Lakrest Development Co. v. Eisele

Singley, J.,

delivered the opinion of the Court. Barnes and Finan, JJ., dissent. Dissenting opinion by Barnes, J., in which Finan, J., concurs, at page 51 infra.

In this appeal, the appellant, Lakrest Development Company, Inc. (Lakrest) challenges the propriety of the granting of a summary judgment by the Circuit Court for Prince George’s County (Parker, J.) for $5,-130.00 in favor of the appellees, Maryland State Savings & Loan Association (Savings Association), the successor beneficiary under a deed of trust executed between Lakrest as grantor and Clifton M. Eisele, Jr. and Carlyle J. Lancaster, grantees and trustees named in the deed of trust (the trustees), representing the total amount of two one-half commissions of $2,565.00. Lakrest does not challenge the allowance of one of the two one-half commissions claimed by the trustees, but does challenge the allowance of the second one-half commission.

Lakrest, on December 31, 1964, executed the deed of trust on two tracts of land in Prince George’s County of 29.017 acres and 5.871 acres, respectively, to secure the Savings Association for the repayment of $140,-000.00. This deed of trust, in the conventional form in use in Prince George’s and Montgomery Counties, provides for the advertisement and sale of the subject properties by the trustees in the event of a default and contains the following provision:

“10. That if the property on which this trust is secured shall be advertised for sale hereunder and not sold, the Trustees acting herein shall be entitled to one-half of the commission as *47herein provided, computed on the amount of the debt hereby secured, and the same is hereby secured in like manner as any other charge and expense attending the execution of this trust and shall bear full legal interest.”

There was also a provision in the deed of trust that upon a sale of the subject property the commission of the trustees shall be 5% of the amount of the sale.

After the execution and recordation of the deed of trust, Lakrest defaulted in the payment of the indebtedness and the Savings Association instructed the trustees to proceed to advertise and sell the subject property pursuant to the provisions of the deed of trust. The trustees advertised the property for a sale to be held on March 25, 1969. On the day of the sale the president of Lakrest appeared at the place of the sale and requested the president of the Savings Association not to proceed with the sale of the property at that time, representing that sufficient money could be raised to save the property from foreclosure. The president of the Savings Association voluntarily agreed to call off the sale, the trustees acquiesced in this decision, and the sale was postponed. Lakrest, however, failed to produce the necessary amount of money to prevent foreclosure, and the trustees, on instructions of the Savings Association, for the second time advertised the subject property for sale. This sale was to be held on April 22, 1969. Shortly prior to the sale on April 22, Lakrest filed a petition for an injunction to stay the foreclosure and on April 21, 1969, the Circuit Court for Prince George’s County passed an order enjoining the sale.

Thereafter, as a result of conversations between counsel for Lakrest and for the trustees, a hearing was not held in the injunction proceedings, which were, by agreement of counsel, dismissed with prejudice. It was recited in the order for the dismissal that Lakrest would waive any objection it might have to a readvertisement of the subject property and that it agreed to “a re-advertise*48ment in precisely the same form, excepting only the sale date, as previously utilized by the Defendant-Trustees.” For the third time, the trustees proceeded to advertise the subject property for sale, the date of this last advertised sale to be May 20, 1969. On May 19, 1969, Lakrest paid the balance of the indebtedness,1 including expenses, so that the property was not sold on May 20. The trustees charged two one-half commissions in the amount of $2,565.00 each, calculated in accordance with the provisions in the deed of trust, in connection with the proposed sale of April 22, 1969, stopped by the injunction, and with the proposed sale of May 20, 1969, stopped by Lakrest’s payment of the indebtedness, including expenses.

At the settlement, Lakrest permitted the settlement attorney to retain the amount of two one-half commissions, aggregating $5,130.00 in amount, under protest, and thereafter filed an action at law against the Savings Association and the trustees to recover the $5,130.00. The trustees filed a motion for summary judgment, with supporting affidavits setting out the above and other facts, alleging that there was no dispute in regard to any material facts and that they were entitled to judgment as a matter of law. After considering the affidavits and counter-affidavits of Lakrest as well as argument of counsel, Judge Parker granted summary judgment in favor of the defendants for costs.

Lakrest conceded in its brief and at the argument before us that the trustees are entitled to one one-half commission, but that “the imposition of the second commission is excessive and returnable to the property owner.”

