33 Md. 588 | Md. | 1870
delivered the opinion of the Court.
A statement of some of the material facts disclosed by the record is important to a proper understanding of the questions presented by this appeal.
Daniel Domer died in 1846, leaving a will by which he devised all his real estate to his wife for life, and on her death he directed and empowered his executors to sell the same, and execute deeds therefor to the purchasers as soon as the purchase money was paid, or secured to be paid, and to distribute the proceeds equally to his three children, the issue of any child dying before distribution to have the portion their father or mother would have been entitled to if living. He appointed David Domer, one of his sons, and the appellant, Peter Eichelberger, his executors. The widow died in 1851, and the executors, in execution of their trust, obtained, in February, 1852, an order from the Orphans’ Court directing them to sell the real estate, in pursuance of which they sold, on the 4th of August, 1852, one hundred and thirty-nine acres of land to the appellee, William Hawthorne, at $12 per acre. This sale was duly reported to the Orphans’ Court by the executors, and the Court, on the 7th of September, 1852, passed thereon the usual order of ratification nisi, but never passed any order finally ratifying the sale. The executors then passed a final account in the Orphans’ Court, on the 25th of April, 1853, in which they charged themselves with the purchase money for this land, and the same with other funds in their hands is by that account, after payment of debts, distributed to the parties entitled. It also sufficiently appears from the record that all the distributees have received their respective shares of this distribution, except George II. Domer, a grandson, who was then under age, and whose share amounting to $130/^o- still remains in the
In this condition as to title the land remained until the 17th of August, 1860, when Geo. H. Domer, by next friend, filed a petition in the Orphans’ Court alleging the sale was not fair and bona fide, but was made by collusion and according to previous concert and agreement since carried out between the purchaser and the executors, that the latter should become participants and partners in the purchase and share the benefit thereof; that the land did not sell for its real value, and the sale.has never been finally ratified; that he has never received any distribution from the estate of his grandfather, and for these reasons he objects to the ratification of the sale and prays that it may be disaffirmed and rejected. Hawthorne answered this petition insisting upon the fairness and bona fides of the sale and upon its ratification. The executors also answered, but admitted most of the allegations of the petition, stating, however, they were not aware at the time that they were violating the law or their duty as executors in becoming interested in the purchase; they also charge in their answer that Hawthorne never paid them but the sum of $800 on the purchase. Testimony in reference to the subject of this petition was then taken, and the Orphans’ Court upon hearing and argument of the case passed an order dated the 3d of November, 1860, rejecting and setting aside the sale, but the order on its face assigns no reasons for its passage. David Domer, one of the executors, then declined to act further as such, and the appellant thereupon gave a new bond, became sole executor, and then proceeded under the order of the Orphans’ Court to re-sell the property. After sales to several purchasers who refused to comply, he effected a sale about the 10th of December, 1863, to James Null for $1,750, in whose hands the purchase money remains, but he is willing to pay the same into Court
The prayer of the present bill in equity filed by the appellee originally against the executors and George H. Domer, but to which by various amendments all the distributees and the second purchaser Null are made parties, is that the original sale to the complainant be confirmed and his title to the land secured, but if this cannot be done then that he be reimbursed out of the purchase money due by Null the full amount he paid to the executors on the original purchase and for general relief.
One of the disputed questions of fact in the case is, did the complainant pay to the executors the full amount of the purchase money he contracted to pay them for the land ? Upon all the proof in the record, which we have examined with much care, we decide this question in the affirmative. We are also of opinion the land sold for its then fair value; there is certainly no such inadequacy of price shown as would justify a Court of Equity in setting the sale aside on that ground if it had been made under its decree.
The complainant has acquiesced in the refusal of the Court below to interfere with the order of the Orphans’ Court vacating the sale, and that question is not now before us. The chief ground on which the appellant’s counsel resists the relief to the extent of reimbursing the complainant his purchase money and for permanent improvements made on the land, is that the original contract of sale to him was illegal and fraudulent, and was so decided to be by the Orphans’ Court, and, therefore, ho is not entitled to the aid of a Court of Equity in respect to any money he has paid, or any thing he has done in pursuance thereof. The order of the Orphans’ Court, as we have seen, does not state the grounds on which it was passed. One of the Judges who signed that order was examined as a witness, and says the particular matter on which the sale was set aside was the fraudulent collusion therein between the executors and Hawthorne the purchaser.
Such would be the undoubted rights and equities of the appellee, if any of these distributees had proceeded in equity to have the sale set aside and the deed from the executors to liim vacated. But it is said the Orphans’ Court had exclusive jurisdiction over the matter and in the exercise of that jurisdiction has pronounced upon the invalidity of the sale, and the only remedy the appellee had was by appeal from the decision of that Court, and that he cannot maintain a bill in equity for any relief on the subject or on any matter connected with the setting aside of the sale. It must be remembered here that the Orphans’ Courts are tribunals of limited powers, forbidden to “exercise any jurisdiction not expressly conferred by law.” As the law stood at the time this sale was made and since embodied in the Code, (Article 93, section 280,) it is provided a sale made by an executor under authority derived from, the will, “shall not be valid or effective unless ratified or confirmed by the Orphans’ Court, after notice- given by publication in the same manner practised in cases of sales of lands under decrees in equity.” It would be exceedingly difficult in view of the provisions of Article 16, section 68, that “nothing in the testamentary law of this State shall be construed in any manner to affect the general superintending power of the Courts having chancery jurisdiction with respect to trusts,” and of section 65 of the same Article, that “where a sale has been made by an executor under a supposed authority derived from a will, the Court” (of Chancery) “may at its discretion confirm such sale oh
That decree directs Null, the second purchaser, to bring into Court the purchase money due by him with the interest thereon, and also directs the appellant as executor to bring into Court the money remaining in his hands which was distributed by the Orphans’ Court account to George H. Domer, and then refers the case to the auditor to take proof
All parties interested in the estate have either by their answers repudiated all claim against the appellee and objected to any disturbance of the accounts under which they have already received their distributive shares from the executors, or acquiesce in the decree by declining to appeal therefrom. Even George H. Domer, who by his next friend, originated the proceedings in the Orphans’ Court to vacate the sale, and who was at the date of the decree at least twenty-three years of age, has not appealed. The only appellant is the executor, who can have no personal interest in the ixxatter, and as against him we have no hesitation in affirming the decree.
Decree affirmed and
cause remanded.