59 Md. 114 | Md. | 1882
delivered the opinion of the Court.
This is an appeal from an order of the Circuit Court for Baltimore County, setting aside a sale of a farm made by a trustee appointed by a decree of that Court. It appears from the record that the late Joshua Jessop by his last will, directed that after the death of his widow, his estate should be “ disposed of at public sale, the time and place of such sale having first been duly published and advertised, so that all my heirs as well as others, may have a fair and reasonable opportunity of having notice that such sale is to take place."
The will directs the disposition to be made of the proceeds of sale, but these provisions are not material to be noticed. Eo one being empowered by the will to sell the real estate, it was necessary to institute proceedings in Chancery for the purpose of having it sold, and carrying into effect the provisions of the will. All the parties in interest were made parties to the proceeding, and a decree
The following facts appear from the report of the trustee and the testimony in the record. After giving the notice prescribed by the decree, by publication in two of the weekly newspapers in the county, in the Daily Sun published in Baltimore City, and by handbills extensively circulated, the trustee offered the property at public sale on the 12th day of November 1878, and received a bid of $65 per acre ; the trustee and other parties interested considering that bid too low, the property was withdrawn. The trustee then employed a real estate broker, who advertised the property extensively, and he and the trustee used every effort in their power to effect a sale; but failed to secure any offer of more than $12,000. Between the 20th and 30th of December 1881, Charles M. Jessop, and John G. Booth (the broker) called at the dwelling of Mrs. Kelso, the appellant, in Baltimore, and offered the land to her for $65 per acre, requiring an answer by December 31st. On the 30th day of December, Mrs. Kelso went to the farm accompanied by Mr. Whitson, her agent and attorney; there she saw Charles M. Jessojs, Edwin Jessop, and Cecilia P. Johnson, (Edwin the trustee was confined to his room by sickness,) she made an offer of $60 per acre, to Edwin Jessop, who requested time to consult other heirs who were in the house, promising to give an answer in the afternoon. In the afternoon the offer of $60 was declined. Charles M. Jessop being present, made the remark that it could not be sold for less than $65 per acre.
Afterwards, on the same day, she offered to the trustee $65 per acre; he accepted the offer and agreed to sell the land to her at that price. She proposed then to pay $500, the cash deposit required by the decree, and to enter into
The following exceptions to the ratification of the sale were filed by all the parties in interest, the devisees and legatees named in the will, except Edwin, the trustee, some of whom are infants:
“1st. Because the price for which said property sold, was grossly inadequate, and much less than it was worth.
“2nd. Because the trustee was required by the terms of the decree in this case to sell the property at public sale, and the same was sold at private sale, to the great injury of the exceptants.
“ 3rd. Because if said property had been sold at public auction, as required by the terms of the decree, and by the will of Joshua Jessop, deceased, it would have sold for more than it did.
The trustee in his answer to the exceptions after referring to what had been stated in his report, says, “as to the 1st exception filed, that ‘he believes the price obtained for the property to be a low one, and that the same is well worth fifteen to sixteen thousand dollars.”’ As to the 2nd exception, he states that “he believed, upon the advice of his attorney, that he had the right to sell at private sale, having once unsuccessfully offered the property at public auction, provided those in interest did not suffer thereby; that at the time he accepted the offer of Mrs. Kelso, he believed such action was for the best interests of all parties, and was at the time wholly ignorant of his ability to get more than she offered.”
And as to the 3rd exception he says, that “when he accepted said offer, he believed it was fully as much as he could get at public sale, and be was anxious to avoid the costs of a public offer of the property. He is now convinced, however, that more than $65 per acre can be obtained for the property, if offered at public sale.”
He further answers, that “the offer of $13,400 for. the property is a bona fide one, and he has good reason to believe more than that could be obtained, if the property should be offered at public auction,” * * * * * *
“the information upon which is based the opinion, that even more can be obtained at a public sale, has been obtained subsequent to the acceptance of Mrs. Kelso’s offer. He further states, that none of the parties in interest were consulted by him with reference to accepting the offer of $65, except Charles M. Jessop, who agreed that the property should not be sold for less, and at the same time requested the trustee to keep the matter open for a few
The only testimony in the record as to the value of the property was produced by the exceptants. Two disinterested witnesses, Thomas Pearce and Samuel M. Pankin, testify that they consider $65 per acre a low price, and express the opinion that the property is worth $80 per acre. Charles M. Jessop testifies that the farm is worth $80 an acre, and is willing to give $600 more than it sold for. Mrs. Johnson, another exceptant, states that “she did not give her assent to the sale, was not consulted, regrets that the sale was made privately, and has the best reasons for believing that had the property been offered at public sale, it would have brought more money, and thinks the price offered by Mrs. Kelso a low one, knows the offer made by Charles M. Jessop is a bona fide one, and has good reason to believe that if the property is offered at public sale, even more than he offers can be obtained for it.”
The principles which govern Courts of equity in this State, in deciding upon the ratification of sales made by trustees are well settled. They are clearly stated by the late Chancellor in Latrobe vs. Herbert, 3 Md. Ch. Dec., 377, and we cannot do better than to quote his language:
“When a sale is made in all respects according to the terms of the decree, and neither fraud, mistake nor misrepresentation can be alleged against it, the faith of the Court is pledged to ratify and perfect it; but when the terms are departed from, there cannot possibly be any sort of obligation on the part of the Court to sanction it. The
terms prescribed by the decree, there can be no sort of doubt, that objections to its ratification will be allowed to prevail, which if urged against a sale made in conformity with the terms, would be disregarded; and perhaps no deviation could render a sale more obnoxious to objection, than selling at private when the decree directs a public sale.”
In many cases, private sales made by trustees acting under decrees directing the sale to be public, have been ratified, where it appeared that the attempt to dispose of the property at public sale had been fairly made, and had proved ineffectual; upon the principle stated in Tyson vs. Mickle, 2 Gill, 384, “that if a trustee has exercised a. power which, if previously applied for, would have been granted, as it were, as a matter of course, a Court of equity will, in the absence of proof showing the inexpediency and injustice of so doing, ratify the act done, in the same manner as if the requisite authority had been antecedently applied for and granted.”
The English practice of “opening biddings” has never been adopted in this State—as was said in Andrews vs.
This is a case in which a public sale was directed not only by the terms of the decree, but also by the express direction in the testator’s will; and although we do not think the provision of the will in this respect, deprives the Court of all discretion over the sale, yet it is not to be disregarded altogether in passing upon the question of the ratification of the sale reported.
Upon a careful consideration of the whole case, for the reasons stated, we think the order of the Circuit Court ought to be affirmed.
Order affirmed, and cause remanded.