Bolgiano v. Cooke

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. ³⁹¹ 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 ³⁹² 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 ³⁹³ 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 ³⁹⁴ 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