56 Md. 407 | Md. | 1881
delivered the opinion of the Court.
It appears from the proceedings in this cause that the furniture and other personal property in what is known as the Highland Park Hotel, was sold by the appellees to Charles H. Brundige, for the sum of twenty thousand dollars, and that the sale was ratified by the Circuit Court of Baltimore City. The purchaser having made default in executing notes for the payment of the purchase money, died, and the appellant took out letters of administration upon his personal estate. She having failed to meet the payments, a petition was filed in the Circuit Court praying the passage of an order for a re-sale of said personal property; and upon this petition an order was passed requiring the appellant to bring into Court the balance of the purchase money, five thousand dollars thereof having been paid by Brundige during his life-time, by a day' named in the order, or to show cause to the contrary. A copy of this order was served on Samuel H. Taggart, the solicitor of record of the appellant, and no cause having been shown by her, on the 23rd day of March, 1876, the time for showing cause was extended to the 17th day of April of the same year. No cause having been shown, the Court passed an order dated 16th day of May, 1876, directing the appellees to sell, at the risk of the appellant, the furniture and other personal property in said hotel, for the payment of the purchase money thereof with interest and costs, in the manner directed by the original orders in the case, for one-third cash, and the balance in six, twelve, eighteen and twenty-four months after date with interest thereon. On the same. day the appellees reported a sale of said property, at private sale, to Erancis P. Stevens, for $12,000, and in their report stated the reasons inducing them to make said sale, and
The appellant afterwards filed a paper in the cause, stating that owing to the peculiar nature of the property, and that Francis P. Stevens, the purchaser, took immediate possession thereof, and that Charles H. Brundige never took possession of it, it was impossible for her to show any other or further cause, why the sale should not
Upon the filing of this paper, the Circuit Court passed an order dismissing her petition, and from said order this appeal was taken.
It appears from the record, that Samuel H. Taggart was counsel for the appellant, and that the petition and the order requiring the appellant to bring the balance of the purchase money into Court was served upon him, and as no answer to said petition was filed, no cause to the contrary shown, nor the money brought into Court, as • required by the Court’s order, the subsequent order of the Court directing the furniture, &c., to be re-sold at the appellant’s risk, was regular and proper. But it was contended that, as no advertisement of the re-sale was made, as required by the Court’s order, and as there was no publication of an order of ratification nisi, the rights of the appellant could not be affected by such sale and its ratification, and that they amounted to a rescission of the former sale to Brundige, and that the appellant thereby became entitled to have thé cash payment of five thousand dollars,'made by Brundige, refunded. The proof shows the appellant’s counsel was consulted by the appellees, as to the propriety of a private sale to Stevens, and that while he declined to enter into a written consent to the sale to him, for the sum of twelve thousand dollars offered by Stevens, he approved of the private sale to him for the sum offered, and stated that no objection would be made to such sale. It was accordingly made and reported to the Court, the report stating the Substance of the interview between the appellees and Mr. Taggart, as well as the reasons why in their judgment such sale would be most advantageous and beneficial to the estate, and the sale was ratified finally on the same day on which it was reported. The report of sale was made under oath, and the facts therein must, in the absence of proof to the contrary, be
But it was contended, that as ' there was no decree of forfeiture of the cash payment of five thousand dollars, made by Brundige, the first purchaser, the appellant is entitled to recover hack that sum from the receivers, inasmuch as she had no notice that the re-sale was to he at her risk. We cannot perceive, under the peculiar circumstances of this case, what benefit the appellant could have derived from a notice of the re-sale, and that it would be at her risk, as she herself has shown, that she had no means whatever, with which either to pay the purchase money due, or to purchase the property at the re-sale. In this case, the Circuit Court has followed the uniform
But it was contended, that as the appellees had derived benefits to themselves by' requiring the purchaser of the personal property to open the Highland Park Hotel within a certain time, and to keep it open for a stipulated time, by which the other real estate might be more readily brought into market, the sale was void. It appears that the price agreed to be paid for the furniture, was its fair and reasonable value, and that while the keeping open the hotel, might result in bringing the other real estate more readily into the market, and thus incidentally he a. benefit to it, it does not appear to have formed any part of the consideration for the contract of sale. On the contrary, the purchaser stipulated as one of the conditions of the purchase, that he should obtain immediate possession of the hotel, which he had previously purchased, and the sale of which had not then been ratified, to which condition the appellees agreed, upon his compliance with the terms of sale. The appellees did not impose upon the purchaser, as a condition of the sale of the personal property, that he should open the hotel within a certain time and keep it open, but it was an inducement offered by him to the appellees, for an immediate delivery of possession of the hotel to him, with permission to him to repair
But it has been objected in this Court, that the order of the Court below, required the appellant to bring the whole balance of the purchase money into Court, when, by the terms of the sale, only a part of it was then due. There would be some force in this objection, had the purchaser Brundige, or the appellant, complied with the terms of sale, by giving notes for the credit payments, endorsed to the satisfaction of the receivers. But this was never done; and when the appellant was called upon by the order of the' Court, to show cause, why she should not bring into Court, the balance of purchase money due, no notice was taken of it by the appellant, or her counsel, although notice of said order was duly served upon him, together with a copy of the petition on which it was passed.
Binding no error in the order appealed from, the same will be affirmed.
Order affirmed.