Sansbury v. Belt

53 Md. 324 | Md. | 1880

Miller, J.,

delivered the opinion of the Court.

In September, 1864, the appellees recovered two judgments against Mary E. Sansbury, the mother of the appellants, and the sole question presented by this appeal is whether the Court below was right in directing these judgments to be paid out of the proceeds of the real estate sold under the decree in this cause.

It appears that George T. Crawford, Mrs. Sansbury, Mrs. Wall and.Mrs. Hill, who claimed to be the nephew and nieces of David Crawford, deceased, brought an action of ejectment (the husbands of the married women uniting in the suit) to recover certain lands in Prince George’s county, of which the said David died seized and possessed. This litigation, which was commenced in 1860, was warmly contested, and continued until 1872. The case was removed from the State Court to the Circuit Court of the United States, and the result, after two appeals to the Supreme Court, was a recovery, in November, 1872, by the plaintiffs of three undivided fourths of the land. During the progress of the cause Mrs. Sansbury and her husband died, and the appellants, as her heirs-at-law, were made plaintiffs in her stead. Mrs. Wall also died pending the proceedings, and her surviving husband and infant children were made plaintiffs in her place. George T. Crawford likewise died, but his children were not made parties, and hence the recovery was only for three-fourths of the land.

Before the suit was instituted all the plaintiffs made written agreements with their attorneys to pay them a contingent fee in money in case of success. But subsequently, in 1870, after the death of Mrs. Sansbury, Mrs. Wall and Mrs. Hill, with their husbands, entered into another agreement, by which they agreed to give their attorneys a sum of money equal to half the value of the property and mesne profits to be recovered, and further agreed to give them “ a lien on said property and mesne profits thereof, to secure their retainer, and not to assign the same without their written assent, and to execute such assurances as may be necessary to render said lien effective ; and it is further understood that this agreement is in place and stead of any other agreement made by us to pay the above-named attorneys.” The appellants did not sign this agreement, and were at the time infants under twenty-one years of age.

Immediately after the recovery in ejectment, the surviving attorneys and the representatives of those who were dead, filed the bill in this cause, for a sale of the land recovered, to pay the amount thus agreed upon for their professional services. To this bill Mrs. Hill and her husband, the surviving husband of Mrs. Wall and her children, and the appellants, children of Mrs. Sansbury, were made defendants. The bill sets out the agreement of 1810 made by Mrs. Wall and Mrs. Hill and their husbands, and avers that the appellants, being minors at the time, were unable to enter into a contract, but, as they recovered one-fourth of the land, and were as much benefited as the other parties by the services of these attorneys in this long and tedious litigation, they ought to be required to pay the same proportion in respect to the recovery in their favor as the other parties agreed to pay under their agreement. It then charges that all the parties in whose favor this real estate has been recovered by the services of these attorneys, are possessed of no personal estate, and are entirely without means of paying the amount thus due except by a sale of the land so recovered, and that the complainants are entitled to enforce payment of this amount as a Uen upon the land by a sale of the same. The prayer of the bill is that the three undivided fourths of the land may be sold for the payment of the amount thus due the complainants, and for general relief.

After answers and proof, a decree was passed in October, 1875, ordering 'the whole real estate to be sold “ for the payment of the claims of the complainants,” and appointing trustees to make the same. The sales were duly made, reported and ratified, and the proceeds brought into Court for distribution. After paying costs, commissions, expenses, and the claims of the complainants, a balance remained for distribution to the several defendants. At this stage of the case, a petition was filed by the appellees, setting forth the judgments they had recovered against Mrs. Sansbury, in 1864, and asking that they he paid out of the amount to he awarded to her children, the appellants. This application was answered and resisted by the children, and proof was taken showing that Mrs. Sansbury left no personal estate. The auditor then stated an account, in which the amount coming to the appellants was applied to the payment of these judgments, leaving a small balance still due thereon. To this account exceptions were filed, but the Court ratified the same, and hence this appeal from the order of ratification.

We are not aware of any equitable principle, or of any rule of equity'practice that will justify this order. The land was not sold on a hill for partition among heirs, where creditors of the deceased may come in and participate in the fund, upon showing insufficiency of the personal estate, nor was it sold under a creditors’ bill or a bill in the nature of a creditors’ bill. The general creditors of Mrs. Sansbury were not called in, nor were the appellees as judgment creditors made parties to the bill, nor was it necessary for the purpose in view, or the relief prayed' to make them parties. The bill sets up a specific equitable lien on the land recovered in the ejectment suit in favor of the attorneys who prosecuted that action to a successful termination. The decree proceeds upon the assumption that this lien had been established by the proof, and it can be sustained upon no other theory. But this equitable lien, if it existed, was created long after the lien of these judgments upon Mrs. Sansbury’s interest in the land. These judgment liens were outstanding elder encumbrances of which the purchasers were bound to take notice, and of which it is presumed they had knowledge at the time. It is well settled law in this State, that chancery sales, unless expressly stipulated to the contrary by <the terms of sale, are made subject to encumbrances on the property. As a general rule, the only thing sold is the interest and estate of the parties to the proceeding, and the doctrine of caveat emptor applies. Farmers’ & Planters’ Bank vs. Martin & Travérs, 7 Md., 342 ; Slothower vs. Gordon, 23 Md., 1; Duvall vs. Speed, 1 Md. Ch. Dec., 229. There is no pretence that the trustees made any representations at the sale, that the property would be sold free of encumbrances, or that the appellees were present, and requested or assented that it should be so sold. The purchasers are not here making complaint, or asking the proceeds to be applied to these judgments for their relief. For aught that appears in this record, they are content to take the land charged with the judgment liens, and are presumed to have made their bids, and bought for so much less on that account. Moreover, the appellees could have subjected the lands in the hands of the purchasers to the payment of their judgments. The mode of procedure to accomplish that result was obvious and simple. In this state of case, we think it would be inequitable and unjust to take this fund from the children, and apply it to the judgment debts of their mother. It follows that the order appealed from must be reversed, and the cause remanded to the end that the account which distributes the fund to the appellants may be ratified.

(Decided 12th March, 1880.)

In thus disposing of this appeal, it must he observed that we neither affirm nor approve the original decree of October, 1875. That decree is not before us for review. No appeal has been taken from it, and it stands as the law of the case.

Order reversed, and cause remanded.