Baktol, C. J.,
delivered the opinion of the Court.
The decree from which this appeal was taken, was passed on the 4th day of April, 1862. On the 81st day of December, 1867, the appellants, Johnson and wife, filed their petition in the Circuit Court, alleging that the decree was obtained by mistake, which was not discovered by them until the day before the filing of the petition, and praying to be permitted to appeal. The facts alleged in the petition were verified by the oath of B. T. Johnson.
Upon this affidavit, under the ruling in Oliver vs. Palmer & Hamilton, 11 G. & J., 137, and Herbert vs. Rowles, 30 Md., 271, the appeal is properly before us, notwithstanding the lapse of time ordinarily prescribed by law for the prosecution of appeals from Courts of Equity. 1 Code, Art. 5, sec. 20.
In the body of the petition, among other things it is alleged that the petitioners, “ being within the belligerent lines of the Confederacy, and adhering to that side in the late civil war, no process or notice in fact was ever served on them, nor could it have been served, the bill having been filed, all the proceedings had, and decree entered, sale made and proceeds distributed, after war had commenced and before it ended, during ail which period all communication between the persons in Maryland and those in Virginia, within the Confederate lines, was prohibited by law.”
Upon this statement of facts, it has been argued by the appellants, that the right of the appellee to enforce her mortgage was suspended by reason of the appellants, Johnson and wife, having been alien enemies when the suit was instituted, and having so continued during the progress of the proceedings, and until after the passing of the decree. If this question were properly before us on [486]*486the present appeal, it would be set at rest by the decisions pronounced by this Court at the last terna, in the several appeals of John T. B. Dorsey against Kyle and others and against John T. W. Dorsey. In those cases it was held upon full argument and consideration, that the creditors of a party who is an alien enemy, may have the same remedy against his property, remaining within the jurisdiction of the State, as they could have against the property of any other non-resident debtor.
This question, however, is not properly presented by this appeal, and could not be raised by averments in the petition. The office of the petition and affidavit is simply to remove the objection growing out of the lapse of time since the decree, and to entitle the apellants to have the proceedings of the Circuit Court reviewed, in the same manner as if the appeal had been prosecuted within the nine months prescribed by law.
In disposing of the appeal, our attention must be confined to an examination of the proceedings as they appear upon the record, without reference to the new matter set out in the petition.
The questions arising upon the record are few and may ■ be briefly disposed of.'
The bill was filed on the 2d day of October, 1861, by the appellee, to enforce the payment of a mortgage of a ■house and lot in Frederick, executed and delivered to her by Bradley T. Johnson to secure $2000, being for balance of purchase-money due to her for the property. The mortgage debt was alleged to be due, and interest thereon from April 1st, 1861. On the 18th day of May, 1861, Johnson had conveyed the mortgaged property, together with certain other property, to William J. Ross, in trust for the benefit of his wife. The bill prayed for an order of publication against Johnson and wife, who were nonresidents of Maryland, and for subpoena against Ross. The defendant, Ross, appeared, and by his answer ad[487]*487mitted the truth of the matters charged in the bill, and “ submitted to such decree as might be right.” An order of publication against the non-residents was passed in the usual form, and upon the filing of a certificate setting forth that the same had been published in the manner to bo hereinafter more particularly mentioned, the Court, on the 4th day of April, 1862, passed a decree, pro confesso, against the absent defendants, and directed the mortgaged property to be sold to pay the mortgage debt.
The appellants claim a reversal of the decree upon two grounds:
1st. Because the decree directed the sale -without fixing a time within which the defendants might pay the mortgage debt and costs.
2d. Because there is no sufficient proof of the publication of the notice to non-residents as prescribed by the Court’s order, and required by law.
The first ground of objection to the decree is based on sec. 125, Art. 16 of the Code. In David vs. Grahame, 2 H. & G., 94, this Court in construing the third section of the Act of 1785, eh. 72, which is similar to see. 125, Art. 16 of the Code said, “ that although ordinarily the defendant is entitled to have a day given him to bring in the money on a decree for the sale of mortgaged premises, yet being for his benefit, he may waive it, if he pleases.”
