Brown v. Gilmor's Exc'rs, 8 Md. 322

Brown v. Gilmor's Exc'rs

8 Md. 322 | Md. | 1855

Mason, J.,

delivered the opinion of this court.

On the 28th of October 1853, Jonathan Meredith and John Spear Nichols, Esq’rs., trustees, under a decree of the High Court of Chancery, in the case of Gilmor’s Executors vs. Briens Executors, & others, offered at public sale on the *325premises, in Washington county, amongst other property, a tract of land described in the advertisement thereof, “designated on the plat as Che Summer-House Farm,’ containing about six hundred and eighteen acres, and improved by a dwelling house and other buildings.” William Brown, the present appellant, became the purchaser thereof, at $10 per acre.

The sale, with others made at the same time, was reported to the Hight Court of Chancery, and on the 6th of February 1854., that court passed the usual provisional order for the ratification of the sale, unless cause should be shown to the contrary, mi or before the 6th day of April 1854.

On the 8th of March 1854, an order was passed by the chancellor, on the application of the present appellees, for the removal of the cause from the High Court of Chancery to the Superior Court for the city of Baltimore; and it is agreed between the counsel in this cause, although the record does not disclose the fact, that the papers in the said cause were not transmitted to the Superior Court until the 8th of April 1854, when the cause was first docketed in that court.

On the 12th day of April 1854, four days after the actual transmission of the papers in the cause, the sale to Brown was finally ratified by the Superior Court.

On the 12th of May 1854, the appellant filed his petition in the Superior Court, setting forth a number of reasons why the sale should be set aside and himself released from the obligation of complying therewith, and concludes with the prayer, that the final order of ratification might be opened,, that the trustees answer the petition, See. The petition further alleges, and it is not denied, that on the day after the order for the removal of the cause was passed, and while the papers were still in the chancery court, the appellant applied to the register to receive objections to the ratification of the sale, but the register refused to receive or file his petition.

The trustees answered the petition, and proof was taken in support of its allegations. Upon final hearing the court below dismissed the petition, from which decree this appeal was taken.

Under the 4th art. and 23rd sec. of the constitution, the *326Court of Chancery ceased to exist on the 10th day of March 1854. The same section provides, “that no new business shall originate in said court after the ratification of the constitution,” which was on the first Wednesday of June 1851; and that the legislature should provide for the removal of undisposed of cases to the counties and city of Baltimore, “in such manner and under such regulations as may be deemed necessary and proper.”

In pursuance of this last provision, the legislature passed the act of 1853, ch. 123. It was conceded by the counsel upon both sides, that the order of the chancellor of the 8th of March, providing for the removal of the cause to the Superior Court, was in strict compliance with the act of Assembly; and this court is of opinion, that the act itself was a legitimate exercise by the legislature of the power conferred by the constitution.

The case thus made presents two questions for this court to determine: the first is, whether the ratification of the sale was final and conclusive, in view of the circumstances under which it was made ? and if not, then secondly, whether the appellant has made such a case upon his petition and proof as to entitle him to the relief prayed?

Public policy and justice to parties interested require, that the ratification of judicial sales by courts having jurisdiction' over the same should be final and conclusive, unless irregularly made by the court, or unless the purchaser was prevented by misrepresentation, surprise or fraud, from making his objection to the ratification in due time; and it must further appear, that such misrepresentation, surprise or fraud, resulted from some act or conduct upon the part of the trustees, or on the part of those interested in the proceedings.

The conclusiveness of this order of ratification is first assailed, upon the ground, that the conditional or provisional order, passed on the 6th of February, was irregular, because it fixed a period for the final ratification, (viz., 6th of April,) beyond that at which, under the constitution, the existence of the Court of Chancery was to terminate.

This objection is not tenable. The passage of this order was not originating new business, but the mere continuation *327of an old proceeding. The jurisdiction of the Court of Chancery to pass such orders in pending cases was never suspended until the expiration of the existence of the court, and then its jurisdiction passed to, and continued in, the court to which the case was removed, as if no removal had taken place. Therefore, from the time of the passage of the order of ratification nisi until the order passed for the removal of the cause, to the Superior Court, the proper place for filing objections to the sale would have been in the chancery court: after that time, the objections should have been filed in the ¡Superior Court, which court received the case, and all its pending or unexecuted orders, in the same condition in which they were when the removal was ordered. For the purpose of giving the Superior Court complete control over the case, it was not necessary that the papers should have been actually transmitted from the one court to the other. The order for the removal transferred the jurisdiction, and from that moment, in legal contemplation, the case was in the Superior Court. If this were not the true view of the subject, the proceedings might be suspended for an indefinite time between the two courts, a condition of things never contemplated by the constitution and laws. Besides, it is to be remembered, that the papers were actually in the Superior Court four days before the final ratification was made.

Nor had the register in chancery, after the order for removing the case had passed, any power to receive any paper to be filed in the cause, and therefore he was right in refusing to receive or file the appellant’s petition.

Unless, therefore, there was some other cause which prevented the purchaser from making his objections to the ratification of the sale within the time limited by the order nisi, such as misrepresentation, surprise, or fraud, on the part of the trustees or other parties interested, the ratification by the Superior Court of Baltimore must be regarded as final and conclusive. No such cause or reason has been urged, nor can we discover any ground for any such allegation.

The view thus expressed dispenses with the necessity of considering the second question, namely, whether the appel*328Iant has made such a case, by his petition and proof, as calls for the interposition of this court. However meritorious his grounds of objection to the sale may be, having suffered the time fixed by the court to elapse within which those objections were to be presented, he cannot now open a proceeding which, by his own laches, has been suffered to ripen into a final and conclusive decree.

Decree affirmed, with costs.