The result reached below must be examined in the light of our prior decisions. Our predecessors have held that in the absence of a binding provision in a mortgage or deed of trust covering the payment of commissions, no commissions are payable on the sale of the property, Johnson v. Glenn, 80 Md. 369, 30 A. 993 (1895) ; Rap*49panier v. Bannon, 66 Md. xii (unreported), 8 A. 555, at 569-570 (opinion) (1887) and see also Goldberg v. Price, 218 Md. 602, 147 A. 2d 745 (1959) and Griffith v. Dale, 109 Md. 697, 72 A. 471 (1909). It has also been held that one-half commissions are not payable, unless the mortgage or deed of trust so provides, when the property is redeemed by the mortgagor after advertisement but before sale, Dorsey v. Omo, 93 Md. 74, 48 A. 741 (1901). For the procedural similarities in the enforcement of deeds of trust and mortgages, see Maryland Rules, Subtitle W, and particularly Rule W 77 a; LeBrun v. Prosise, 197 Md. 466, 473-74, 79 A. 2d 543 (1951) ; Manor Coal Co. v. Beckman, 151 Md. 102, 115-16, 133 A. 893 (1926).

As a consequence, it is not uncommon to find in deeds of trust and mortgages containing a power of sale or an assent to a decree provisions comparable to that found in paragraph 10 of the Lakrest deed of trust. Such a provision is obviously designed to compensate trustees and assignees for the time and effort expended in instances where the debt is satisfied before foreclosure and the property is withdrawn from the sale. Hersh v. Allnutt, 252 Md. 513, 250 A. 2d 629 (1969).

We read the Lakrest deed of trust provision, “That if the property on which this trust is secured shall be advertised for sale hereunder and not sold * * as meaning that entitlement to one-half commissions is conditioned on a failure to make the sale, see Arundel Asphalt v. Morrison-Johnson, Inc., 256 Md. 170, 175, 259 A. 2d 789 (1969) and not on the number of sale dates which may have been advertised. See also George v. Forest Glen Land Co., 52 App. D.C. 73, 281 F. 577 (1922), where a commission was denied when the property was advertised, but the sale was postponed at the instance or fault of the trustee.

The result which we reach engenders no inequity. On the one hand, readvertisement imposes no particularly onerous burden on the trustees; on the other, the deed of trust was a printed form provided by the lender and incorporates terms generally imposed on borrowers. We *50cannot say that paragraph 10 is wholly free from ambiguity. It is hardly necessary to reiterate the rule that the provisions of an ambiguous instrument should be strictly construed against the one who prepared it. Kelley Constr. Co. v. Washington Suburban Sanitary Comm’n, 247 Md. 241, 250, 230 A. 2d 672 (1967); Cadem v. Nanna, 243 Md. 536, 544, 221 A. 2d 703 (1966).

Nearly a century ago, in McCullough v. Pierce, 55 Md. 540 (1881), our predecessors, in rejecting the idea that a trustee selling under a court decree could charge commissions on the amount of a sale reported to a purchaser who defaulted, said:

“Any other rule would operate unjustly, and would offer a temptation to trustees to make sales to irresponsible bidders, at extravagant prices without any reasonable expectation that the terms of sale will be complied with, if commissions were to be allowed upon the whole price at which every sale may be made and reported, without regard to the amount realized therefrom.* * *” 55 Md. at 546.

Similar hazards might be inherent in holding that one-half commissions could be charged each time a property was advertised, but not sold.

In George v. Forest Glen Land Co., supra, the Court relied on McCullough v. Pierce, supra, and said:

“* * * If the construction urged by the trustee were adopted [that one-half commissions were payable each time the property was advertised] trustees similarly situated would be placed in a position where their private interests would tempt them to be unfaithful to their duties to the parties beneficially interested. The law does not encourage that sort of thing, and the contract should not be interpreted so as to create such a situation, unless it can mean nothing, else.” 281 F. at 580-81.

*51On the reeord before us, we are satisfied that the trustees are entitled to but a single commission of $2,-565.00. We would not necessarily reach the same result if a second and wholly new foreclosure proceeding had been instituted after the property had been withdrawn from sale. Compare Walsh v. Jefferson Fed. Sav. & Loan Ass’n, 216 Md. 131, 139 A. 2d 847 (1958).

Judgment reversed, case remanded for entry of judgment for $2,565.00 and costs in favor of LaJcrest Development Company, Inc., costs of this appeal to be paid by appellees.

. Which by this time had been reduced to $102,605.08.