And in that case, the answer having confessed the complainant’s claim, and consented to a sale for the payment of it, on such terms as to the Court should appear equitable, it was held that the privilege in question was waived. So here the defendant, Ross, to whom the equity of redemption had been conveyed, and -who held the same in trust for Mrs. Johnson, and who was bound to protect her interest; having, by his answer, admitted the truth of the matters alleged in the bill, and consented to the passage of such decree in the premises, as to the Court might seem [488]*488right, has waived the privilege secured by the 125th section of the Code.
To this extent, we think he had the power to represent the interests of his cestui que trust, and she is bound by his act; and in the absence of any evidence of injury to her, or to the trust estate by his act, she ought not to be allowed to impeach it, or ask a reversal of the decree on that account.
2d. Is there sufficient proof of the publication of notice to non-resident defendants.
The Code, Art. 16, sees. 88 and 98, prescribes the kind of notice required, and the mode and time of giving it.
The ninety-eighth section provides, that “ the Court may order notice to be given by publication, in one or more newspapers, stating the substance and object of the bill or petition, and warning such party to appear on or before the day fixed in such order, and show cause why the relief prayed should not be granted, and such notice shall be published as the Court may direct, not less, however, than once a week, for four successive weeks, three months before the day fixed by such order for the appearance of the party.”
In this case, the Court’s order was passed, in conformity therewith, requiring the same to be “inserted in some newspaper published in Frederick, once a week for four successive weeks, before the 10th day of November, 1861,” and fixing the time for appearance of the parties on the 1st day of March, 1862.
The proof of publication, as it appears in the record, is as follows:
“Office of the Maryland Union,
“ Frederick City, Mb., April 3d, 1862.
“ This is to certify that the annexed order of publication, and notice to absent defendants in No.
Free access — add to your briefcase to read the full text and ask questions with AI
Baktol, C. J.,
delivered the opinion of the Court.
The decree from which this appeal was taken, was passed on the 4th day of April, 1862. On the 81st day of December, 1867, the appellants, Johnson and wife, filed their petition in the Circuit Court, alleging that the decree was obtained by mistake, which was not discovered by them until the day before the filing of the petition, and praying to be permitted to appeal. The facts alleged in the petition were verified by the oath of B. T. Johnson.
Upon this affidavit, under the ruling in Oliver vs. Palmer & Hamilton, 11 G. & J., 137, and Herbert vs. Rowles, 30 Md., 271, the appeal is properly before us, notwithstanding the lapse of time ordinarily prescribed by law for the prosecution of appeals from Courts of Equity. 1 Code, Art. 5, sec. 20.
In the body of the petition, among other things it is alleged that the petitioners, “ being within the belligerent lines of the Confederacy, and adhering to that side in the late civil war, no process or notice in fact was ever served on them, nor could it have been served, the bill having been filed, all the proceedings had, and decree entered, sale made and proceeds distributed, after war had commenced and before it ended, during ail which period all communication between the persons in Maryland and those in Virginia, within the Confederate lines, was prohibited by law.”
Upon this statement of facts, it has been argued by the appellants, that the right of the appellee to enforce her mortgage was suspended by reason of the appellants, Johnson and wife, having been alien enemies when the suit was instituted, and having so continued during the progress of the proceedings, and until after the passing of the decree. If this question were properly before us on [486]*486the present appeal, it would be set at rest by the decisions pronounced by this Court at the last terna, in the several appeals of John T. B. Dorsey against Kyle and others and against John T. W. Dorsey. In those cases it was held upon full argument and consideration, that the creditors of a party who is an alien enemy, may have the same remedy against his property, remaining within the jurisdiction of the State, as they could have against the property of any other non-resident debtor.
This question, however, is not properly presented by this appeal, and could not be raised by averments in the petition. The office of the petition and affidavit is simply to remove the objection growing out of the lapse of time since the decree, and to entitle the apellants to have the proceedings of the Circuit Court reviewed, in the same manner as if the appeal had been prosecuted within the nine months prescribed by law.
In disposing of the appeal, our attention must be confined to an examination of the proceedings as they appear upon the record, without reference to the new matter set out in the petition.
The questions arising upon the record are few and may ■ be briefly disposed of.'
