46 Md. 636 | Md. | 1877
delivered the opinion of the Court.
This appeal is taken from an order of the Circuit Court for Caroline County, as a Court of Equity, overruling an exception of the appellant to an auditor’s account, and ratifying the account to the exclusion of the appellant’s claim.
The bill was filed for the sale of certain real estate for the purpose of partition among the parties to the cause. Foster Green and James W. Green, together with several others, were made defendants. Foster Green, by his answer, denied all right of the complainants in the land, and claimed exclusive right thereto by adverse possession. James W. Green, a younger brother of Foster Green, by his answer, stated that he was ignorant of the facts charged in the bill, being, at the time of their occurrence, an infant; and that if he ever had any share in the real estate mentioned, he was fully satisfied that it had been more than consumed and exhausted in his board, maintenance, and education, furnished by his brother, Foster Green; and that he set up no claim of right to or interest in the land.
Proof was taken, and the case submitted to the Court, and in March, 1872, a decree was passed for the'sale of the land, for the purpose of partition among the parties, and that Foster Green should account for rents and profits. In the written opinion of the Court, in reference to which by express terms the decree was passed, it was declared that Foster Green “should be allowed nothing for the support
But, notwithstanding there was no assignment of the interest to Foster Green, the appellant was not in a position to insist that the distribution to James W. Green should be awarded to her as assignee. She had not made herself properly a party to the proceedings, and had established no claim to the fund.
The only person complaining of the order appealed from is the appellant, and if the assignment to her he not established, the order ratifying the auditor’s account should stand. And though the appellant has failed properly to present her claim under the assignment, (supposing it to be susceptible of proof,) and has furnished no competent proof upon the subject, yet there is enough in the record, of which we can take notice, to justify this Court in remanding the cause, without reversing or affirming the order appealed from, for further proceedings, under the
Cause remanded for further proceedings.