Benson v. Yellott

| Md. | Jun 7, 1892

Fowler, J.,

delivered the opinioh of the Court.

Mrs. Roberta T. Brooke, a widow, died in 1881 leaving a will duly executed, devising certain real estate in Baltimore County to trustees, “in trust and with authority to sell and convey the same, as soon .as the price or sum of two hundred dollars per acre can be obtained therefor, or as soon thereafter, not exceeding one year, as, in the' judgment of such trustees it shall be deemed expedient; and the proceeds arising from such sale to invest in some safe security."

The testatrix directed that the income from such investment should be paid to her brother S. Decatur Spence, during his life, and after his death, said income was to go to certain other persons.

On the 3rd of April, 1891, the bill in this case was filed in the Circuit Court for Baltimore County by Stephen D. Spence and others against N. Carroll Spence and others for a sale of the land above mentioned. Answers were duly filed by all the, parties in being having any interest whatever in said land; and it appears from the hill, answers, and agreed statement of facts that Mrs. Brooke, the testatrix, died without issue in August 1881; that she left a will duly executed to pass real estate, which was duly probated. The land in question was rough and unimproved, and by reason of its roughness and isolated position, it was not valuable. For years it had yielded no income.

It appears that in 1882 a bill was filed in the Circuit Court for Baltimore County, and a decree was passed for the sale of said land, Carroll Spence having been named in said decree as trustee. Having qualified as trustee, Mr. Spence made every effort to sell, hut the best offer he secured was less than twenty-five dollars per acre.

In 1887 he resigned as trustee, having been unable to make a sale. Subsequent to the resignation of the trustee, some of the land was sold for taxes, and other portions were about to be sold for the same purpose, when the bill was filed on the 3rd of April, 1891. It is conceded that, in order to make the property of any value to those entitled to it, a sale is necessary, and for the interest, benefit, and advantage of all the parties interested. There was no prospect of being able to get $200 per acre for the land, when the hill was filed nor for years to come; and upon the bill, answers, and evidence a decree was passed for the sale of the land in question, and to set aside and vacate the hill, proceedings and decree of 1882.

Acting under the decree of 1891, the trustees therein named sold the land to the appellants Benson and Knecht for seventy dollars per acre, agreeing to give the purchasers a marketable title. ' The appellants excepted to the sale, — First, because the proper parties were not before the Court; second, because by the terms of the will of Mrs. Brooke the property was to be sold for a price not less than $200 per acre; and third, because the decree of 1882 was not regularly and validly vacated and set aside by the decree of 1891.

The second and third exceptions go to the regularity and- validity of the decree under which the sale excepted to was made to the appellants. But it is well settled that no such question can be raised on an appeal from an order everruling exceptions to and ratifying a sale. Newbold vs. Schlens and Wilkens, Trustees, 66 Md., 590.

For if the Court passing the decree has jurisdiction of the parties in interest and of the subject-matter of the suit, its decree will be binding upon all the parties concerned, those in esse as well as those unborn, notwithstanding any irregularity in the proceedings, until such decree be reversed or annulled. But whether there be such irregularities or errors in the decree under which the appellants purchased, it is not material here to inquire, for as was said in Newbold vs. Schlens and Wilkens, ante: “The principle is now too firmly settled to he questioned, that even if the decree could be reversed for errors or irregularities, whether in respect to the evidence or otherwise, "provided the Court had acquired jurisdiction to pass the decree, a purchaser in good faith under the decree, while it was subsisting and binding the parties thereto, will not be affected by such reversed.”

The purchaser “is bound, however, at his peril, to see that all proper parties to be bound were before the Court, and that he does not take a title that may be impeached aliunde. ’’

(Decided 7th June, 1892.)

But there can he no question here as to proper parties, for it is conceded that all parties in esse having any interest in the land are before the Court, and it therefore follows that those not in esse are also bound by the decree. Art. 16, sec. 198, of the Code; Newbold vs. Schlens and Wilkens, ante.

Being of opinion, therefore, that the appellants, as purchasers under the decree of 1891, will take a good and marketable title, we think their exceptions were properly overruled.

Order affirmed.