The bill was filed on the 2d day of October, 1861, by the appellee, to enforce the payment of a mortgage of a ■house and lot in Frederick, executed and delivered to her by Bradley T. Johnson to secure $2000, being for balance of purchase-money due to her for the property. The mortgage debt was alleged to be due, and interest thereon from April 1st, 1861. On the 18th day of May, 1861, Johnson had conveyed the mortgaged property, together with certain other property, to William J. Ross, in trust for the benefit of his wife. The bill prayed for an order of publication against Johnson and wife, who were nonresidents of Maryland, and for subpoena against Ross. The defendant, Ross, appeared, and by his answer ad[487]*487mitted the truth of the matters charged in the bill, and “ submitted to such decree as might be right.” An order of publication against the non-residents was passed in the usual form, and upon the filing of a certificate setting forth that the same had been published in the manner to bo hereinafter more particularly mentioned, the Court, on the 4th day of April, 1862, passed a decree, pro confesso, against the absent defendants, and directed the mortgaged property to be sold to pay the mortgage debt.
The appellants claim a reversal of the decree upon two grounds:
1st. Because the decree directed the sale -without fixing a time within which the defendants might pay the mortgage debt and costs.
2d. Because there is no sufficient proof of the publication of the notice to non-residents as prescribed by the Court’s order, and required by law.
The first ground of objection to the decree is based on sec. 125, Art. 16 of the Code. In David vs. Grahame, 2 H. & G., 94, this Court in construing the third section of the Act of 1785, eh. 72, which is similar to see. 125, Art. 16 of the Code said, “ that although ordinarily the defendant is entitled to have a day given him to bring in the money on a decree for the sale of mortgaged premises, yet being for his benefit, he may waive it, if he pleases.”
And in that case, the answer having confessed the complainant’s claim, and consented to a sale for the payment of it, on such terms as to the Court should appear equitable, it was held that the privilege in question was waived. So here the defendant, Ross, to whom the equity of redemption had been conveyed, and -who held the same in trust for Mrs. Johnson, and who was bound to protect her interest; having, by his answer, admitted the truth of the matters alleged in the bill, and consented to the passage of such decree in the premises, as to the Court might seem [488]*488right, has waived the privilege secured by the 125th section of the Code.
To this extent, we think he had the power to represent the interests of his cestui que trust, and she is bound by his act; and in the absence of any evidence of injury to her, or to the trust estate by his act, she ought not to be allowed to impeach it, or ask a reversal of the decree on that account.
2d. Is there sufficient proof of the publication of notice to non-resident defendants.
The Code, Art. 16, sees. 88 and 98, prescribes the kind of notice required, and the mode and time of giving it.
The ninety-eighth section provides, that “ the Court may order notice to be given by publication, in one or more newspapers, stating the substance and object of the bill or petition, and warning such party to appear on or before the day fixed in such order, and show cause why the relief prayed should not be granted, and such notice shall be published as the Court may direct, not less, however, than once a week, for four successive weeks, three months before the day fixed by such order for the appearance of the party.”
In this case, the Court’s order was passed, in conformity therewith, requiring the same to be “inserted in some newspaper published in Frederick, once a week for four successive weeks, before the 10th day of November, 1861,” and fixing the time for appearance of the parties on the 1st day of March, 1862.
The proof of publication, as it appears in the record, is as follows:
“Office of the Maryland Union,
“ Frederick City, Mb., April 3d, 1862.
“ This is to certify that the annexed order of publication, and notice to absent defendants in No. 3002 Equity, was published in the ‘ Maryland Union,’ printed in Frederick, once a week for four successive weeks, prior to the 1st day of March, 1862. Smith & Cole.”
[489]*489Clearly, this certificate standing alone, is not sufficient proof of the publication as required by law, and prescribed by the Court’s order. This required the notice to be published for the period prescribed, before the 1st day of November, 1861.
The certificate states that it was so published before the 1st day of March, 1862, the day fixed for the appearance of the parties, while the Code requires the publication to be completed three months before that day.
By the agreement of the solicitors, the original certificate has been produced as a part of the record. That, however, does not differ from the copy appearing in the record, except that it has affixed to it a part of the newspaper, containing the Court’s order and notice.
At the bottom of the printed slip are the following letters and figures: “ Oct. 8, 4t,” which the counsel for the appellee has contended supplies the defect of the certificate, and proves that the publication was made according to the Court’s order. In support of this argument, it has been said that these marks mean “ October 3d, four times,” showing the date of the first insertion to be the 3d of October, and we are asked so to interpret them, and to infer that the publication was made during the four successive weeks next, after the 3d of October, 1861. .
