that he should become the guardian of his own child. Eligibility to appointment as guardian is not property, nor is it a right of property. It pertains exclusively to the person. It may be given or withheld by the law of the state in which the parent and child reside. The withholding thereof from all parents would be within the power of the state." The act under consideration is not discriminatory, for it applies alike to all minors, no matter what governments they may be subjects of, and applies equally to the person attempting to be guardian, whether he be the parent of a minor or an alien. It is to be remembered that the dire consequences pointed out as a result of failure of the native-born minor to be allowed to have the guiding hand of his alien parent lead him through the mazes of minority are merely argumentative pictures, for our statutes provide for two sorts of guardians,-one of the person and the other of the property of the minor,-and, as we read § 3, chap. 50, Laws 1921, p. 157, supra, it relates only to guardianship of the property of the minor. If this is true, the native-born child of alien parents can have all the benefit of that alien as his guide, philosopher, and friend generally, and is only prevented from turning his real property over to that guardian, which could, in a great many instances, result in an evasion of what the state legislature has determined to be a beneficent policy. The supreme court of California, in Re Tetsubumi Yano, supra, considered the question of the appointment of an alien as guardian of his American-born child, where part of the child's estate was land, and there arrived at a conclusion contrary to that which we have reached, largely basing its opinion upon the theory that the appointment of alien guardians does not permit evasion of the law forbidding aliens ineligible to citizenship to own agricultural land, the court saying: "The appointment as guardian would not enable such parents to acquire, possess, or enjoy agricultural land, and therefore their ineligibility to such employment could not prevent their so doing. A guardian neither acquires, possesses, nor enjoys the property belonging to the ward, in any accurate or legal meaning of those terms. At most, he merely has, for some purposes, the control of the property, but the control is not in his own right and does not inure to his benefit. He controls it as trustee only, and is held to strict accountability to the child, for all the benefits accruing from the use of it. He must render such accounts annually, or oftener, if required by the court. He must hold all the receipts from the farming operations as the property of the native-born child, and must use so much of it . . as may be necessary, and no more, and must safely invest the remainder as the property of the child and for its sole use and benefit. In all of his acts as guardian he is under the supervision and control of the superior court of the county. His compensation is limited to the reasonable value of his services, and is to be fixed by that court. The use is in the child, not in the guardian. When the child becomes of age the control of the guardian immediately ceases. If the child should die, the control would pass forthwith to its heirs, and the alien parent, in that event, would not even inherit the property, or any part thereof. It seems plain that, since the alien parent could not by this means evade the operation of the law, nor acquire, possess, or enjoy agricultural land, the law cannot be upheld on the ground that such persons constitute a class, and the only class, who attempt to evade the law forbidding alien bidding alien ownership. They could not, by the use of such guardianship, enjoy the rights of ownership. The classification is therefore clearly arbitrary, and does not 'suggest a reason which might rationally be held to justify' the peculiar legislation addressed to the class." We think the California court was (130 Wash. 188, 226 Pac. 505.) wrong in taking the purely academic view of the situation and blinding itself to the practical operations. It takes no imagination and only a limited understanding of the real situation to know that, whatever judges may say upon the subject, a very large nullification of the Alien Land Law would occur where the native-born progeny of the fecund aliens are permitted to have alien parents as guardians of their real estate. The trial court was correct in denying the petition, and the judgment is affirmed. Main, Ch. J., and Parker, Holcomb, and Tolman, JJ., concur. ANNOTATION. Validity of statute precluding alien from acting as guardian. The question of the validity of a statute prohibiting an alien from acting as a guardian seems to have arisen only on the Pacific Coast, where such statutes have been enacted apparently with respect to the Japanese. Besides the reported case (RE FUJIMOTO, ante, 937), which arose in Washington, there are at least two California cases dealing with the subject. In the case of Re Tetsubumi Yano (1922) 188 Cal. 645, 206 Pac. 995, it appeared that an alien, a Japanese subject, had been appointed guardian of his infant daughter's estate, she being a citizen of California and of the United States. It was held that the statute barring an alien from acting as a guardian, having been passed subsequent to the appointment, did not affect it. The court went farther, and declared the statute to be invalid as being in violation of the 14th Amendment. In Sakurai