3 Md. Ch. 227 | New York Court of Chancery | 1852
The object of the petition filed in this case, by John D.
The decree which was passed on the 2d of July, 1849, directed the trustee to give notice to creditors to come in by a time limited with the vouchers of their claims, and all the usual necessary steps having been taken, the Auditor appropriated the proceeds of the sales among the parties apparently entitled, and his report making the appropriation was duly ratified and confirmed on the 23d of April, 1850, and the trustee directed to apply the proceeds accordingly. This order remained unchallenged for nearly fifteen months, and then, for the first time, the Court is called upon by petition to open and cancel it, and give a different direction to the money.
Whatever may be the true extent of the powers of this Court over money raised by its decrees, my impression is, that under the circumstances of this case, the order in question should not be rescinded. That order has all the force and qualities of a decree ; and although it may be competent upon petition to vacate the enrolment of a decree alleged to have been obtained by surprise, as may be inferred from the case of Oliver vs. Palmer and Hamilton, 11 G. & J., 137, it is very clear that the general law of the Court is the other way, and that after a decree has been enrolled, it cannot be reheard upon petition, and that the remedy is by bill of review, Burch vs. Scott, 1 G. & J., 393. Several terms had intervened between the passage of this order, and the filing of the petition which seeks to vacate it. It is an application, then, (by peti
This is not an application by the purchaser to decree the money to be applied to remove incumbrances from the title, or restored to him in consequence of a defect in the title, and therefore the remarks of the Court of Appeals, in the case of Glenn vs. Clapp, 11 G. & J., 1, have no application. The purchaser’s title here is supposed to be good, no matter how this question may be decided. The question presented, is between the petitioner and the other creditors of Beard. The latter came in under the decree, as they were invited to do. The petitioner did not do so, but after delaying for fifteen months after the Court had adjudicated upon the subject, he comes in, and asks to have the adjudication opened and reversed. My opinion is, he comes too late, and his petition will be dismissed.