Powles v. Jordan

62 Md. 499 | Md. | 1884

Bryan, J.,

after stating the case, delivered the opinion, of the Court.

The appellee took an exception to the admission in evidence of the transcript from the Circuit Court of Baltimore City. The objection urged against its competency is that the proceeding was instituted by a married woman suing in her own name, and not by next friend. It was undoubtedly an error to disregard the provision of the statute in this particular; but the Court had ample jurisdiction to grant the relief sought in the case, and it has never been held that errors and irregularities would render a decree or judgment void, when the Court was acting within *the limits of its jurisdiction. When a Court has power to hear and determine a cause, the only remedy, if it should commit errors, is by an appeal to a superior tribunal. While its judgment stands unreversed, it must be accepted as conclusive by all other Courts. But if it determines a question, which it has not the legal competency to entertain, its decision is a mere nullity. These principles are as firmly settled as any known to the law. We think that the transcript was properly admitted in evidence.

The Court refused to admit in evidence the deed from Mrs. Jordan and John W. Jordan to Henry Powles; and to this refusal the appellant took an exception. By the decree of the Circuit Court, John W. Jordan was appointed trustee in the place and stead of the original trustee, who was deceased. He took all the estate belonging to the original trustee, and was invested with all the powers belonging to him, so far as they were attached to the office and duty of trustee. By the deed from Lammott and wife to William Cock the land in question was conveyed to Cock, his heirs and assigns, in trust for the sole and separate use of Mrs. Jordan, a married woman, with a limitation over of the equitable estate after her death. She had the power, however, to defeat this limitation, by “selling, conveying and disposing of the whole of the property but this power was to be exercised “ with the approbation and consent of the said William Cock, and not otherwise.” The deed to Powles was made with the approbation and consent of John W. Jordan, the succeeding trustee ; hut Cock never gave any approval or consent to it; it having been, in point of fact, made more than ten years after his death. The confidence in this particular reposed in Cock was entirely personal, and did not belong to the estate, which he held as trustee. It is perfectly well settled by the authorities that where the consent of any person is required to the execution of a power, the condition must be strictly complied with; and if the person, whose consent is necessary, die before the execution of the power, and without having assented, the power is gone. Sugden on Powers, marginal page 319. The devise in the will of William Cock cannot be construed into an assent to the execution of the power. It makes no reference to it in any way. As the deed to Powles purports to he made in execution of this power, and derives all its efficacy from it; and as the power was extinct and incapable of being executed, no title was conveyed to him. The Court therefore, properly refused to admit the evidence.

(Decided 14th November, 1884.)

Judgment affirmed.