57 Md. 531 | Md. | 1882
delivered the opinion of the Court.
There are two appeals in this record. The first is from the decree passed on the 25th day of May 1876, directing the sale of certain lands mentioned in the proceedings. This appeal was taken on the 16th day of January 1877, but ■was not prosecuted in time; the transcript of the record not having beén transmitted to this Court until April 1st 1881.
It is expressly provided by rule 10, (29 Md., 4,) that “ all transcripts of records on appeals from Courts of equity shall be made and transmitted to the Court of Appeals within six months from the time of the appeal prayed.” In this case nearly six years elapsed before the
The second appeal is from the order of the Circuit Court passed on the 22nd day of December 1880, dismissing the petition of the appellant, filed on the 30th day of July 1880.
The petition was as follows:
“The petition of Y. C. Downes, one of the defendants in the above cause, respectfully sets forth, that he is advised that the decree and the proceedings under which it was passed are irregular and erroneous, as appears on then-face :
“ 1st. Because the Court by which the decree was passed had no jurisdiction to decree the sale of the real estate mentioned and described in the proceedings.
“ 2nd. Because the said real estate belonged to your petitioner.
“ 3rd. Because the proceedings are irregular and erroneous upon their face.
“ 4th. Because on account of such irregularity, the real estate sold greatly below its value.
“ 5th. And because the purchasers of said real estate have not, and cannot have a good and valid title to the same, on account of said irregularities appearing on the face of said proceedings ; and for other good and sufficient reasons, your petitioner prays that the said decree may he annulled, and that he may have such relief as his case may require," &e.
Nothing is better settled than that a decree cannot be reviewed and vacated upon petition, after the term has elapsed, and it lias become enrolled. This can he done only by a hill of review, or by an original hill for fraud, Burch vs. Scott, 1 G. & J., 393. The exceptions to this rule are “in cases not heard upon their merits, and in which it is alleged that the decree was entered by mis
After the testimony had been taken and returned, the following agreement was.filed on May 26th 1876 :
“ Daniel Eriel, next friend vs. R. E. C. Downes, and others.
In the Circuit Court for Queen Anne’s County, in Equity.
“It is agreed, that the papers in this cause be submitted to the Court for a decree, without argument.”-
(Signed,) Thos. J. & B. P. Keatinu,
Solicitors for Complainant.
J. B. & E. H. Brown,
Solicitors for Defendants.
It is not alleged or suggested that the Messrs. Brown were not authorized to appear as solicitors for the appellant and the other adult defendants.
So far as the appellant is concerned, the decree appears to have been passed by the consent of his solicitors, and without controversy or dispute. No surprise or mistake is alleged, and from what appears in the record, there is no ground for such allegation. The decree has been executed, the property sold, and after the lapse of more than four years from the date of the decree, the petition of the appellant was filed, asking that the decree be rescinded.
For these reasons the petition was properly dismissed by the Circuit Court.
It is clear that the petition cannot be treated as a bill of review. But if it could be so treated, it was filed too late, as more than nine months had elapsed after the date of the decree, as was decided in Berrett vs. Oliver, 7 G. & J., 207; Bowie vs. Berry, 1 Md. Ch. Dec., 452.
With respect to the averments contained in the petition, it may be observed :
1st. That the appellant is in error in asserting that the property mentioned in the proceedings belonged to him. There can be no doubt as to the true construction of the deed of May 7th 1860, and the Circuit Court correctly determined that Ann E. Downes, and Richard A. Downes, minor children of Myra E. Downes, were each entitled as tenants'" in common, to an undivided fourth part in fee simple, of the property described in the deed.
2nd. The Circuit Court had jurisdiction of the subject-matter of the suit, and power to decree a sale upon proof, that the lands could not be divided among the parties entitled, without loss and injury, and that it would be for their interest that the lands should be sold, there being sufficient allegations in the bill of those facts. Tomlinson vs. McKaig, 5 Gill, 256; Billingslea vs. Baldwin, 23 Md.,
The section provides that a decree may be passed on the bill or petition of “ any joint tenant, tenant in common, or any parcener, or any concurrent owner.” It contemplates that the suit must be in the name of one or more of the persons entitled. If these are minors, the proper form of action is in their names as complainants by their next friend. In this case, this form was not pursued, the bill was filed in the name of Daniel Friel, next friend of Ann E. and Richard A. Downes, minors ; these were made parties defendants, and answered by guardian appointed for that purpose. In this respect, the proceeding was irregular, and not in conformity with the Code. But this irregularity by no means authorizes the Court to rescind and annul the decree after the term has passed, upon the petition of the appellant.
Since the case was submitted in this Court, several papers have been filed by the appellant; among them is an affidavit made by him in open Court, stating that “the decree was obtained and passed by mistake of. counsel.” This departure from the regular course of proceeding in the appellate Court, has doubtless resulted from the fact that the cause has been conducted by the appellant in person, without the aid of counsel. But neither the affidavit nor the other papers containing allegations of new
For the reasons stated, the appeal from the decree taken on the 16th day of January 1877, must be dismissed ; and the order passed by the Circuit Court on the 22nd day of December 1880 will be affirmed, and tlie cause remanded.
Order affirmed, and cause remanded.