But we are not at liberty to make any such inference in the absence of further proof on the subject. This Court cannot know officially the meaning of the printers’ marks at the foot of the advertisement. They most probably indicate merely the directions placed upon the advertisement in the printing office, when it went into the compositor’s hands, to indicate when and how often it was intended to be published, and cannot show that it was in fact so published. The certificate in plain terms states that the publication was made prior to the 1st day of March, 1862; this language is susceptible of but one interpretation, and cannot be construed to mean that it was made before the [490]*49010th day of November, 1861, as required by' the Court’s order.
To support the decree of the Circuit Court, affirmative proof of the publication of the notice to non-residents, according to the provisions of the Code, was indispensably required. This proof is not furnished, either by the terms of the certificate or by the printed advertisement annexed thereto.
It has been contended, on the part of the appellee, that this defect of proof is cured by the recital contained in the decree, “ that the order of publication had been duly published.”
In matters which are merely formal, that occur in the progress of a cause, it has been held that the recital of a fact in the body of the decree, in the absence of all direct proof to the contrary, will be taken as sufficient evidence of the truth thereof. Thus in Rigden vs. Martin, 6 H. & J., 407, and in Scott vs. Scott, 17 Md., 78, the statement in the decree that the cause stood ready for hearing, was held sufficient; and in Fitzhugh et al. vs. McPherson, 9 G. & J., 71, where the decree stated that an order pro confesso had been duly served, was considered sufficient evidence of the truth thereof, there being in the record no direct proof 'tp the contrary.
But those cases have no application to the present. Here the alleged error in the decree does not consist in the omission of any mere formal or preliminary proceeding in the cause, such as may be cured by presumption, or shown hy a recital in the decree. The objection to the decree involves the question of the power and jurisdiction of the Court. . To bind the non-resident deféndants, or to conclude their rights in a proceeding like this, the law requires that notice shall be given by publication as prescribed, and the proof that the law has been complied with must appear in the record. Minis vs. Minis, 3 J. J. Marsh., 105; Harris vs. Hardeman, 14 Howard, 339, 340.
[491]*491The non-resident defendants, Johnson and wife, were necessary parties to the cause, the latter as cestui que trust holding the equitable estate in the land subject to the mortgage, — and the former as her husband, she being a feme covert, was a necessary and proper party.
Being necessary parties, their interests and rights could not be concluded by a decree passed without notice to them, either by actual service of the process of the Court, or after constructive notice by publication, as prescribed by the Code.
A reference to the authorities has satisfied us that their rights in this behalf are not concluded by the admissions in the answer of Ross, the trustee and co-defendant.
The answer of one co-defendant is not to be received as binding another. Powles vs. Dilley, 9 Gill, 222; Jones vs. Hardesty, 10 G. & J., 415. The relation and office of trustee of Mrs. Johnson, held by Ross under the deed, could not authorize him to bind or surrender her rights and interests by his answer. He was not her agent, in the sense in which that term is ordinarily used, entitled to speak for her. Hill on Trustees, 316, 318, m ; 3 Hare, 69; 3 Howard, 407.
It follows, that if this case -were now to be finally determined upon the present state of the record, we should be compelled to reverse the decree of the Circuit Court, as having been passed without authority and jurisdiction for the want of notice to the non-resident defendants. And if reversed for such cause, all rights of the purchaser under the decree would necessarily fall with it; because being passed without jurisdiction it would be void, and no rights to the property could be acquired under it -which this Court could protect.
But it having been suggested in argument, that the notice was in fact duly published, and that proof thereof can be supplied, and it being considered equitable that an opportunity should be afforded to supply further proof in [492]*492that behalf in support of the decree, this Court, in accordance with the provisions of the Code, Art. 5, see. 28, will, without reversing or affirming the decree of the Court below, order the cause to be remanded to the Circuit Court, to the end that further evidence may be taken of the publication of the order and notice to non-residents, and that further proceedings may be there had, in accordance with the opinion of this Court.
(Decided 10th December, 1869.)
In case the proof of due publication of the notice shall be supplied, it will be competent for the. Circuit Court to pass a decree ratifying and confirming its former decree, and protecting the rights of the purchaser acquired under the sale made and reported in the cause.
And if such proof shall not be supplied, then the cause will stand as if no decree had been passed, and the defendants, Johnson and wife, will be allowed to appear, answer and defend the cause, and further proceedings shall be had therein according to the usual course.
Cause remanded.