Brown v. Gilmor's Exc'rs

Mason, J., delivered the opinion of this court. On the 28th of October 1853, Jonathan Meredith and John Spear Nichols, Esq’rs., trustees, under a decree of the High Court of Chancery, in the case of Gilmor’s Executors vs. Briens Executors, & others, offered at public sale on the ³²⁵ premises, in Washington county, amongst other property, a tract of land described in the advertisement thereof, “designated on the plat as Che Summer-House Farm,’ containing about six hundred and eighteen acres, and improved by a dwelling house and other buildings.” William Brown, the present appellant, became the purchaser thereof, at $10 per acre. The sale, with others made at the same time, was reported to the Hight Court of Chancery, and on the 6th of February 1854., that court passed the usual provisional order for the ratification of the sale, unless cause should be shown to the contrary, mi or before the 6th day of April 1854. On the 8th of March 1854, an order was passed by the chancellor, on the application of the present appellees, for the removal of the cause from the High Court of Chancery to the Superior Court for the city of Baltimore; and it is agreed between the counsel in this cause, although the record does not disclose the fact, that the papers in the said cause were not transmitted to the Superior Court until the 8th of April 1854, when the cause was first docketed in that court.

On the 12th day of April 1854, four days after the actual transmission of the papers in the cause, the sale to Brown was finally ratified by the Superior Court. On the 12th of May 1854, the appellant filed his petition in the Superior Court, setting forth a number of reasons why the sale should be set aside and himself released from the obligation of complying therewith, and concludes with the prayer, that the final order of ratification might be opened,, that the trustees answer the petition, See. The petition further alleges, and it is not denied, that on the day after the order for the removal of the cause was passed, and while the papers were still in the chancery court, the appellant applied to the register to receive objections to the ratification of the sale, but the register refused to receive or file his petition. The trustees answered the petition, and proof was taken in support of its allegations.

Upon final hearing the court below dismissed the petition, from which decree this appeal was taken. Under the 4th art. and 23rd sec. of the constitution, the ³²⁶ Court of Chancery ceased to exist on the 10th day of March 1854. The same section provides, “that no new business shall originate in said court after the ratification of the constitution,” which was on the first Wednesday of June 1851; and that the legislature should provide for the removal of undisposed of cases to the counties and city of Baltimore, “in such manner and under such regulations as may be deemed necessary and proper.” In pursuance of this last provision, the legislature passed the act of 1853, ch. 123. It was conceded by the counsel upon both sides, that the order of the chancellor of the 8th of March, providing for the removal of the cause to the Superior Court, was in strict compliance with the act of Assembly; and this court is of opinion, that the act itself was a legitimate exercise by the legislature of the power conferred by the constitution.

The case thus made presents two questions for this court to determine: the first is, whether the ratification of the sale was final and conclusive, in view of the circumstances under which it was made ? and if not, then secondly, whether the appellant has made such a case upon his petition and proof as to entitle him to the