Claude v. Handy

Boyd, J., delivered the opinion of the Court. The bill was filed in this case by the appellee against the appellant and the executors of L. T. H. Irving, alleging that Elizabeth C. Harwood died, intestate, in February, 1886, seized and possessed of certain real estate in Anne Arundel County, leaving the appellant and D. Claude Handy her only heirs at law, each of whom became thereby seized and possessed of one undivided moiety of the said real estate-It further alleged that D. Claude Handy died in May, 1889, leaving a last will and testament, by which he devised all his interest in it to the appellee and charges that said real estate was susceptible of partition ; that a portion of it was encumbered by an overdue mortgage debt of four thousand dollars to L. T. H. Irving, who departed this life in 1892, and that William H. Dashiell and Florence Irving were his executors. The appellant filed an answer, in which he admitted most of the material allegations in the bill, but denied that the property was susceptible of partition, and by way of cross-bill, alleged that the farm called “ Willow Glen ” would havfe to be sold forthwith to pay the mortgage debt thereon, and that “ the property remaining after said sale of said farm is susceptible of no practicable division that would not work injustice to one or the other or both the joint owners thereof,’ ’ and then prayed the Court to pass a decree ordering the sale of the whole real estate involved in the suit and a division of the proceeds. Soon after the answer was filed the appellant and appellee filed a petition stating that in any event it ²³³ would be necessary to sell the “ Willow Glen ” farm, which was encumbered by the mortgage above referred to ; that the executors of L. T. H. Irving had filed their answer asking that it be sold and consenting to a passage of a decree therefor, and prayed that the sale of that farm be ordered by the Court without further delay.

The same day, June 17, 1893, a decree was passed appointing the solicitors for the respective parties, trustees to make said sale. Testimony was commenced in the early part of December, 1893, by the examination of the complainant, who testified as to the heirs of Dr. Dennis Claude, the father of the appellant and grandfather of her husband, from whom part of the property descended, and filed with the examiner various deeds vesting the title in her husband and the appellant. She stated that the property held by them as co-tenants consisted of a farm called “ Town Hill,” one called “ Willow Glen,” vacant lots in Annapolis near St. John’s College, houses and lots on South street, and one on Gloucester street, Annapolis. Three witnesses produced by her testified that they knew the property and thought it was susceptible of partition.

The appellant and Mr. Dennis Claude were of a contrary opinion. On February 7th, 1894, after the testimony was concluded and the day before it was filed, the complainant obtained leave to amend the bill, so that the first paragraph would conclude, “ leaving the defendant, Abram Claude, and D. Claude Handy * * her only heirs at law, each of whom became thereby seized and possessed of one undivided moiety of the real estate mentioned and described in the exhibits in this case” instead of “ leaving the defendant Abram Claude and D. Claude Handy * * her only heirs at law, each of whom became thereby seized and possessed of one undivided moiety of said real estate,” as it was originally in the bill. On February 15th, 1894, the defendant filed a petition asking the Court to rescind the order authorizing the amendment. On hearing the petition it was dismissed, but leave was granted to the defendant to answer, plead and demur to the amended ²³⁴ bill and to both parties to take further testimony.

An answer was filed admitting in substance most of what the former answer had, but alleging that “ the real estate mentioned .and described in the exhibits filed ” is not all the real estate of which the heirs at law of Elizabeth C. Harwood became possessed by her death, but that part of it had been sold, etc. A demurrer was also filed to a portion of the bill but subsequently withdrawn and an agreement made that the question of partition or sale of the property be submitted on the testimony and exhibits already filed. On May 7th, 1894, a decree was passed directing a partition of the real estate (excepting “ Willow Glen ” farm, which by agreement had already been decreed to be sold), and the issuance of a commission in the usual form to five persons named. A report signed by all the commissioners was returned to the Court, in which they stated that they, after having taken the oath annexed to the commission and having given notice to the parties of the time and place of meeting, did meet on the land and premises mentioned in the commission, caused the same to be surveyed and divided into two parts as directed, by Louis Green, one of their number, a competent surveyor, and allotted to Mrs. Handy house No. 73 Duke of Gloucester street, at $3,500.00; six houses on South street, at $1,500.00, and the (Town Hill) farm, in the first election district, at $1,471.00, making in all $6,471.00, and to Dr. Abram Claude lots on College avenue and St. John street, at $6,471.00. • The appellant excepted to the report and award of the commissioners for the following reasons : 1st, because the commissioners were not legally sworn in or qualified; 2d, that the decree directed a partition of only a portion of the real estate of which Mrs. Harwood died possessed and claimed by the parties to the suit; 3rd, that the commissioners only partitioned and awarded a portion of such real estate ; 4th, that the “ Willow Glen ” farm was not included in the report and award of the commissioners or in the decree of the Court; 5th, that there was an unpaid debt due ²³⁵ by the estate of Mrs. Harwood and there could be no legal partition until it was paid—that the farm “ Willow Glen ” was not yet sold and the personalty had been exhausted ; and, 6th, that the award and partition are grossly unequal, unjust and unfair. We have thus stated more at length than was perhaps necessary the proceedings in the case, but as in the argument there seemed to be some misapprehension of the condition of them, so far as disclosed by the record, we deemed it proper to thus refer to them.

