Dorsey's Lessee v. Garey

30 Md. 489 | Md. | 1869

Bartol, C. J.,

delivered the opinion of the Court.

The appellee, who was defendant below, claimed title to the land in controversy in this case, under the deed of the 18th day of November, 1884, from James Mackubin, trustee, who was appointed by the Circuit Court for Howard county, sitting in equity, by its order passed on the 6th day of January, 1864, in a cause wherein Mary A. T. Thompson, by her next friend, and others, were complainants, and John T. B. Dorsey, the appellant, and others, were defendants. That order empowered the trustee to sell the land mentioned in the proceedings, and the appellee, having purchased a part thereof, being the parcel of land now in controversy, and having complied with the terms of sale prescribed by the order, and the same having been reported.and ratified, the trustee executed and delivered to the appellee the deed under which he claims title.

At the trial, the appellant took two bills of exceptions, the first to the admission in evidence of the equity proceedings and the trustee’s deed offered by the appellee; and the second, to the granting of the appellee’s prayer, which virtually instructed the jury that the proceedings in the equity cause, if found by them, and the sale and conveyance by Mackubin, the trustee, to the appellee, were sufficient to defeat the appellant’s action.

These exceptions present substantially the same question, that is, the legal force and effect of the action of the Circuit Court sitting in equity, and the proceedings thereunder to pass the title to the appellee.

In the examination of this question, we are not called on to consider whether the proceedings in the equity cause were in all respects regular, or in conformity with the rules of the Court, or the general rules regulating chancery proceedings. No principle is more firmly established, or more constantly asserted by Courts of justice, than that mere irregularity or error in the proceedings of a Court of competent jurisdiction can never be discussed collaterally in another suit. This principle has Teen recognized and asserted by this Court recently in the cases of Cockey vs. Cole, 28 Md., 276, and Schley’s Lessee vs. M. & C. C. of Balto., 29 Md., 34. In those cases, as in this, the question of the validity of certain orders and decrees of Courts of Chancery was brought before us collaterally for consideration, and the principles therein asserted as governing such cases, were stated with such distinctness, and are so applicable to the present case, that nothing more is necessary than to refer to them without again repeating the reasons or citing the authorities upon which they rest.

In all such cases the only thing to be considered is whether the Court whose proceedings are brought in question collaterally, had jurisdiction and power to pass the judgment, decree or order, under examination.

In this case the only inquiry we have to make is, as to the jurisdiction and power of the Circuit Court sitting in Equity, to pass the order of the 6th of January, 1864. If it was passed in the exercise of the lawful power and jurisdiction of the Court, any mere irregularity which may have occurred in passing it, or in the subsequent proceedings, would not invalidate the title of the purchaser.

The case presented by the bill was one clearly within the jurisdiction and cognizance of the Court. It was filed by cestáis que trust, and invoked the exercise of the powers of the Court over the trustee, and for the protection and security of the trust estate.

The whole subject matter of the bill and the relief prayed, were peculiarly within the jurisdiction of a Court of Equity.

The appellant and several other of the defendants were alleged to be non-residents of the State, and upon the filing of the bill, the usual order of publication against non-residents was passed, and publication made in conformity therewith, warning them to appear on or before the 1st day of March, 1864.

Before the expiration of the period thus limited for the appearance of the non-resident defendants, the order of the 6th of January, 1864, was passed; which recites that “the Court being satisfied clearly by the proof that at the final hearing of this case, a sale of the real estate mentioned in the proceedings will be ordered,” then goes on to adj udge and order, that the same shall be sold, appoints James Maekabin, a trustee to sell, prescribes the terms of sale and the duties of the trustee, and .requires the proceeds of sale to be brought into Court to be thereafter disposed of under its direction.

The provision of the Code under which this order was passed, is as follows:

Art. 16, sec. 129 : “In all cases where a suit is instituted for the sale of real or personal property, or where from the nature of the case, a sale is the proper mode of relief, the Court, in its discretion, may order a sale of the property before final decree, if satisfied clearly by proof that at the final hearing of the case, a sale will be ordered, and order the money arising from such sale to be deposited or invested, to be disposed of as the Court shall direct by final decree.”

"We entertain no doubt that the case presented by the bill, was one which came within the plain provisions of this section of the Code, and, therefore, it was within the discretion of the Court to order the sale before final decree.

It has been objected in the argument on the part of the appellant, that the order in question was not passed in pursuance of the general powers of the Chancery Court, but under a special and limited power, conferred by statute, which must be átrictly construed and strictly pursued. If this were so, there would be no sufficient ground for impeaching the validity of the order, for it appears upon its face to have been passed in strict conformity with the Code, and within the limits of the discretion conferred on the Court.

But, on a careful consideration of the case, it seems to us not to fall within the rules governing the exercise of a special and limited jurisdiction conferred by statute.

The case before the Court was one within its general jurisdiction; the statute did not confer the jurisdiction, but merely prescribed a summary remedy, or mode of proceeding in- cases over which the Court had full jurisdiction independent of the statute.

