Fitzgerald v. Fitzgerald

7 D.C. 240

• Court: District of Columbia Court of Appeals
• Decided: February 21, 1872
• Docket: No. 1148
• Status: Published

Opinion

Mr. Justice Olin,-

after stating the case substantially as above, delivered the opinion of the Court:

First. In every aspect in which we view the order purporting to have been made on the 9th of December, 1870, we think it erroneous and that it should be reversed.

The 9th of December, on which day the order purports to have been made, was not the first day of the December special term, and that motion could not be heard on that day, unless all the parties in interest in the suit voluntarily appeared at the hearing of the motion and waived the requirements of the fifth equity rule. If the justices did make an order in pursuance of the fifth rule of the court,, that a different day than the first day of the special term be fixed for hearing such motion, the record and all the papers in the suit are, so far as we can find, entirely silent upon the subject.

The decretal order ought to have recited that the parties in interest appeared on the hearing of the motion, or that an order was made by the court under the fifth rule in equity allowing the party to make the motion asked for in the petition. Nothing of the kind appears of record.

The fifth equity rule is as follows:

“ All motions for rules or orders, or other proceedings, which are not grantable of course, or without notice, shall, unless a different day be assigned by a justice of this court, be noticed for the first day of the special term, and a copy of the affidavits of papers upon which said motion is founded, together with the notice of motion, be served on the opposite party, if he has appeared, or his solicitor, at least two days before the hearing on said motion, unless the grounds of said motion are matters of record, in which case it shall only be necessary to refer to the parts of the record as are specified in the notice of motion.”

Second. If the trustees did appear and thereby waive all informality of notice of motion, the facts stated in the petition, if conceded to be true, do not authorize the order that was made in this case. First, because the trustees in this case were only the instruments of the court in making sale of the Fitzgerald property — that is, the interest which this family had in this property — that is all the trustees could legally offer for sale. If the trustees stepped aside from their duty and declared to bidders upon the property that it was free from all incumbrances and that the purchaser would receive a title in fee simple, and it subsequently turned out that there were incumbrances on the property, this court would undoubtedly set aside the sale and order a resale and, perhaps, make the trustees pay the costs of a resale. But where, as in this case, no false representations ¿s to the title are pretended to have been made, no fraud or imposition practiced on the 'part of the trustees, the order made in this case should not have been made. ,

We think that where a trustee is appointed by this court to make sale of property in a case like this, he is but the hand of the court, and is authorized to sell, as in this case, the interest of the Fitzgerald estate in the property men-; tioned in the bill. He is no more obliged to look to the question whether there be any incumbrances upon the property than is the purchaser, and that this court will not set aside a sale unless some fraud, false statement or imposition is practiced which has misled the purchaser.

Third, If it be true that before the decision of the motion •in this case, the trustees appeared with their answer to the petition of the purchaser, Bragazzi, then the order was. erroneous, for it denies, under oath, every substantial fact stated in the petition as to this tax incumbrance.

- We think, therefore, the order should be reversed and distribution of the proceeds be made in pursuance of the 'final decree made in this case, the petitioner to pay the cost of this appeal.