Before discussing the exceptions to the report and award of the commissioners, we will briefly consider the prior proceedings. It is stated in the brief of the appellant that the amendment to the bill authorized by the order of February 7th, 1894, was never in point of fact made. We do not so understand the record. The first paragraph of the bill, as printed in the record, concludes in the identical language of the amendment as proposed in the petition of the complainant and authorized by the Court.

The petition of the defendant (Dr. Claude) to have the order granting leave to amend rescinded, shows that the bill had been amended and he answered and demurred to it. The exhibits mentioned in that paragraph of the bill were filed with the examiner and as above stated it was agreed by the parties that the demurrer be withdrawn and the case submitted to the Court on the question of partition or sale upon the testimony and exhibits already filed. It is doubtful whether there was any necessity to make the amendment, for while Mrs. Harwood owned exclusively part of the real estate, she, the appellant and D. Claude Handy owned as tenants in common the rest of it and by her death the other two became thereby the owners of all the property. From the original bill it could be easily gathered that all the real estate which she owned herself, or as tenant in common with the defendant and Dr. Handy, that had not been sold, was intended to be disposed of, and the original answer and cross-bill of the defendant confirms this view, as they asked to have the whole real ²³⁶ estate involved in the suit sold, and the testimony taken refers to all the property now in controversy.

But the amendment allowed was clearly within the power of the Court, and when it was represented to it that the defence and conduct of the case of the defendant would have been different had the bill as amended been originally filed, it very properly gave leave to the defendant to answer it and take additional testimony, which was not done by reason of the agreement spoken of. It is also contended that the bill is multifarious in that it joins a prayer for partition with one for sale of the real estate under a mortgage, and Belt v. Bowie, 65 Md. 350 , is relied on to sustain that position. That case is wholly different from this. Thefe the complainants owned the mortgage on the property which had been given by their ancestor, and they sought to have the property sold for the purposes of partition and to foreclose the mortgage.

This Court held that the bill was ihultifarious because it contained two separate and distinct subjects-matter in respect to which relief was prayed—partition and the enforcement of the mortgage. The bill in this case did not seek such relief, but its object was to have the property partitioned, and in the event of its being held to be not susceptible of partition, then to have it sold and the proceeds divided between complainant and defendant, after payment of the mortgage debt. The object of making the executors parties was evidently to bind them by the decree, as was done in Thruston v. Minke, 32 M d. 571. But as already stated, the only demurrer to the bill was withdrawn by agreement of the parties.

It is also urged that the interlocutory decree directing the partition was not sustained by the proof, as the bill only prayed for the partition of the real estate of which Mrs. Harwood died, seized and possessed. What we have already said sufficiently states our views on that subject. This brings us to the consideration of the exceptions to the report of the commissioners. The first was not urged in this Court.

We find no evidence in the record as to how ²³⁷ the commissioners were sworn, but assuming that they followed the authority given by the commission, which authorized any one or two of them to administer the oath, it was in accordance with what has been the long established practice in this State. Alexander’s Chy. Pr. 324. It would perhaps be a better practice to require in the commission the oath to be administered to all of the commissioners by a justice of the peace or some other officer authorized by law to administer oaths, as they can now be more conveniently reached than when the other practice was first adopted, but