"Whether the discretion, therefore, was judiciously exercised in the particular case, is a question we have no right to consider ; nor are we at liberty in this case to review the Court’s action, or to examine the proof upon which it was based.

For “where a Court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or not, its judgment, until reversed, is regarded as binding in every other Court.” Elliott vs. Piersol, 1 Pet., 340.

The principal ground upon which the validity of the order of the 6th of January, 1864, has been assailed, is that it was passed before the expiration of the time limited by the order of publication for the appellant and other non-resident defendants to appear in the cause; and it has been argued that the appellant, who was sued as a non-resident, not having had any actual notice of the suit by subpoena, or any constructive notice by publication for the period prescribed by law, before the order was passed, the Court had no jurisdiction over him, and therefore the order was passed without authority, and is null and void; and in support of this position, we have been referred to the cases of Hollingsworth vs. Barbour, 4 Peters, 466; Harris vs. Hardeman, 14 Howard, 334; Woodruff vs. Taylor, 20 Vermont, 66; Penobscot Rail Road Co. vs. Weeks, 52 Maine, 456; McKim & Kennedy vs. Mason, 3 Md. Ch. Dec., 186, and to Clark & Jackson vs. Bryan & Lunt, 16 Md., 171.

There is no doubt of the general proposition recognized by those cases, that “to give any binding effect to a judgment or decree determining the rights of a party, it is essential that the Court have jurisdiction both of the person and of the subject matter, and that to give a Court jurisdiction over a party it is essential that he should have notice of the proceedings either actual or constructive.”

It has been justly said to be “ a cardinal principle in the administration of justice, that no man can be condemned or divested of his right, until he has had an opportunity of being heard. He must either by serving process, publishing notice, appointing guardian, or in some other way be brought into Court; and if judgment is. rendered against him before that is done, the proceeding will be as utterly void as though the Court had undertaken to act where the subject matter was not within its cognizance.” Bloom vs. Burdick, 1 Hill, 130.

Recognizing the binding force of this principle as founded on maxims of natural justiee, we proceed to inquire whether the order of the 6th of January, now under consideration comes within the application of the principle; or, in other words, whether it was such a judgment or decree as the Court, had no power or jurisdiction to pass without previous notice to the parties defendants. This depends upon the true construction of the provision of the Code before cited, and upon the real nature and effect of the order itself.

By the terms of the Code, the Court is authorized in its discretion, to order a sale before final decree, “in all cases lohere a suit is instituted for the sale of real or personal property, or where, from the nature of the case, a sale is the proper mode of relief” And this discretion is to be exercised in such cases “ when the Court is satisfied by proof that at the final hearing a sale will be ordered.”

The plain intent and object of this provision is to empower the Court, in any case coming within its operation, to order a sale before the rights of the parties have been determined by final decree. The operation and effect of such an order is not to settle or adjudge the rights of the parties, but to convert the property into money, when the Court is satisfied that a sale will ultimately be decreed, and in its discretion it shall-consider such a course necessary for the preservation of the property, and the protection of the rights and interests of the parties litigant.

Such an order is not in its nature a judgment or decree within the meaning of the principle before stated, and requiring for its validity previous notice to the parties interested. Unquestionably before passing such an order, it would, in most cases, be proper that 'previous notice should be given to the parties. And' in a case where the question is presented by a direct proceeding, authorizing a review of the Court’s action, the want of such notice might be considered sufficient ground for a reversal of the order. But, as the question is here presented, we are considering only the power and jurisdiction of the Court to pass the order, not whether the discretion of the Court, in passing it, may have been irregularly or impróvidently exercised.

(Decided 12th May, 1869.)

In considering this question, we have examined carefully the several provisions of the Code referred to by the appellant’s counsel, in connection with the 129th section of the 16th Article, and have also considered that section in the light of the original Act of 1835, eh. 380, section 1, from which it was codified, and are of opinion that the case before the Chancery Court fell clearly within its purview and operation.

According to our construction of that section, when a case comes within its provisions, the power is conferred on the Court, upon satisfactory proof as therein prescribed, to pass an order of sale at any time after the bill has been filed, without •waiting for the appearance or answers of the defendants.

Such is the plain import and meaning of the provision of the Code. The discretion to be exercised by the Court in such case, is not a mere arbitrary discretion, but would be subject to review on appeal in the same case, and if improvidently exercised, the action of the Court would be set aside; but where it has been exercised in a case within the jurisdiction of the Court, and falling within the provisions of the Code, it cannot be examined collaterally, nor can its validity be questioned in any other cause before another tribunal.

It follows, from what has been said, that there was no error in permitting the chancery proceedings, and the'deed of the trustee, to be offered in evidence, or in granting the prayer of the appellee. In the course of the argument in this Court, it has been contended that the appellant, having been, as alleged, within the State of Virginia at the time the bill was filed, and having so continued during the late civil war, must be considered as an alien enemy, and that all legal remedies against him were suspended during the period of hostilities. This question is not presented by the record, not having been raised or decided in the Court below; and, therefore, under the Code, Article 5, section 12, we are precluded from expressing any opinion upon it.

' ' Judgment affirmed.