| Md. | May 12, 1865
Lead Opinion
after stating the case, (ante p, 87, et seg.,) delivered the following opinion, concurring in part in the opinion of the majority of the court, and in part dissenting therefrom:
The principles which govern Courts of Equity, in the consideration of trustees’ sales, have been so recently and frequently announced, it is scarcely necessary to repeat them. In Bolgiano vs. Cooke, 19 Md. Rep., 392, such sales are declared to be subject to all the principles of equity applicable to judicial sales. Before the ratification of a sale, made by authority of a Court of Equity, all objections within these limits are open for consideration. The sale will be set aside upon proof of error, mistake, misunderstanding or misrepresentation, as to the terms or manner of sale. It must appear to be in all respects fair and proper, or it cannot receive the sanction of the Court. Tomlinson vs. McKaig, 5 G., 277. When a Court can see injustice will be inflicted by the ratification of a sale upon a party not in default, the sale should not be rati-
In the consideration of this point, we forbear any inquiry into the regularity of the proceedings prior to the decree. Assuming those to be in all respects legal, we confine ourselves to the testimony touching the sale.
The property sold was a remainder in fee, expectant upon an estate for life. The purchaser failed to comply with the terms of sale for nearly four years; declared he would not take the land unless the title was guaranteed; waited until the tenant for life died, and its value was enhanced more than four-fold, leaving it exposed, in the meantime, to damage or destruction by fire, flood or inevitable accident, at the risk of the vendor. After the death of the tenant for life, without apprising the trustee of that event, the purchaser paid the purchase money, and claimed the benefit of his bid.
There is nothing in circumstances like these, requiring this Court to confirm the inchoate contract between its agent, the trustee, and the supposed purchaser. The parties in interest might well have inferred, from the laches of the purchaser, his subsequent absence from the State, and non-compliance with the terms, that the sale was abandoned. It would be gross injustice to them, to allow him, after the condition of the property was entirely changed, and its value quadrupled, to appropriate the profits resulting from advanced prices and altered circumstances, without binding himself to the bargain or incurring any of its risks. For these reasons, we think the order setting aside the sale should be affirmed.
The second question presented by the record is, whether there is ground for a bill of review, and the rescission of the decree in the original case, for the sale of the premises ?
The appellant insists there is nothing on the face of the proceedings that is irregular, unless the praying for the sale or partition of a remainder be error, which estate, he contends, is embraced by the Act of 1185, ch. 72, and other
The appellee does not rely on the want of power in the' Court, to decree a sale of such interests as are provided for under the Act of 1785, ch. 172, but on the irregularity of the proceedings in the case made, which brought it within the provisions of the Act to direct descents.
The decree appealed from is based, by the learned Judge, on the decisions of this Court, in the cases of Chaney vs. Tipton, 11 G. & J.; and Tomlinson vs. McKaig, 5 G., 258. In the former, this Court said: “ The bill is filed by one of the heirs claiming a sale, upon the ground, that the land is not capable of division, and resisted for the reason, amongst others, that it will admit of division. We thifik that such cases are particularly provided for by the Acts of Assembly regulating, descents, and that the proceedings should have conformed to those Acts. The rights of election, and preference secured to certain heirs by the Statutes referred to, must be regarded as intrinsically valuable. They become vested by the death of the intestate, and may be passed to a grantee. This, we hold, is utterly inconsistent with the right now claimed for another of the heirs, to file a bill for sale or partition in a mode which disregards the provisions of the descent laws, and places all the heirs in the same condition, in respect to priority of choice.” 11G. & J., 255.
The original hill in this case charges, that the complainants are seized in iee-simple, jointly with the persons therein named, of the reversion of a parcel of land lying in said county; ***** that the said lands are incapable of division, and it would he advantageous to all parties con
In Tomlinson vs. McKaig, 5 Gill, 258, this Court said: “That a right exists on the part of the infant defendants to the original bill, to question its regularity and validity either by a bill of review or an original bill to vacate the same for fraud, cannot be doubted, and we think the Court below should have stayed the execution of the decree until an opportunity might be had of testing the validity of the
“The regularity of the proceedings, after the filing of the bill in the original case, has not been attempted to be vindicated. Not one of the steps demanded by the Act of 1820, ch. 191, have been taken; no order or decree for a commission was passed, of consequence, no judgment • of commissioners was had, or confirmation of such judgment; no privilege of election was extended to the beirs-at-law, without which the final decree of the Court could not have been, the legal exercise of jurisdiction. That such matters would have been the subject of a bill of review in an English Court of Chancery, if a decree had there been passed under such a law, could not be questioned. In that tribunal the proceedings in the cause are recited in the decree, and such errors would, therefore, have appeared on the face of the decree, and would have constituted errors which the Court would have noticed on a bill of review.
“In Birch vs. Scott, 1 G. & J., this Court announce the rule to be: A bill of review will only lie for errors apparent on the face of the decree, or for some now matter discovered since the decree. In thus saying, this Court but announce the English rule. They were not called upon to apply it to our peculiar practice in framing decrees. We can alone reap the beneficial fruits of the English rule by causing the bill of review to reach such proceedings in the cause as would, according to the English practice, appear on the face of the decree. In conformity with these views, the proceedings were remanded, that time might' be given to the adult defendants to file an original bill to set aside the decree for fraud, and to the infant defendants to file a bill of review for errors apparent on the face of the decree.
The defence set up in the case of Tomlinson vs. McKaig, was, that there were no allegations in the bill to bring it within the terms of the Act of 1185, ch. 12; and if such had been made, they were untrue in fact, and that the sale was procured by fraud.
They declare: “ That a formal application to the Court may be made by bill to the Court, as a Court of Equity, has been heretofore decided by this Court.” But they no where decide in that case, in my judgment, that proceedings may be instituted, under the Act of 1785, by persons .claiming as.heirs-at-law to an intestate, for the sale of the lands cast on them by descent, instead of proceeding by bill or petition, under the Act to direct descents.
In the case.before us, the petition for the bill of review sets forth, among other reasons, that one of the petitioners was a minor, who had come of age since the decree, and within nine months from the date of the petition; and because the estate belonged to the petitioners as heirs-at-law of Elisha Bull, who died intestate thereof, the petitioners were entitled to the benefit of the Act to direct descents, of which, by said decree, they are deprived. The bill of review repeats the same allegations, with the addition, that no valuation of said land was made by commissioners for that purpose appointed, nor was any opportunity given the complainants to take said lands, and pay to the other heirs their proportionate shares. These allegations are hot controverted, the most material are established by the record.
If does not appear from the report of the case of Mew-shaw vs. Mewshaw, that the parties claimed as heirs-at-law of a deceased person, however it may be inferred from the objections urged in support of the demurrer.
The late Chancellor, in his opinion, says: But this does not appear to me to be a bill for partition. It is a proceeding founded upon and authorized by the 7th section of the Act of 1831, ch. 311, which extends the provisions of the 12th section of the Act of 1785, ch. 72, to parties of full age, who have an interest or estate jointly or in common,
The proper subject of these acts was certainly estates acquired by purchase, and not by descent, and however indiscriminate practice may have confounded them, we could not, in the absence of express adjudications to the contrary from the highest authority, hold that at the mere pleasure of any complainant, he might so frame his bill in chancery, by adopting a set form of words, as to deprive heirs-at-law of their vested rights under the Acts to direct descents.
Conceiving that the original bill presented a case which brought it within the provisions of the Act to direct descents, which provisions were entirely disregarded in the subsequent stages of the cause, as was apparent from the face of the proceedings, I am of opinion the decree of the Circuit Court, rescinding the original decree for sale, should be affirmed.
