDEEM-JUDGMENT CREDITOR. Execution and delivery of a sheriff's deed to a judgment creditor pursuant to a sale of real property on a justice's judgment, duly recorded, was evidence of a sale of the property to a judgment creditor, though the deed was not recorded, and of his right to redeem from a mortgage on the property. CONFIRMATION-OBJECTIONS. Where a purchaser of mortgaged premises on execution tendered to the mortgagee the full redeem, the mortgagee had no right to refuse the tender and institute foreclosure proceedings, and hence redemptioner was entitled to except to the confirmation of the foreclosure sale under ing that all sales under a mortgage shall be reCode Pub. Gen. Laws 1904, art. 66, § 9. providported to the court, which shall have power to determine any objections filed against it by any person interested therein. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 526.*] Appeal from Circuit Court, Kent County; James A. Pearce, Judge. Suit by the Kent Building & Loan Company against Jesse K. Middleton and others. A sale of real estate under foreclosure decree having been made, Charles B. Watkins, a judgment creditor, filed exceptions to the redemption of the sale, and, from an order setting aside the sale and allowing Watkins 30 days to redeem, the building and loan company appeals. Affirmed. Argued before BOYD, C. J., and BURKE, SCHMUCKER, and THOMAS, JJ. John D. Urie, for appellant. Hope H. Barroll, for appellees. THOMAS, J. On the 28th of February, 1903, Jesse K. Middleton, of Kent county, with his wife, Hester E. Middleton, executed and delivered to the Kent Building & Loan Company, of Chestertown, Md., a mortgage on his property situated in said county to secure a loan of $500 from the company. On the 23d of December, 1904, Charles B. Watkins recovered a judgment of a justice of the peace against him for $58. [Ed. Note. For other cases, see Mortgages, 26, which was recorded January 16, 1905, Dec. Dig. 594.*] and on April 17, 1905, a judgment was ob3. MORTGAGES (§ 605*)-REDEMPTION-TEN-tained against him for $155.15 by Josiah C. The attorney for a purchaser of land on Armiger. Execution was issued June 22, execution wrote to the mortgagee asking for a 1906, on the Watkins judgment, and the DER. •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes |