Bolgiano v. Cooke

19 Md. 375, 1863 Md. LEXIS 5

• Court: Court of Appeals of Maryland
• Decided: January 22, 1863
• Status: Published

Opinion

Bowie, C. J.,

delivered the opinion of this Court:

The appellee, Eber E. Cooke, trustee appointed to sell certain lands decreed to be sold by the original decree in this cause, having reported the sale of lots No. 2 and No. 3, respectively to the appellant, John Bolgiano, an order of ratification nisi was passed, to which exceptions being filed and overruled, the sale was finally ratified on the 7th of July 1859, from which order of final ratification this ajipeal is taken.

The exceptions below, which were four in number, have been subdivided and multiplied into twenty-six points, by the appellant’s brief.

As neither time or space will permit us to take up and consider each point seriatim, it is believed they may be classified and condensed, without prejudice to the appellant, as follows:

1st. The sales should not be ratified, because the Court below had not jurisdiction, the allegations of the petition being insufficient.

2nd. There was not sufficient proof of the facts alleged.

3rd. The proper parties were not before tbe Court,

4i1i. The terms of the decree wore not complied with, by the trasteo.

Trustees appointed by decrees of a Court of Equity, to5 sell real estate, are agents or instruments of the Court;, sales made by them, are transactions between the Court- and the purchaser, and as such, are regulated by all the-principles of equity applicable to judicial sales. Glenn vs. Clapp, 11 G. & J., 1. 1 Md. Ch. Dec., 229, Duvall vs. Speed. Ibid., 239, Goldsborough vs. Ringgold. 9 Gill, 412, Ferren vs. Keithly.

Before the ratification of a sale made by authority of a Court of Equity, all objections within these limits areojien for consideration. Tire sale will be set aside upon proof of error, mistake, misunderstanding, or misrepresentation as to the terms or maimer of sale; it must appear to ho in all respects fair and proper, or it cannot receive the sanction of the Court. Tomlinson vs. McKaig, 5 Gill, 276, 277.

The Court of Chancery, however, sells only the interest and estate of the parties to the cause, and the doctrine of iccaveai emptor” applies to all such cases. 7 Md. Rep., Farmers & Planters Bank vs. Martin & Traders. A purchaser discovering a defect of title, at a proper time, may be relieved from his purchase Ly asking a rescission of the sale. Duvall vs. Speed, 1 Md. Ch. Dec., 299. Kauffman vs. Walken, 9 Md. Rep., 229. When a Court can see injustice will he inflicted by tbe ratification of a sale upon a party not in default, the sale should not be ratified. 12 G. & J., 113, Penn vs. Brewer.

With tbe aid of these authorities, we will proceed to examine the exceptions.

First. The sufficiency of the allegations of the petition to sustain the jurisdiction of the Court beLow. It is said that seisin or possession of the lands in question by the infant defendants, is not expressly charged.

Pleadings in equity are not framed with the same precision and exactness as at law. Facts are often indirectly alleged or expressed by necessary implication. It is sufficient to present substantially the facts on which the Acts of Assembly are predicated, when applying for relief under any of them. The Act of 1785, ch. 72, sec. 12, speaks of infants having a joint interest or interest in common with any other person or persons, which may be sold by the decree of the Court, “if it shall appear” it will be for the interest and advantage both of the infant and of the other person or persons concerned.

The Act of 1816, ch. 154, and 1818, ch. 193, sec. 7, provide, “where any infants are or shall be possessed of any lands,” or hold “equitable titles to real estates,” upon its appearing that it will be for the interest and advantage of such infants to sell such lands,” they may be sold by order or decree of the Court.

The Act of 1835, ch. 380, extends the power of the Courts to decree sales of infants’ estates to all cases of trusts for infants, either for application of rents, profits or income, or in any oth§r form, for their benefit, and to all cases of chattels real, where if the property were freehold, the sale might be decreed, and to all such cases of trusts of and concerning ground in the city of Baltimore.

The Act of 1818, ch. 133, sec. 2, prescribes the mode of proceeding upon the petition by guardians and jproohein ami, for the sale of infants’ real estate, requiring a comniission to three freeholders, etc.; provided that the said report shall not be conclusive on the Court, but they may in their discretion examine witnesses and have other testimony, and shall decree only in those cases where, under all circumstances, the Court shall be satisfied that a sale would be for the interest and advantage of the infant or infants.

These Acts, being “in pari materia,” are to be construed together. They import that any interest or estate, at law or in equity, in possession or remainder, belonging to infants, held in common with others, or separately, in real estate, may, upon proper application hy any of the parties in interest, or proehehi amis of the infants, upon the Court being satisfied it is for the interest and advantage of the parties, be sole! by decree of the Court. In the proceedings under the Act of 1185, the interest of all parties concerned Is the standard; in proceedings under the Acts of 1816, ch. 154, 1818, ch. 193, and 1835, ch. 380, the interest and advantage of the infants is the standard of adjudication. But the interest or estate subject to be sold by the decree of the Court, under the latter Acts, is as unlimited as under the former.

The jurisdiction or power and authority to decree a sale, is conferred by these Acts, if the allegations of the bill or petition are sufficient to bring it within their purview. The original petition in this case alleged that Wm, Mann, late of Baltimore, deceased, by Ms last will, recorded in the office of Register of Wills, and proved on the 23rd April 1835, devised certain real estate lying in the city of Baltimore, to trustees, for the benefit of his nieces, Euphrasia and Euri three, for life, with remainder to their children and their heirs; that the trustees named in the will, save two who were discharged, declined serving, and Charles F„ Mayer was appointed by the Court trustee in their stead; that the said real estate was unproductive, and it would bo beneficial for the infant children and for all parties interested in said devise, that the said real estate should be sold; that Euridyce and her husband had conveyed their interest to the petitioner, Dows, and had no children, and a subsequent petition filed in the cause stated she had died without issue. The petitioner prayed the said real estate might be leased or sold. Subpoenas were prayed for the infants and trustee, and the former having appeared by < guardian, a commission was prayed for to three freeholders, according to the Act of Assembly in such case made and provided.

These averments substantially embrace all that is required by the Acts of Assembly, and show such interests in the parties to the proceeding as authorized the Court to decree the lease or sale of the premises, if they were satisfied it was for the interest and advantage of the infants.

“The true test of jurisdiction is, whether a demurrer will lie to a bill.” Tomlinson vs. McKaig, 5 Gill, 276. The allegations being sufficient to give jurisdiction, no demurrer to the petition for that cause could have been sustained. “If this be so, neither the erroneous action of the Court,, after filing the petition, nor defective proof, could affect the question of jurisdiction.” Ibid.

The Act of 1818, ch. 133, makes it discretionary with the Court to act upon the report of the commissioners, or to examine witnesses and have other testimony. The only indispensable prerequisite is, “under all circumstances the Court shall be satisfied that a sale would be for the interest and advantage of the infant or infants.” The decree may be based upon the facts disclosed by the commissioners report alone. It is not essential the conclusion» of the commissioners should be adopted by the Court. The facts reported may be such as to satisfy them a sale would be for the interest and advantage of the infants, or vice versa when the commissioners arrived at a different conclusion. In this instance, the Court below adopted the report so far as to decree that the estate should be leased, subject to the ratification of the Court, or, if the trustee should deem it most advantageous, that it should be sold.

Jurisdiction having boon acquired by the Court, it follows, as a legal consequence, that the title of the purchaser to the interest of the parties decreed to be sold, cannot be affected by any apparent defect of proof. The law of the decree must be executed. It is binding upon all parties and privies, unless reversed upon appeal. The circumstance, that some of the defendants were minors, does not make them an exception to the rule.

The second ground of exception, the want of proof of the infancy, and other allegations in the petition, may be considered as disposed of by the preceding considerations.

The third exception, the want of proper parties, might be regarded as untenable, on the ground that the trustee only professed to sell the interest of the parties to the cause, and that Courts of Equity, in making sales by their agents, do not guaranty title beyond the terms of the decree. But adopting the broader view of some of the cases, that the Courts will not enforce a sale where it appears there would bo an injury inflicted, we will inquire whether there is any such apparent injustice in this case? The will of Wm. Mann conveyed the legal estate to trustees, in fee, the rents, issues and profits to be paid to his nieces, Euphrasia and Euridyce, for life, with remainder in fee to their children, and in case of the death of either of the nieces without issue during the life of the other, then the part of such niece so dying, to be beld for the use of the survivor of said nieces and her issue, under the same provisions and limitations to which the original share was liable; and in the event of the death of both of said nieces without issue then the whole of said real estate to be beld in trust for tlio uses and purposes of an infirmary for children, etc. Without examining whether the limitation «ver, after an indefinite failure of issue, and after a limitation in foe, is not too remote, it is sufficient to say that the petition made all the parties in interest, in being, parties to the cause; the tenants for life, the tenants in fee, in. remainder, and the trustee, who represented all the interests, vested or contingent, were before the Court.

The original decree under which this sale was made, ha« been passed ten years. No appeal has been taken, no time is reserved to the infant defendants, by law, to appeal in such cases after coming of age. A bill of review, or an original bill to set aside the decree for fraud, might, it is true, be filed by the parties, adult, or infant, after coming of age, but a purchaser objecting to a sale under such, a decree, must state affirmatively facts which would justify the apprehension that such a contingency might occur. In Glenn vs. Clapp, 11 G. & J., 1, it was held, “it was no objection to the ratification of a sale made under a decree, that a bill was depending at the time of the sale to vacate the decree, where the grounds for impeaching it are not stated, and it does not appear that any order was passed to restrain the proceedings of the trustee.”

The appellant in this case no where alleges that the parties in the record are not the true parties in interest; that . any other material party in interest has been omitted; that any of the complainants or defendants does not stand in the relation to the deceased, or his property, which they are represented to hold. There is no allegation or proof of claim to the premises by any person not a party to the cause,—-nothing to cast a cloud of suspicion on the title.

The last point of objection to be considered, is non-compliance with the terms of the decree prior to the sale. This is two-fold: 1st, the minority of the surety to the bond ; 2ndly, want of due notice. The first branch of this objection, if it were sustained by evidence of the fact, (which it is not,) is concluded by the decisions in Dawes vs. Thomas, 4 Gill, 333, and Speed vs. Smith, 4 Md. Ch. Dec., 410. The office of the bond is not for the benefit or protection of the purchaser as such. The qualification and sufficiency of ■¿lie sureties, is matter for the Court or officer authorized to ■approve, which being done, as in this case, it was not competent for the purchaser to review in this manner the action of the Court. The record shows, moreover, that the objection was not well taken, in fact.

The second branch of the last point of objection, want of duo notice, is a serious obstacle to the ratification oí'the sale, if sustained. The Chancellor, in the case of Glenn & Wootton, said, although there was no pretence of unfairness, “the failure to give the notice prescribed by the decree, is a fatal objection to the validity of the sale; a departure from the regulations of the decree, in any essential respect, without first attempting to sell in conformity with them, will prevent a ratification, if objection be made.” In that case, the objection, proceeded from creditors, who thought themselves prejudiced by the sale. There is not the same force in the objection when proceeding from the purchaser, unless he can show he was injured by the want of notice, which is, in fact, the reason of the rule.

This objection, like all others of fact, must be supported bj preponderating evidence sufficient to set aside the report of tbe trustee. That report is made under the sanction of .an oath, and entitled to full faitli and credit, unless contradicted by conclusive testimony. It states the sale was made in pursuance of the decree, and refers to certain advertisements and certificates therewith filed. There is ■great obscurity in the language of these certificates. Certificate No. 1 contradicts itself. Bearing date the 11th of May 1859, it states, “the annexed advertisement of trustee’s sale,” etc., was inserted in “The Sun,” etc., “three times a week, ten times.” This fairly interpreted, would be equivalent to three times a week for three successive weeks, and once over, which would be a full compliance with the terms of the decree; but the additional words, ■“first insertion April 21st, 1859,” if true, make it impossible, as only twenty days intervened between the first insertion and the date of tbe certificate. Throwing this certificate out of the question, certificate No. 2 shows that the advertisement was inserted in a daily newspaper printed and published in the city of Baltimore, three times a week three weeks, the first insertion being on the 19th of April, and the day of sale the 10th of May 1859. The decree required notice by advertisement published in at least two ■daily newspapers of the city of Baltimore, once a week at least, for three successive weeks.

(Decided January 22nd, 1863.)

Regarding the evidence in favor of the sufficiency of the notice, as outweighing that against it, taken in. conjunction with the trustee’s affidavit, and being unable to see how the purchaser could be injured by any irregularity in this respect, we think the exception for want of notice .should be overruled.

Concurring with the Court below, in its conclusions on all the exceptions, the order ratifying the sales to John Bolgiano is affirmed, with costs to the appellee in this ¡Court and the Court below.

Order affirmed, with costs to the Appellee.