26 Md. 23 | Md. | 1866
delivered the opinion of this Court.
If the proceedings in this case under which the decree In question was passed, had been instituted under the Act of 1785, ch. 72, there could he no question as to the jurisdiction of the Court to pass tho decree. See Tomlinson vs. McKaig, 5 Gill, 256, and Billingslea vs. Baldwin and Wife, 23 Md. Rep., 85. The Code, however, in conferring jurisdiction upon the Chancery Courts in such cases, does not exactly pursue the words of the Act of 1785, and tho proceeding being instituted since the adoption of the Code must he governed by its provisions.
We concur with the Judge of the Circuit Court In the opinion that tho jurisdiction and authority of the Court below to entertain the bill, and to pass the decree, must be .sought exclusively in the 99th section of the 16th Article. The 36th section is inapplicable, and the 56th section cannot be so construed as to alter or enlarge the jurisdiction •of the Court in a case like this, beyond the terms of the .99th section. That provides, “The Court may decree a partition of any lands, &c., on the bill or petition of any joint tenant, tenant in common, or any parcener, or any eoncurrentowner, whether claiming by descent or purchase; orifit appears that the said lands, &e., cannot be divided without loss or injury to the parties interested, the Court may
The hill avers that the complainant is entitled to have partition of the land among the parties interested, and charges “that it will be for the interest and advantage of all the parties interested-, and especially of the minor heirs-, that the lands he sold and the proceeds divided among the parties as they are respectively entitled, and the shares of the said minors invested in some productive fund for their benefit.” The hill then prays that the land may be decreed to he sold, and also for general relief.
Under the decision in Tomlinson vs. McKaig, we are warranted in saying that this hill may he considered as a bill for partition, as such the Court plearly had jurisdiction of the cause, and under the prayer for general relief might have decreed a partition, although not specifically prayed. Or upon proof that the land could not be divided without loss and injury -to the parties, could have decreed a sale. The objection therefore to the ratification of the sale, based upon a supposed want of jurisdiction,, is not supported.
According to our construction of the 99th section of the 16th Article, to justify the Court in passing a decree of sale in such case, it ought to he satisfied by- the proof that the land cannot he divided without loss or injury to the parties-interested. In this case no proof whatever was offered'to establish that fact, and the objection that the decree was passed without proof is urged by the appellant as a reason why the sale ought not to be ratified.
The want of proof of a material fact to support the decree-renders it liable to he hereafter impeached by the infants upon a hill of review, filed after they shall have attained full age, or by prochein ami during their infancy. And
In Glenn vs. Clapp, 11 G. & J., 10, it was said “hut if, while the fund is yet in Court, the purchaser is disturbed in his possession, or exposed to be so disturbed by one having a clear title to the estate, 'which title was entirely unknown to the purchaser at the time of the sale, we think the plain principles of justice require the sale to be rescinded and the purchase money to be restored. As between the parties to whom the proceeds of sale are ultimately to be paid and the purchaser, the transaction is so far in fieri that a total failure of consideration should prevent them from receiving the stipulated price.”
The same equitable rule we think applies here. We are of opinion that it would be inequitable to hold a purchaser to his contract and compel him to take a-title, in which the Court can see upon the face of the proceedings he is liable to bo hereafter disturbed by a proceeding by infants, parties, upon grounds of defect in the proceedings manifest on their face.
In Tomlinson vs. McKaig, where the Court was called on to “enforce a purchase under such a decree, and the defendants in the first proceeding contested the right of the complainants in the second to the parchase made by them, it was held to be the duty of a Court of Equity to stay the execution of the first decree until an opportunity might be afforded the defendants within which they should, be at liberty to file an original bill to sot aside the decree for fraud, and to the infants within which they might file a bill of review to vacate the decree for errors apparent on its face-; to effect which objects the cause was remanded after a reversal of the decree dismissing- the bill filed by the devisees of the purchaser. ”
Here the whole transaction, is in fieri; it is la the power ■of the parties in interest to have the defect in the proceed
This conclusion is not in conflict with the decision in Bolgiano vs. Cook, 19 Md. Rep., 375. There the supposed defect in the proof, upon which, the original decree was passed, was either immaterial or was not apparent upon the proceedings. Moreover, a period of nine or ten years had elapsed after the decree had been passed, and it did not appear that there were any infants or others concerned with the subsisting right, after the lapse of such a period,to question or impeach the validity of the decree for such cause. Here, on the contrary, as we have said, the record discloses the fact that there are now infants parties to the cause, and that there is apparent on the face of the proceedings valid ground upon which they may hereafter by bill of review impeach the-decree and disturb the possession of the purchaser; and this objection being presented to the Court before the contract of the purchaser is completed, as a ground upon which he asks to be relieved from his purchase, we are of opinion, that upon the plainest principles of equity he is entitled to relief, and will therefore sign an order reversing the order of the Circuit Court setting aside the sale, and remanding the cause, but without awarding costs to the appellant.
Order reversed, &c.