Johnson v. Johnson

52 Md. 668 | Md. | 1879

Irving, J.,

delivered the opinion of the Court.

The sole question presented by this appeal, is whether the Act of 1870, chapter 450, which repeals and re-enacts secs. 58 and 60 of Art. 16 of the Code of Public General Laws has the effect to prevent the enforcement of a decree of the Circuit Court of Baltimore City, passed before the passage of the Act, in a case pending in said Court, and renders a new proceeding, ah initio, in the Circuit Court for Baltimore County, necessary to secure the sale which has already been decreed by the decree of the Circuit Court of Baltimore City. The record discloses that Elizabeth Johnson of Baltimore City died, leaving a will, whereby a tract of land lying in Baltimore County, was devised in equal proportions to her children, who resided in said city.

A bill was filed in the Circuit Court of Baltimore City, where the defendants resided, alleging the indivisible character of the land, and praying for a sale for the purpose of partition. All the parties were brought in, and the case proceeded by regular stages to a decree which was passed on the nineteenth day of June, eighteen hundred and sixty-six. The decree directed the sale of the land and appointed trustees to make the sale.

After sundry ineffectual efforts to sell, the trustees finally did sell and reported the sale to the Court, but this sale was set aside for cause. Before any further effort to sell was made, this Act of 1870 was passed. Two of the parties defendants, on the 28th day of February, 1879, filed a petition in the Circuit Court of Baltimore City asking for a rescission of said decree, which petition having been dismissed this appeal has been taken.

The 58th sec. of Art. 16 of the Code, before amendment by this Act, provided that “Whenever lands lie partly in one county and partly in another, or partly in a county, and partly in the City of Baltimore, or whenever persons proper to be made defendants to proceedings in chancery, reside some in one county, and some in another; or some in a county, and some in the City of Baltimore, that Court shall have jurisdiction, in which proceedings shall have been first commenced.” In this case, the land was situated entirely in Baltimore County, and the parties defendants resided in Baltimore City. To this section the Act of 1870, ch. 450, adds two provisoes, the first of which gives rise to this controversy. It reads thus: “ provided, that all proceedings for any partition of real estate, to foreclose mortgages on land, or to sell land under a mortgage, or to enforce any charge or lien on the same, shall be instituted in the Court of the county, or City of Baltimore, where such lands lie, or if the lands lie partly in one county, and partly in another, or partly in one county, and partly in the City of Baltimore, then such proceedings may be commenced in either county or in the City of Baltimore; but no sale or partition of lands under such proceedings, shall take place after the passage of this Act, except under the decree of a Court, as hereinbefore provided.” The last clause of this proviso, the appellants insist divests the jurisdiction of the Court which passed the decree, and makes it inoperative and void. In numerous cases, this Court has held that statutes should not he given a retroactive operation, unless such a construction is unavoidable from the language used. In Williams’ Adm’x vs. Johnson’s Adm’x, 30 Md., 508, this Court said: “A statute_ought not to have a retroactive operation, unless its words are so clear and imperative, that no other meaning can he annexed to them, or unless the intention of the Legislature could not he otherwise satisfied; and especially ought this rule to he adhered to when such a construction would alter the pre-existing situation of parties, or would affect or interfere with their antecedent rights.” In New Central Coal Co. vs. George’s Creek Coal and Iron Co., 37 Md., 557, it is said that this rule is “ founded in the most obvious principles of justice; ” that a law shall he taken to have a prospective operation, and never a retroactive effect, “unless there is something on the face of the enactment,, putting it beyond doubt that the Legislature meant it to operate retrospectively.” In Herbert & Hairston vs. Gray, 38 Md., 529, the same principles are declared and applied.. In this last case the' Legislature enacted that a married woman might he sued at law “on any note, bill of exchange, single bill, bond, contract or agreement which she may have executed jointly with her husband.” Notwithstanding the past tense (“may have executed”) was used, this Court held as the Legislature did not say “ may have executed before the passage hereof,” or “ may have heretofore executed,” the presumption was that the Legislature did not intend to affect contracts not made with reference to and after the statute was passed. In the Act under consideration, the Legislature has not said in terms,, that decrees already passed shall he inoperative after its passage, and in view of the serious inconvenience which such a construction would produce, and the change in the situation and rights of the parties, we cannot suppose the Legislature intended it to have such an effect as is claimed for it. A decree has been passed by a Court of competent jurisdiction at the time of the institution of proceedings, and which had full jurisdiction up to and including the time when the decree was passed. That decree adjudicates that the property in question was indivisible ; that it was necessary for it to he sold for the purpose of partition; trustees have been appointed to make the sale; the decree secures to the complainant the right to have the costs paid from the property. If the law he accorded the effect which the appellants claim for it, it would change the whole status- of the matter and the situation of the parties. By a hew proceeding in another jurisdiction, on account of the change of circumstances since the decree, the present decree may he reversed, and great hindrance, delay and expense would result to the parties. Conceding the power of the Legislature to pass a law having such effect, upon which we express no opinion, we do not think the law necessarily requires such a construction, or is susceptible of no other. We must hold that it was intended to be, and is, prospective only in its operation; and in so far as decrees, passed before it went into'effect, settling the rights of the parties, are concerned, it cannot he held as affecting them or the powers of the Court passing them to enforce them.

(Decided 18th December, 1879.)

The order dismissing the petition will he affirmed with costs.

Order affirmed with costs.