Concurrence in Part
delivered the following opinion, also concurring in part in the opinion of the majority of the Court,, and in part dissenting therefrom:
My understanding of the cases of Tipton vs. Chaney, and Tomlinson vs. McKaig, is this: that the rights acquired by heirs-at-law, under the Act to direct descents, are intrinsically valuable, vested by the death of the intestate, and the subjects of grant; and that it is the duty of Courts of Equity, upon bills for sale or partition filed by some of the heirs against others, whenever, by the allegations of the hill or' otherwise, it is made to appear to them that the parties take by descent, and cannot agree upon a division of tbe estate, or that some of them are minors, to protect these rights and to conform the proceedings under the bill with the provisions of that Act. Where the bill contains these allegations, whatever other averments may accompany them, then to decree without complying with the provisions of that Act is error, and a hill of review will lie to correct it as an error apparent on the face of the proceedings. If the hill should
The case of Mewshaw vs. Mewshaw, 2 Md. Ch. Dec., 12, does not appear, from the report of it, except by inference, to have arisen in a case of intestacy. If, however, it was a case of that kind, and so presented in the bill and proceedings, I conceive, with great deference to the opinion of so great a jurist as Chancellor Johnson confessedly was, that he misapprehended the views of the appellate Court in Tomlinson vs. McKaig, and being the judgment of an inferior tribunal, it could not have the effect of overruling the decision of this Court more than once carefully and deliberately formed.
The proceeding in the case now under consideration arose under, and is to be governed by the law of this State, and the decisions thereunder, prior to the adoption of the Code. How far the provisions of the Code, upon the subject of partition, and the equitable powers of the Courts to decree in such cases, differ from those that existed before, is not now the subject of inquiry.
I concur with the other members of the Court, in the opinion and decree, that the sale made by the trustee should bo
I agree with the Chief Justice in the other branch of this case. I entertain the opinion that it is a case for a hill of review", upon the authorities I have already referred to. It is not necessary to advert to the evidence that was brought into the original cause by the mistake of the witness, and upon which the original decree was based. That would have constituted matter for consideration if the case had been one that would have been regularly conducted under the Act of 1*785, ch. 72.
delivered the opinion of the majority of the Court:
In the opinion of a majority of this Court, there was error in the decree of the Circuit Court, passed on the 6th day of August 1862, annulling and setting aside the original decree of the 3rd day of February 1849. . Tbe learned Judge of the Circuit Court placed his decision upon the cases of Chaney vs. Tipton, 11 G. & J., 255; s. c., 3 Gill, 327; and Tomlinson vs. McKaig, 5 Gill, 256. In those cases the proceedings were under the Act of 1820, ch. 191, (the Act to direct descents,) and in both it was held that the proceedings must conform to the provisions of the
In this case the original bill contained this averment, and we understand the language of the Court in Tomlinson vs. McKaig,. just cited, clearly to decide that in such case the-jurisdiction of the Court is exercised under, and the proceedings are regulated by, the provisions of the Act of 1185' and its supplements. The decision was so understood by the late learned Chancellor, and his decision in the case of Mewshaw vs. Mewshaw, 2 Md. Ch. Dec., 12, was made in conformity therewith.
The case of Mewshaw vs. Mewshaw, was decided in 1849, and we are not aware that ⅛ correctness has ever been impugned or questioned. The decisions of that learned jurist have always been held in the highest respect in this State. In his opinion, then delivered, he stated that “frequent decrees of such a character have been passed,” and we may add that many more have been passed since that decision was pronounced.
The question may, we think, be considered as concluded by what was said by the Chief Justice in Tomlinson vs. McKaig, and by the decision of the Chancellor in Mewshaw vs.
The proceedings in this case being instituted under and in conformity with the provisions of the Act of 1785, the Court had the jurisdiction and authority to pass the original decree, upon proof of the allegations of the bill, without pursuing the course prescribed by the Act of 1820, ch. 191. This Act and the Act of 1785, and its supplements, are not in pari materia; but are altogether distinct from each other, and the jurisdiction and proceedings under them, respectively, are wholly distinct and dissimilar.
A majority of this Court are also of opinion that the -bill of review ought not to be sustained upon any of the grounds
With reference to tbe order of tbe Circuit Court, setting aside the sale made to tbe appellant, we concur in tbe opinion expressed by tbe Chief Justice, and will sign a decree affirming that order, and remanding tbe cause. The costs of tbis appeal tó be paid by tbe apjiellant.
Affirmed in 'part, and reversed in part, and cause remanded.