Perrin v. Keithley

9 Gill 412 | Md. | 1850

Magktjdek, J.,

delivered the opinion of this court.

At September term, 1828, a decree was passed by the chancellor, to sell the real estate of John Merchant, deceased, in order to pay his debts; the personal estate proving insufficient. A. B. Harrison was appointed the trustee to make the sale, and on the 29th of November in that year, filed his bond, which it appears was approved by the chancellor. Nothing further was ever done by the trustee in the court of chancery.

On the 22nd October, 1847, three of the children of the deceased filed their petition in the chancery court, in which it is charged, that the trustee made sale of the real estate of the deceased, about the year 1828, for about $5,000, but the sale never was reported by him to the court; that he had received the purchase money, but had never paid over the balance, to which the petitioners and others were entitled. The petitioners ask the appointment of a new trustee, (the former trustee being dead,) to collect and distribute the proceeds of sale. Jolni Perrin was appointed the trustee, gave bond, and in 1848, advertised the real estate for sale. In consequence of this advertisement, Keithley and others, claiming the land by purchase, filed their petition asking, for the reasons therein stated, that the n'ew trustee should be restrained from making the sale’. These last petitioners allege the sale to have been made in May, 1829; mention to whom the land was sold, first by the trustee, and afterwards by persons who claimed under the trustee. In this petition we are told at what price each parcel was sold; that th’e property sold for'its full value at the time-of the sale, though it has been since improved and made of much more value. The purchase money', it is alleged, is paid.'

The further object of this last petition, is to establish their title by testimony and to obtain a deed.

Upon this petition being filed, the chancellor -passed an order to require the trustee to desist, from selling,-and authorising testimony to be- taken. Much testimony was taken, and on the 29th of February, 1849-, the'-chancellor ratified'the sales, and from this order of ratification the appeal is taken-, -and is now before us.

It must be-admitted, that for the conduct of the'original trustee no apology is to be- made. At the same time- it must be said, that none of the other parties connected withthe case are faultless: The purchasers ought to-have-taken care that the sales were reported and ratified. - This was equally the duty of the heirs,- unless, as the record authorises us to believe, they were satisfied- that there would remain-, after satisfying the claims of creditors, nothing to be distributed among them. If the purchasers themselves were in court asking to be released from their purchases,-there might be found-reasons for granting such relief. Hut neither creditors nor purchasers complain. It is in proof too, that although- there was at least one other creditor, yet no creditor-has ever-appeared in- this court, except the one who filed-the bill of complaint, who-was a judgment creditor, and whose claim exeeded the amount of the purchase money, according to the testimony before us.

It is with reluctance-that we give a judgment which may seem to sanction such conduct in a trustee of the court of chancery, and yet it would seem, that under all the circumstances of this case, and when the whole of the purchase money it may be presumed, has been collected and paid over to the judgment creditor, that the sale, upon this proof, ought to be ratified, since the purchasers require itP

Several of the heirs, some time ago, filed a petition, complaining of the conduct of the trustee, but it is charged by them, that he had made the sale, and received the purchase money. Only the husband of one of them appeals from the order of the chancellor ratifying the sale. He, too, is the person who, upon the petition of the heirs before spoken of, was appointed a trustee of the court to complete the trust. He was aware, that the object of the petition was to get a trustee to collect the purchase money and distribute it. Although authothorized by the decree to proceed to sell the premises if a sale had not taken place, yet it was his duty to proceed to collect the money for which the property was sold, provided, upon investigation, such should turn out to be the case, yet his first act is, to advertize that the property is to be sold, and when enjoined by an order of the chancery court, not to sell, he appears in that court, and admits that he does not know whether all or any of the sales were or were not made by the trustee.

As those who purchased the property or derive title from the 'purchasers, wish the sales to be ratified; as we have no proof that the property did not sell for as much as it was then worth, and as purchasers and those claiming under them, it is to be presumed have now been in possession of the premises twenty years, claiming the same under a decree of the court of chancery, and a sale made by its trustee, it is not thought right to reverse the chancellor’s order of ratification.

Objections to a sale, if made by one party, are often entitled to no consideration, yet when they come from another, might require a sale to be set aside. Some of the objections urged in this case, are such as the heirs of the person whose real estate is sold, have no right to insist upon. The chancellor’s order appealed from is affirmed with costs.

ORDER AFFIRMED.