41 Md. 419 | Md. | 1875
delivered the opinion of the Court.
The bill in this case was filed on the 27th of July, 1866, for the partition of “a tract of land, situated in Harford county, called ‘ Whitaker’s Chance,’ or by whatsoever other name or names the same may be known, containing sixty-five acres, more or less,” between William Bull, (the appellant,) and William H. Pyle, (the appellee,) being one of the tracts of land purchased by Pyle from the trustee, who had been appointed to make sale of the lands whereof a certain Bennett Bull died seized. On the 19th of November following, William Bull not having appeared, an interlocutory decree was passed, and a commission issued to take testimony. After the return of the testimony taken, a decree was passed on the 22nd of' January, 1867, ordering “a partition of the tract or parcel of land in the proceedings mentioned, called ■‘Whitaker’s Chance,’ or by whatsoever name or names the same may be known and called, containing sixty-five acres more or less, between the parties to this suit,” to each one a moiety thereof. It also directed a commission to issue, in the usual form, to five persons to make the partition. On the 27th of' the same month the commission was issued, empowering and directing the commissioners to divide into two equal parts the land called “Whitaker’s Chance,” or by whatsoever name the same may be called, and to allot one part to William Bull and the other part to William H. Pyle. On the 23rd of April a petition was filed by William Bull, asking that the decree of partition be revoked, and that he may be per
A motion has been made to dismiss these appeals. The decree of the 12th of March, it is alleged, is not a final but an interlocutory decree, while the final decree was not passed until the 13th of March from which no appeal has been taken. These two decrees are substantially the same, differing, so far as the rights of the appellant are involved, only in respect that the latter sets out fully the division and allotment made by the commissioners. The decree of the 12th, confirms absolutely the report of the commissioners, by which the laud is partitioned and allotted by metes and hounds, with an accompanying plot, to the respective parties, complainant and defendant. It is as final an adjudication of the rights of the appellant as is the subsequent decree of the 13th, which was wholly unnecessary, except in so far as it determines the question of costs. This being so the appeal was properly taken from the decree parsed on the 12th of March. '
The delay in transmitting the record to this Court is explained by the only affidavit which has been filed, that of the appellant, and this fully removes the objection made upon the ground of delay.
The decree of the 22nd of January, 1867, directing partition to be made, is not before us by virtue of the appeal taken from it on the 19th of March, 1869. It is true the appellant, at the time of taking the appeal, made an affidavit that the decree was obtained by surprise and mistake. But he has failed to enter the appeal within the
The view which we take of this case renders it unnecessary and useless to express an opinion upon many of the questions raised, as they will become unimportant in the further proceedings which may he taken. The vital question in this case is, whether the commissioners have acted in accordance with the power and directions contained in the commission issued to them under the decree of partition. By referring to the commission it will be seen that they are directed and empowered to divide a tract of land called “ Whitaker’s Chance,” or hy whatsoever name or names the same may he known. In this the commission follows the words of the decree, and as it contains no reference to any other tract of land, or any description hy which to designate other land, it confines hy its very terms the acts of the commissioners, whose only powers are derived from it, to the land mentioned in it. The bill speaks of the land as a tract of land called “Whitaker’s Chance,” of which Bennett Bull died seized. That there is such a tract of land is abundantly shown hy the proof in the case, yet the commissioners have entered upon and divided another and wholly different piece of land, entirely omitting the land named in their commission and of which Bennett Bull did die seized. The land which they divide and partition is known as the “ Land of Promise,” lying south of and adjoining “ Whitaker’s Chance.” They have thus not only exceeded the power given under the commission, but have utterly failed to do that, which the commission in express terms authorized and directed them to do. Why this was done they do not explain in their return;
So far as the decree of January, 1867, is concerned, by which partition between the parties is ordered, we cannot say that it is clearly incorrect. It was passed upon some testimony taken after the interlocutory decree; but this testimony is very general, and does not add anything to designate with .certainty the land upon which the decree is intended to be effective.. It does however appear from the testimony afterwards taken, that the appellant is not without some foundation for his separate claim to the land which it was attempted to divide under the commission in this case-. Without expressing any opinion upon the
Decree dismissing petition affirmed. Decree confirming Commissioners’ return reversed, and case remanded, without reversing or affirming decree directing partition.