4 Gill 333 | Md. | 1846
delivered the opinion of this court.
This case comes before us, by an appeal from an order of Montgomery county court, as a court of equity, pronounced on the 2nd of July 1844; finally ratifying and confirming a report of sales, which had been made by a trustee of the court.
The order directs, that the sales within reported be ratified and confirmed, no cause to the contrary thereof, having been shewn; although notice appears to have been given, as directed by the rule of that court, in pursuance of the act of Assembly, 1840, chap. 109.
The act of Assembly, to which"the court refer in their order, provides :
“ That any sale made and reported during the recess of the court, by any trustee, under tiie decree of any county court, as a court of equity, on being filed in the clerk’s office, shall stand for final ratification, without the necessity of procuring a nisi order thereon; provided there shall be entered on the docket a*338 notice of motion for final ratification thereof, to be given or published in such form as the rules of said courts respectively prescribe.”
The rule prescribed by the court, in pursuance of this act of Assembly, is as follows:
“ Ordered, that the notice of motion for final ratification of trustee’s sale, made under the second section of the act of 1840, chap. 109, shall, at least one month before the passage of the final ratification, be served upon all the parties interested therein, or published for three successive weeks in such newspaper or newspapers as the clerk of the county shall prescribe, agreeably to the provisions of the act of Assembly.”
It appears from- the record, that the complainant, on the 16th of May 1844, entered on the docket-, notice, that he would move for a final ratification of the sale, at the ensuing July term of the court. Service of this notice was admitted by the appellee, on the 18th of May 1844, and is proved to have been served on the appellant, on the 1st of June 1844, by the return of the deputy sheriff. As therefore more than one month elapsed between the period of the notice and the order of ratification, the rule of the court was strictly complied with, and no just exception can-, on this ground, be' taken to the order of ratication.
The decree of the county court,-of the 13th of May 1843, by which the lands mentioned in the bilk Were ordered to be sold, provides, that the trustee shall execute' a bohd in the penalty of six thousand dollars.
A bond was executed by the trustee, in a penalty of five thousand dollars. This bond-was accepted by the court; and the report of sales by the trustee, in which he states, that Henry Valdenar had become the purchaser of the property, and had complied with the terms of sale, was, as we have seen, finally ratified on the 2nd of July 1844.
Under such circumstances, the counsel for the appellant has contended, that the order of ratification is to be set aside, and the sale vacated, on the ground, that the penalty in- the bond executed by the trustee, although accepted by the court, was in-a sum less than that specified in the decree.
It is certainly an established principle, that a decree cannot be altered, after it has been enrolled, except by a bill of review, or by a petition in writing for a rehearing, if the term has not passed, and the decree is still under the control of th,e court. This rule, however, relates only to the decree, so far as it acts upon the subject of the bill, and has no application to that part of it, which is merely directory as to the mode in which it is to be enforced.
The order of ratification is, we think, free also from this objection, and it must be affirmed.
ORDER affirmed.