84 Md. 577 | Md. | 1897
delivered the opinion of the Court.
This case comes before us on an appeal from the action of the Court below in refusing to rescind an order of ratification of a sale made by Alfred D. Bernard, trustee, to James Connaughton, the appellant’s intestate. Mr. Bernard filed a report in which he stated that he had offered the property at public auction, but not having received an adequate bid had withdrawn it, and that Connaughton had made an offer in writing for the three properties embraced in the decree, which are referred to in his offer as “ Nos. 625 and 627 Light street, and No. 100 PI York street, the lots to conform in size and be subject to the ground rents as set forth in the advertisement of said property in the ‘Sun’ of November 7, 1895, a copy of which is hereto affixed.” The sale thus reported was finally ratified, after due publication of the order nisi, no objections having been filed. Ten days afterwards Connaughton filed a petition asking the Court to rescind the final order of ratification, on the ground that the titles to the three lots were defective and the sale was inadvertently ratified. The appellant filed “ additional exceptions to the sale,” James Connaughton in the meanwhile having departed this life. That was done
When a sale has been ratified, after publication of the order nisi in accordance with the established practice of Courts of Equity, the facts relied on by one seeking to have the sale set aside must be very clearly established and must be of such character as strongly appeal to the conscience of the Court. But when the Court can see that injustice will be done a purchaser by compelling him to take the property, it has the power to rescind the order of ratification, if the proceeds of sale are still within its control, provided the purchaser has not by his conduct or neglect deprived himself of the right to .relief. We will therefore inquire into the circumstances surrounding this case to ascertain whether the appellant should be relieved of the purchase made by his intestate.
A number of objections have been urged to the titles and we will consider them in the order they are presented in the appellant's brief. The two lots fronting on Light street are designated on the plat filed in the casé as Nos. i and 2. No. 1 is on the northeast corner of Light and York streets, having a front of fifteen feet six inches on the former and forty-eight feet on the latter. No. 2 adjoins No. x on the northerly side, fronts thirteen feet on Light street, and has a depth of forty-eight feet. In the rear of those two lots there is an alley three feet wide, and just beyond the alley is lot No. 3, fronting fifteen feet on York street, and having a depth of sixty-seven feet and six inches, running along the alley for its whole depth. Nos. 1 and 2 are parts of a lot which fronted sixty-seven feet and six inches on Light street, with a depth of fifty-one feet on York street and which was leased in 1829 by Louisa Armistead to David Carson and David Taylor, for ninety-nine years, renewable for ever, at the annual rent of $135.00. Afterwards Carson and Taylor subleased the portion of the original lot contained in No. 1 at the annual rental of $31.00. They also subleased
The fact that a greater rent has been reserved on lot No. 2 than there was in the first sublease cannot materially injure or affect the holder of the present leasehold interest. He can see that out of the $60 to be paid by him, the $26 reserved by Carson and Taylor is paid to the holders of that or the original reversion. The covenants in the leases fully protect him from any loss on that account and the possibility of additional inconvenience or trouble that he might have for his own protection would not be such a burden as to entitle him to be relieved from a purchase such as that made by Connaughton.
One of the deeds in the chain of title for lot No. x, was executed by John V. L. Graham, who was administrator of Frank M. Hopkins and also of Ida S. Hopkins. It is objected to because it was simply signed John V. L. Graham, administrator, and only signed once. It' would have been more regular for Mr. Graham to have signed twice—as administrator of each of his intestates—but the recitals show that as administrator of Frank M. Hopkins he had, under
The next objection urged is that the title to lot No. 2 is defective by reason of the failure of the Liberty Building Association No. 3 to file a statement of the amount due it on a mortgage which it held and under which this lot was sold. The agreed statement of facts showed that one Frederick Harker became the owner of that lot and gave a mortgage to the Building Association, which contained his assent to the passage of a decree for the sale of the mortgaged premises under the provisions of Art. 4, section 692, etc., of the Local Code. A decree was passed by the Circuit Court for Baltimore City for the sale of the mortgaged property in which a trustee was appointed to make the sale " at or after any one of the periods limited in the mortgage filed for the forfeiture of said mortgage.” The trustee sold the property to the mortgagee, reported the sale to the Coui't, and it was ratified, but the docket of the Court does not show that any statement of the mortgagee’s claim was filed either before or since the sale. It is contended by the appellant that this omission made the sale void. We do not think, however, that it can have such an effect. The jurisdiction of the Court was not dependent upon the filing of said claim, but the Court had jurisdiction of the subject-matter and also of the parties by reason of the assent given to the passage of the decree. The title passed through the decree óf the Court, which authorized its agent, the trustee,
As the statute requires the statement to be filed before sale, the Court on having its attention called to the omission ought to refuse to ratify a sale, if it is not so filed. That was so held in Gatchell v. Presstman, 5 Md. 161, but the Court in referring to this question said that “when due notice, in the usual manner, has been given, affording an opportunity for objections to be made and none are presented, from any quarter, if the sale is finally ratified, being then a judicial sale, consummated by a Court of competent jurisdiction in the premises, it might well be considered too late, then, to make such an objection as the one now relied upon.” If it is not filed the Court might very properly, even after the sale was ratified, rescind the order of ratification upon application being made within such time as it would bej>roper to exercise that power, but in this case the sale was made some time prior to June 16, 1873 (the exact date does not appear in the record), and there is no evidence that any such application wras ever made or any question raised as to the regularity of the proceedings. It is too late to raise it now.
It will not be out of place to say that as it is admitted the proceedings in the mortgage case were never recorded, the appellee should have them recorded and pay the costs out of the proceeds of sale, if they cannot be collected from the proper party.
Two objections are urged against the title to lot No. 3. It is contended that the sale should be set aside because
Another objection urged is that there was reserved to a Mrs. Ryan, by the former owner of lot No. 3, the right of way across this lot for a passage from the alley to her lot “ for the purpose of passing wood, coal and other necessaries into the first mentioned premises, and also an outlet for water therefrom into said alley.” The lot in which Mrs. Ryan was interested had been conveyed to a trustee for her benefit by the persons who were also the owners of lot No. 3. The evidence shows that there is a pipe leading from the premises formerly owned by Mrs. Ryan to this alley to carry off the water, which is on the surface and plainly visible. There is also a door in the wall between the two lots. The property was offered at public auction on the premises and was examined by Mr. Connaughton, who was present and a bidder at the sale. There is no particular place designated where the right of way should be, and if it be conceded that the present or future owner of the Ryan lot can maintain the right to have this way, it can only be used in a reasonable manner and in such manner as will not unnecessarily interfere with the use of lot No. 3 by the owner of it. The evidence shows that since 1855 the present owner has only used it to clean out his sink and as an outlet for water to the alley. Mr. Connaughton did not urge this as one of the objections to the title, and there is nothing to show that he was not aware of this easement be
. We have not deemed it necessary or proper to pass upon 'the rights of persons > not parties to this proceeding to the alley or the easement above referred to, and have therefore purposely refrained from doing so, as we think the appellant has failed to show such a condition of affairs as would authorize the Court to set the sale aside.
Having considered all the objections to the titles urged before us and being of the opinion that the petition to rescind the order of ratification ought not to have been granted, the order of the Court below must be affirmed.
Order affirmed with costs to the appellee.