54 Md. 555 | Md. | 1880
delivered the opinion of the Court.
In December 1810, William C. Dent, of Baltimore County, died, seized and possessed of a large real and personal estate, leaving a last will, by which, among other devises and bequests, he devised to the youngest son of Alfred J. Gent, and the youngest son of William Gent, who may be living at the time of the death of testator’s daughter, Mary Ann Wilderson, as tenants in common in fee, a certain farm known as part of “ Lyon’s Den.” Alfred J. Dent was made residuary devisee and legatee, and executor of the will. Among the property which passed to him under the residuary clause, was the farm known as “ Lyon’s Den,” during the life of Mrs. Wilder-son. She died in May 1818, leaving then surviving her Oharles Morris Gent, youngest son of Alfred J., and William, Thomas Gent, the appellee, youngest son of William
It appears that during the life-time of Mrs. Wilderson, a creditors’ bill was filed by Samuel Shaffer, a creditor of William C. Gent, the deceased testator, alleging that his personal estate was insufficient to pay his debts, and praying that a decree might be passed for the sale of his real estate, or as much thereof as might be necessary for the purpose of paying his debts.
The residuary devise to Alfred J. Gent, and the devise to him for life of a farm, mentioned in the last item of the will, and of all debts due the testator,' were made upon condition, that Alfred J. should pay the legacies bequeathed by the will to be paid by him; and also all just debts due by the testator, and all his funeral charges and expenses.
It was alleged in the bill that Alfred J. had been adjudicated a bankrupt, by the District Court of the United 'States for the District of Maryland, that Moses Merryman and David G. McIntosh had been chosen as his assignees in bankruptcy, and all his estate, real and personal, of ■which he was possessed on the 21st day of April 1875, had been assigned to his said assignees, who were made parties defendant.
It appears from the proceedings that William Thomas •Gent, the appellee, who was then living, was not made •a party in the cause.
The administration accounts passed by the executor, and other proceedings in the Orphans’ Court were filed in the case; and an agreement was filed, signed by the ■complainants’ solicitor, and the solicitor representing certain of the defendants, “ that the case be submitted for a ■decree with the understanding that no more land be
Upon the hearing of these exceptions, the Circuit Court overruled them and passed an order finally ratifying the sale. No appeal was taken from this order. The purchaser paid the whole purchase money, and a deed was-made to him by the trustees conveying the land, according to the terms of the decree “free, clear and discharged from all claim of the parties to the cause, complainants- and defendants and those claiming by, from, or under them, or either of them.”
It appears that after the payment of costs, expenses, &c., and the claims of creditors, there remained of the proceeds of sale in the hands of the trustees, a balance of' ^1688.23, credited to the youngest sons of'Alfred J. and William Gent, subject to a life estate of'Mrs. Wilderson in the same, and upon her death, one-half thereof was. paid to the guardian of Charles Morris Cent, the youngest son of Alfred J. Gent. But the appellee, By his next friend declined to receive any part of the same; and instituted an action of ejectment against the appellant, to recover a moiety of the land.
The appellant then filed his bill of complaint, praying-for an injunction to restrain and prevent the appellee from prosecuting his said action of ejectment. An injunction was issued as prayed, and upon the hearing on bill,,
It appears from the supplementary agreement of the-solicitors, filed since the cause was submitted in this Court, that the present appeal is from the order or decree of the Circuit Court passed on the 14th day of October 1879, dissolving the injunction, and dismissing the bill of complaint.
It seems to us very clear that there is no ground stated in the bill entitling the appellant to the equitable relief prayed. It does not show any defence to the suit, which cannot be availed of in the case at law. The question as to the operation and effect of the proceedings in the case-of Shaffer vs. Gent, and of the decree therein passed and the sale to the appellant, in divesting the title of the appellee, if they can have such operation or effect, would necessarily arise in the ejectment suit, and can be properly decided therein.
The bill does not present a case for relief by injunction.
Among the exceptions filed by the appellant to the-ratification of the sale, there were several which alleged irregularities in the chancery proceedings, prior to the decree, among them the want of necessary and proper-parties, and the failure to make necessary parties defendant. Those exceptions were submitted without any proof being offered, and when the decision thereon was rendered adverse to the appellant, instead of appealing he acquiesced therein. He cannot be relieved of the consequences of his laches by the present proceeding.
The appellee had a substantial interest in the property sold under the decree. Under the will of William C. Gent he had a vested estate in fee in one moiety of the-land, subject only to the estate for the life of Mrs. Wilder-son, which was devised to Alfred J. Gent by the residuary clause.
What effect had the decree passed in Shaffer vs. Gent, upon the rights of the appellee ? This is the material
It is also well settled that the clause in decrees directing the trustee to sell and convey property free from the claim of parties to the suit, and those claiming under them, do not affect the interest of one who is not a party to the proceeding. Walter & Wife vs. Riehl, 38 Md., 211; Downin vs. Sprecher, 35 Md., 483. In this case the appellee was not a party to the chancery proceeding. In order to affect his interest, or bind him by the decree it was necessary that process should he served upon him; without this' the Court had not jurisdiction over him, and could not pass a decree affecting his rights. “ The heir has the same uncontrolled discretion in resisting the payment of claims against the realty, that the executor or administrator has in regard to the personalty.” Collinson vs. Owens, 6 G. & J., 4. And the same right belongs to the devisee as to the heir in this respect.
The suits of creditors form no exception to the rule that requires all parties in interest who are in esse to be brought into the case. Nor is there any ground for asserting that there was any representation of the appellee or cf his title and estate in the chancery suit. He and the youngest son of Alfred J. Gent were v.ested with the first •estate of inheritance. As correctly said in the appellee’s briefj “ Alfred, the executor and life tenant was desirous to have the debts of the estate paid, his youngest son, an infant, without means or ability to employ counsel, entirely unable to care for his own interests, and all the other parties to the suit were creditors or devisees. There was no party to the suit whose interests were not adverse to those cf the appellee.”
In such case the doctrine of representation does not •apply, which is always founded on the fact that persons
As was said in Downin vs. Sprecher, 35 Md., 483, the sale under the decree passed only the title of the parties to the cause, and the purchaser took their interest only. To all such cases the doctrine of caveat emptor applies. 7 Md., 342; 19 Md., 391.
Without passing upon the other questions presented by the record, and argued by counsel in their briefs, we are of opinion for the reasons stated that the decree of the ■Circuit Court was correct; and the same will be affirmed.
Decree affirmed.