76 Md. 304 | Md. | 1892
delivered the opinion of the Court.
Jacob P., George W. and Charles R. Albert filed a hill in equity against Clara Hamilton, widow, executrix, and residuary legatee of William T. Hamilton, deceased. The allegations were that the decedent, in his life-time, by false and fraudulent representations, procured a mortgage of certain land from them, and from their mother, and from their brothers, Frederick and Robert, and their sister, Anna L. Hammaker, and her husband. The charge is set forth with much particularity of circumstance and detail. It is further alleged ^that, under proceedings by virtue of the mortgage, the land was sold by the mortgagee, and a portion of it purchased by him; and that the sales were reported by him to the Circuit Court for Washington County, sitting as a Court of equity, in a cause designated as No. 3688; and that exceptions were filed to the ratification of the sales by the mother of the complainants and their brothers, Frederick and Robert, and their sister, Anna L. Hammaker, and her husband; that afterwards, in June, 1886, the said mother and brothers of the complainants and their sister and her husband, filed a bill
The Court, sitting in equity, had jurisdiction of the questions arising under the proceedings to enforce the mortgage. By the ninth section of Article 66, of the Code, it is enacted that it should have full power to hear and determine any objections against the sale of the land which might be filed by any person interested in the property, and that it might confirm or set aside the sale; and by the eleventh section it is provided that when the sale is confirmed by the Court, it shall pass all title which the mortgagors had at the time of the recording of the mortgage. Until the sale is reported by the mortgagee all the proceedings are ex parte; but when the report is made, an opportunity is afforded to all parties interested to make their objections to the sale. As the ratification of the sale will pass all the title of the mortgagors, it must follow that they have a right in objecting to the ratification, to show, if they can, that their title ought not to pass. If this were not the case, their title would, under the terms of the Act, be taken from them without a hearing. If the mortgage under which lands are sold is void for any cause, undoubtedly this is a most sufficient reason why the sale should not be ratified which takes away the title of the mortgagor. The statute says, that the Court “shall have full power to bear and determine any objections which may be filed against the sale;” not merely objections to the regularity of the mode in which the sale was conducted. The object was to enable mortgagors and others to prevent the ratification of a sale which would unjustly deprive them of
But, nevertheless, after the ratification of the sale all of the mortgagors (except these complainants and the wife of one of them,) filed a hill in equity, (No. 3752,) charging that the mortgage was obtained on false and fraudulent representations, and was null and void, and praying that it might be vacated. After a full hearing, the Court dismissed the bill, with costs: and now after the death of the mortgagee this suit is brought, and the attempt is made to sustain the charges on the testimony of the living parties to the cause of action. . Their evidence is, of course, incompetent; but independently of this consideration, it is a great hardship to the representative of the deceased mortgagee to be subjected to a repetition of this litigation. These complainants were proper and necessary parties to suit No. 3152, inasmuch as it sought the rescission of a deed of which they were co-makers. And if the objection had been made by the defendant, the Court would have required that they should be made parties on penalty of dismissal of the bill of complaint. It is contrary to the policy of the law to allow the same question to be separately litigated by every person interested in it. Suppose a suit had been brought by one of these mortgagors alone for the annulment of this mortgage, and when that failed, suits had been brought by each one of them successively, would it be contended that they ought to he entertained by the Courts ? These complainants knew of the pendency of the former suit; they ought to have been made parties to it, and they would have been made parties on their own petition. They, by their own neglect or wilful refusal,
For the reasons which we have stated, the decree in this case must be affirmed. But inasmuch as the bill of complaint makes most serious charges against the character of an eminent and highly honored citizen, now deceased, who in his life-time always'sustained an unblemished reputation, we deem it our duty to say that they are entirely refuted by the evidence, even if the incompetent testimony is considered which was offered in behalf of the complainants.
Decree affirmed,, with costs.