Anderson v. Cecil

86 Md. 490 | Md. | 1897

Page, J.,

delivered the opinion of the Court.

The complainants in their bill allege, that by proceedings “ in Chancery cause entitled Preston R. Anderson et al v. Wm.J. Anderson et al.—being No. 732 Chancery,” referred to and prayed to be taken as a part of their bill, the trustees, John B. and E. H. Brown, sold unto the appellee certain real estate ; that the sale was reported to and ratified by the Court, but that a large part of the purchase money is still unpaid; that on the petition of the trustees the Court ordered a resale at the risk of the purchaser, but they have never resold the property ; that the appellee, who is insolvent, has been permitted to continue in possession up to the present time; that the real estate sold is an inadequate security for the purchaser’s debt, and that of the sureties for the appellee “ for his compliance with the terms of sale, William B. Shawn is dead, and the complainant believes and is informed, he is insolvent.” .The appellants further charge, “ that on said farm at the present, there are valuable crops,” of wheat and corn, “ which if secured and applied to the payment of the ‘ complainants ’ claim, would ‘ tend to secure ’ the complainants in a small measure at least and that if they be not so applied the complainant will be unable to secure anything in excess of the market value of the land, and that the only way in which this can be done, is by the appointment of a receiver and the granting of an injunction to restrain the appellee and his agents and servants from interfering with the receiver. The prayer of the bill is for a receiver and injunction and general relief. Appended to the bill there is an affidavit of one of the complainants, to the effect that the matters set forth in the bill are true “to the best of his knowledge and belief.” It does not appear there were any exhibits filed with the bill. There is set out in the record what purports to be a copy of a part of the proceedings in the Chancery case, No. 732; but there is nothing to show it was filed with the bill as an exhibit, or was before the Court when the decree appealed from was passed. The Court refused to appoint a receiver and dismissed the bill, and this action forms the subject of this appeal.

It must be noted, that in the record before us the nature and character of the complainants’ interest is nowhere stated. In the last paragraph of the bill it is alleged, that unless the crops are applied to the payment of the purchase money due to the trustees, there will be no other way to secure anything towards payment of the large sum due to the complainants. But on what account or from whom the indebtedness is due, can only be conjectured. Even if the proceedings in No. 732, as set forth in the record, be considered, the Court is left no wiser than it was before. It is true some statements were made by the counsel for the appellant tending to explain the interest of the complainants ; but this Court cannot look outside the record for the facts of the case. In this particular the bill is fatally defective ; it being an elementary principle, that to entitle a party “to sustain a bill he must show an interest in the subject of the suit, or a right to the thing demanded, and proper title to institute the suit concerning it.” Sellman v. Sellman, 63 Md. 522.

But apart from this we cannot regard any of the proceedr ings in No. 732 Chancery as having been before the learned Judge who passed the decree below, or properly in the case before this Court. As we have said, there is nothing in the record to show that these proceedings were presented to the Court, and it is clearly stated in the affidavit of the Clerk having charge of the Chancery proceedings in the Circuit Court of Queen Anne’s County, that the bill was “the only paper filed or ordered to be filed in the case, and that no exhibits accompanied the same,” and that the “report of sales and other proceedings from No. 732 were incorporated in the record, after appeal,”, by order of counsel, “ and form no part of the case except by reference in the bill.” If, as contended at the argument, the complainants’ right to the relief prayed for in the bill rested upon anything contained in those proceedings, they should have exhibited with the bill, such evidence of their claim as would satisfy the Court of the correctness of their contention. If the facts rest in record or depend upon written evidence, such documentary evidence of their truth, as office copies, or short copies and docket entries are required. Myers v. Amey, 21 Md. 306.

(Decided December 2nd, 1897).

The fact that the proceedings referred to may be in the same Court will not relieve the complainants of this obligation. “ A Court will take notice of its own records, but cannot travel for this purpose out of the records relating to the particular case it cannot take notice of the proceedings in another case, “ unless such proceedings are put in evidence.” 2 Wharton on Evidence, sec. 326, and authorities there cited.

It is not charged in the bill that the appellee is acting fraudulently or is wasting the property. The averments substantially amount to no more than that the trustees have not resold the property, and that the appellant, who is insolvent, remains in possession of the property, receiving the profits thereof, which will be lost to the appellants unless the Court interfere. Whether such facts would warrant the appointment of a receiver, after notice to the defendant, we do not deem it necessary to determine. It is clear the necessity shown is not sufficiently stringent to authorize such appointment, without first having heard the defendant in response to the application. In Frostburg Building Asso. v. Stark, 47 Md. 345, this Court, referring to the subject, said, “if it be practicable the defendant ought to have an opportunity to put in his answer, and if this cannot be done it is the duty of the complainant, not only to show that he has an interest in the property in dispute, but that the interference of the Court is absolutely necessary to preserve it from loss and injury.”

Decree affirmed.