Brundige v. Morrison

GIrasox, J., delivered the opinion of the Court. It appears from the proceedings in this cause that the furniture and other personal property in what is known as the Highland Park Hotel, was sold by the appellees to Charles H. Brundige, for the sum of twenty thousand dollars, and that the sale was ratified by the Circuit Court of Baltimore City. The purchaser having made default in executing notes for the payment of the purchase money, died, and the appellant took out letters of administration upon his personal estate. She having failed to meet the payments, a petition was filed in the Circuit Court praying the passage of an order for a re-sale of said personal property; and upon this petition an order was passed requiring the appellant to bring into Court the balance of the purchase money, five thousand dollars thereof having been paid by Brundige during his life-time, by a day' named in the order, or to show cause to the contrary.

A copy of this order was served on Samuel H. Taggart, the solicitor of record of the appellant, and no cause having been shown by her, on the 23rd day of March, 1876, the time for showing cause was extended to the 17th day of April of the same year. No cause having been shown, the Court passed an order dated 16th day of May, 1876, directing the appellees to sell, at the risk of the appellant, the furniture and other personal property in said hotel, for the payment of the purchase money thereof with interest and costs, in the manner directed by the original orders in the case, for one-third cash, and the balance in six, twelve, eighteen and twenty-four months after date with interest thereon. On the same. day the appellees reported a sale of said property, at private sale, to Erancis P. Stevens, for $12,000, and in their report stated the reasons inducing them to make said sale, and ⁴¹¹ that the price obtained was a fair one. On the same day the sale was ratified, without the usual publication of notice to parties to file exceptions.

On the first of August following, the appellant filed a petition alleging, among other things, that the order requiring her to pay the balance of the purchase money, or show cause to the contrary, had been served on Samuel H. Taggart, who was then acting as her attorney, but that she did not comply with said order, because she had no means whatever, and was utterly without means to do so ; that the order for the re-sale was passed without further notice to her, and that the report of sale was made and the sale ratified immediately, and that she had thereof no other notice than such as might arise constructively from the facts set forth in the petition, and that the order of sale was in violation of her rights, and prayed that the sale to Brundige might be declared null and void, and might be rescinded; and that the order of the 16th day of May, 1816, might be rescinded so far as it affected her, and that the receivers might be directed to pay her the five thousand dollars, the amount of the cash payment made by Brundige on his purchase. An answer to this petition was filed by the appellees; testimony was taken, and the Circuit Court was of opinion that the order of ratification of the sale to Francis P. Stevens, should not have been passed without the assent of, or notice to, the appellant, and a day was accordingly given her to show why the order of ratification should be annulled, and upon its being annulled, such relief granted her as equity might require. The appellant afterwards filed a paper in the cause, stating that owing to the peculiar nature of the property, and that Francis P. Stevens, the purchaser, took immediate possession thereof, and that Charles H. Brundige never took possession of it, it was impossible for her to show any other or further cause, why the sale should not ⁴¹² have been made at her risk, or at the risk of his estate, than already shown. Upon the filing of this paper, the Circuit Court passed an order dismissing her petition, and from said order this appeal was taken.

It appears from the record, that Samuel H. Taggart was counsel for the appellant, and that the petition and the order requiring the appellant to bring the balance of the purchase money into Court was served upon him, and as no answer to said petition was filed, no cause to the contrary shown, nor the money brought into Court, as • required by the Court’s order, the subsequent order of the Court directing the furniture, &c., to be re-sold at the appellant’s risk, was regular and proper. But it was contended that, as no advertisement of the re-sale was made, as required by the Court’s order, and as there was no publication of an order of ratification nisi, the rights of the appellant could not be affected by such sale and its ratification, and that they amounted to a rescission of the former sale to Brundige, and that the appellant thereby became entitled to have thé cash payment of five thousand dollars,'made by Brundige, refunded. The proof shows the appellant’s counsel was consulted by the appellees, as to the propriety of a private sale to Stevens, and that while he declined to enter into a written consent to the sale to him, for the sum of twelve thousand dollars offered by Stevens, he approved of the private sale to him for the sum offered, and stated that no objection would be made to such sale. It was accordingly made and reported to the Court, the report stating the Substance of the interview between the appellees and Mr. Taggart, as well as the reasons why in their judgment such sale would be most advantageous and beneficial to the estate, and the sale was ratified finally on the same day on which it was reported.

The report of sale was made under oath, and the facts therein must, in