v. Superior Ct. (1924) 65 Cal. App. 280, 223 Pac. 575, it appeared that the superior court of Los Angeles county entered an order appointing an alien as guardian of his American-born child's estate. Subsequently a statute was passed providing that a person ineligible to citizenship in the United States could not be appointed guardian of any estate which consisted in whole or in part of real property. Thereupon the judge refused to approve the guardian's bond when it was presented to him. Mandamus was asked to compel the court to approve the bond. It was held that, once having entered a valid order appointing an alien a guardian, it was the duty of the court not only to approve the guardian's bond, but to refrain from setting aside its order of appointment. But in the reported case (RE FUJIMOTO) a statute prohibiting an alien from acting as guardian is held to be valid, and the ruling of the California court is disapproved. W. Q. F. EFFA A. OWENS, Appt., V. G. CLEM GRAETZEL. Maryland Court of Appeals - July 22, 1924. (146 Md. 361, 126 Atl. 224.) construction of contract no advance payment. 1. Under a provision in a mortgage, dated August 1, under which interest for the first quarter is deducted in advance, that interest is payable on the 1st days of August, November, February, and May, the subsequent payments of interest are not to be paid in advance. [See note on this question beginning on page 951.] APPEAL by defendant from a decree of the Circuit Court No. 2, of Baltimore City (Dawkins, J.), overruling exceptions to the ratification of a mortgage sale and ratifying the same in a suit to foreclose a mortgage. Reversed. The facts are stated in the opinion of the court. Mr. James Morfit Mullen, for appellant: The mortgage does not require interest to be paid in advance. Roberts v. Morsell, 10 Md. 32; Re Payne, 10 A.L.R. 998, note; 22 Cyc. pp. 1482, 1483; 16 Am. & Eng. Enc. Law, 2d ed. p. 1002; Cooper v. Wright, 23 N. J. L. 200. Courts of equity have generally set aside sales under mortgages, when matters in pais require notice or demand before proceeding to sell. Higbee v. Chadwick, 136 C. C. A. 317, 220 Fed. 873; Clevinger v. Ross, 109 Ill. 349. The advertisement of sale was fatally defective. Graham v. Wellington, 121 Md. 660, 89 Atl. 232; Iverson v. Perlman, 137 Md. 62, 111 Atl. 220; Byrd v. Day, 138 Md. 442, 114 Atl. 486; Steuart v. Meyer, 54 Md. 454; Miller, Eq. § 490, notes 4, 5, p. 571; 27 Cyc. p. 1472. The tender of interest did not change the rights of the parties. Laubheimer v. Naill, 88 Md. 174, 40 Atl. 888; Starr v. Yourtee, 17 Md. 341; 22 C. J. pp. 417, 418, 420, note 75; Gorter, Ev. p. 150; 38 Cyc. 164, note 65. Messrs. Frank Driscoll and George H. Leimkuhler, for appellee: To obtain a decree it is only necessary to file the mortgage and a petition praying for a decree. No summons is necessary, and no notice is required to be given to anyone. Miller, Eq. § 476. The party filing the bill is under the burden of proving its allegations. Clark v. Clark, 139 Md. 44, 114 Atl. 722. The question as to usury in the mortgage can only arise upon the statement of the final account of the auditor. It cannot be urged as an ob jection to the ratification of the sale. (146 Md. 361, 126 Atl. 224.) Miller, Eq. § 484, p. 563; Smith v. Myers, 41 Md. 425. Tender of interest after it is due does not avoid the consequences of a breach of a condition in the mortgage, providing that upon a failure to pay the interest when due the whole debt should be demandable. Schooley v. Romain, 31 Md. 574, 100 Am. Dec. 87. Bond filed before sale is in time. Miller, Eq. § 463; American Tobacco Co. v. Strickling, 88 Md. 510, 69 L.R.A. 909, 41 Atl. 1083. Inadequacy of price is no ground for setting a sale aside. Mahoney v. Mackubin, 52 Md. 357; Hubbard v. Jarrell, 23 Md. 66; Bank of Commerce v. Lanahan, 45 Md. 396; Condon v. Maynard, 71 Md. 601, 18 Atl. 957. Digges, J., delivered the opinion of the cour: This is an appeal from a decree of circuit court No. 2, of Baltimore city, overruling exceptions to the ratification of a mortgage sale, and finally ratifying the same. The facts as disclosed by the record are substantially as follows: On the 1st day of August, 1923, the appellant, Effa A. Owens, borrowed the sum of $3,200 from the appellee, and to secure the payment thereof executed a mortgage on certain leasehold property located in Baltimore city, particularly described in said mortgage as lying on the north side of Brighton street, which property belonged to the appellant. The portions of said mortgage necessary to be considered for the proper determination of the case are as follows: "This mortgage, made this 1st day of August, in the year 1923, by and between Effa A. Owens, formerly Effa A. Patterson, and Harry Hazlip, mortgagors, of the city of Baltimore, in the state of Maryland, of the first part, and G. Clem Graetzel, mortgagee, of the second part. "Whereas, the said mortgagee hath this day lent unto the mortgagors the sum of thirty-two hundred ($3,200) dollars, to be repaid two years after date, with interest at 6 per cent, payable quarterly on the 1st days of August, November, 39 A.L.R.-60, February, May, and for which principal sum of thirty-two hundred ($3,200) dollars the said mortgagors have passed unto the mortgagee their negotiable promissory note of even date herewith, payable two years after date, with interest aforesaid: "Provided, that if the said mortgagors, their executors, administrators, shall well and truly pay or cause to be paid the aforesaid principal sum of thirty-two hundred ($3,200) dollars and all the instalments of interest thereon when and as each of them shall respectively be due and payable as aforesaid, and shall perform each and all of the covenants herein on their part to be performed, then this mortgage shall be void. "And the said mortgagors do hereby declare and assent to the passing of a decree by the circuit court of Baltimore city, or the circuit court No. 2, of Baltimore city, for a sale of the property hereby mortgaged, in accordance with chapter 123, §§ 720 to 732, inclusive, of the Laws of Maryland, passed at the January session in the year 1898, or any supplements or additions thereto. And in case of any default being made in the payment of the aforesaid mortgage debt, principal or interest, in whole or in part, at the time or times limited and mentioned for the payment of the sum as aforesaid, or in case of any default being made in any covenant or conditions of this mortgage, then the whole mortgage debt hereby intended to be secured shall be deemed due and payable, and sale of said mortgaged property may be made by the trustee or trustees named in such decree as may be passed, as aforesaid, for the sale of said property, or upon any such default, as aforesaid, a sale may be made by the said party of the second part, his executors, administrators or assigns, or by George H. Leimkuhler, their duly constituted attorney or agent, under article 66. §§ 6 to 10, inclusive, of the Maryland Code (1904) Public General Laws, or under any other general or local laws of the state of Maryland relating to mortgages. And upon any sale of said property, under the powers hereby granted, the proceeds shall be applied as follows, to wit: First, to the payment of all expenses incident to said sale, including a commission to the party making sale of said property equal to the commission usually allowed trustees for making sale of similar property by virtue of a decree of a court having equity jurisdiction in the state of Maryland, and a reasonable attorney's fee to the attorney instituting or conducting the foreclosure proceedings; second, to the extinguishment of all claims of the party of the second part, his executors, administrators, or assigns, hereunder, whether the same shall have then matured or not; and, third, the balance, if any, to the said parties of the first part, their executors, administrators, or assigns." This mortgage was duly recorded. At the time of the execution of the mortgage, the mortgage settlement was made in the office of the appellee, who is an attorney, and, after deducting the amounts shown on the settlement sheet, the appellee gave to the appellant his check, payable to Effa A. Owens and Harry Hazlip, for $1,207.27. These deductions included amounts for the settlement of mortgages that were then upon the property, and also an item of $320 paid to A. R. Whiting as a fee for the loan then being made, and also an item of $48 for three months' interest in advance. These deductions further included various items incident to releasing the former mortgage, title fee, conveyancing, stamps or note, taxes, insurance, water rent, etc. On November 8, 1923, the appellee, through his attorney, George H. Leimkuhler, filed a petition in circuit court No. 2 of Baltimore city, praying that a decree might be passed for the sale of said property in accordance with the terms of said mortgage, at the same time filing the mortgage as an exhibit. On the same day the judge then sitting in said court passed the following de cree: "The petition and exhibit in the above cause having been submitted, the proceedings therein were by the court read and considered. "It is thereupon, this 8th day of November, in the year 1923, by the circuit court No. 2 of Baltimore city, adjudged, ordered, and decreed that the mortgaged property in the proceedings mentioned be sold, at or after any one of the periods limited. in the mortgage filed for the forfeiture of said mortgage, that George H. Leimkuhler be and he is hereby appointed trustee to make said sale, and that the course and manner of his proceedings shall be as follows: He shall first file with the clerk of this court a bond to the state of Maryland, executed by himself and a corporate surety or sureties, to be approved by this court, or by the clerk thereof, in the penalty of $6,400, conditioned for the faithful performance of the trust reposed in him by this decree, or to be reposed in him by any future decree or order in the premises. He shall then proceed to make the said sale, having given at least three weeks' notice by advertisement, inserted in such daily newspaper or newspapers published in the city of Baltimore as he shall think proper, of the time, place, manner, and terms of sale, which shall be, one third, cash, the balance in six and twelve months, or all cash, as the purchaser may elect, the credit payment to bear interest from the day of sale, and to be secured by the note or notes of the purchaser or purchasers, indorsed to the satisfaction of the said trustee; and as soon as may be convenient after any such sale or sales the said trustee shall return to this court a full and particular account of his proceedings relative to such sale, with an affidavit annexed of the truth thereof, and of the fairness of said sale; and on obtaining the court's ratification of the sale, and on the payment of the whole purchase money (and not before). |