Columbia Paper Bag Co. v. Carr

Burke, J., delivered the opinion of the Court. By a decree of the Circuit Court Eo. 2 of Baltimore City, passed in the case of Christina Kaiss and others v. Edwin C. Kaiss and others, the fee simple property mentioned in the proceedings in that case was decreed to be sold, and the appellees on this record were appointed trustees to make the sale. They sold the property at public auction to the appellant, and reported the sale to the Court. An order of ratifi ⁵⁴³ cation nisi, was passed, to which exceptions were filed by the purchaser.

It also filed a petition asking for an abatement of the purchase price. Testimony on the exceptions and the petition was taken in open Court, which dismissed the petition for an abatement, overruled tbe exceptions, and ratified the sale. This appeal is taken from those orders. The qirecise grounds upon which the appellant relies to vacate the sale are stated in the exceptions which are here transcribed: First.

Because tbe proceedings herein are irregular and insufficient, and not in accordance with the legal requirements for a sale of the property in these proceedings under the decree herein. Second. Because the property advertised and sold hereunder, by tbe trustees herein, is not the same to he sold by them under the decree in these proceedings. Third.

Because the property advertised and reported as sold to this exceptant sets forth that the same runs along Lawrence street, and could he changed from its present use so as to have frontage on Lawrence street, when in fact it does not so run and' said change could not he- made. Fourth. Because a strip of ground eighteen feet nine inches, lying between this property and Lawrence street was advertised and sold as being open and for public use, when in fact said strip is private property. Fifth.

Because the property in these proceedings to be sold under the said decree is of much less value and less desirable than the property advertised for sale and sold by said trustees as set forth in said report of sale. Sixth. And for other reasons io he set forth at the hearing of these exceptions. This Court has announced in many cases the principles which control it in passing upon exceptions to trustees sales.

It is said in Bolgiano v. Cooke, 19 Md. 375 : “Trustees appointed by decrees of a Court of equity, to sell real estate, are agents or instruments of the Court; sales made by them are transactions between tbe Court and tbe purchasers, and ⁵⁴⁴ as such, are regulated by all the principles of equity applicable to judicial sales. Glenn v. Clapp, 11 G. & J. 1 ; Duvall v. Speed, 1 Md. Ch. 229 ; Goldsborough v. Ringgold, Ib. 239; Perrin v. Keithley, 9 Gill, 412 . Before the ratification of a sale made by authority of a Court of equity, all objections within these limits are open for consideration. The sale will be set aside upon proof of error, mistake, misunderstanding or misrepresentation as to the terms or manner of the sale; and it must appear to be in all respects fair and proper, or it can not receive the sanction of the Court.

Tomlinson v. 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 ‘caveat emptoF applies to all such sales. Farmer’s Bank v. Martin, 7 Md. 342 . A purchaser discovering a defect of title, at a proper time, may be relieved from his purchase by asking a recission of the sale.

Duvall v. Speed, 1 Md. Ch. 229 ; Kauffman v. Walker, 9 Md. 229 . When a Court can see injustice will be inflicted by the ratification of a sale upon a party not in default, the sale should not be ratified. Penn v. Brewer, 12 G. & J. 113 .” It is said in Kaufman v. Walker, supra, that “Judicial sales will not be set aside for causes that the parties in interest might, with a reasonable degree of diligence, have obviated. Every intendment will be made to support them.

But where the Court can see that injustice will be inflicted by the ratification of a sale upon a party not in default, by reason of the carelessness or omission of its own officer, it should interfere to prevent it.” We will consider the questions raised on this record in the light of these authorities. By deed dated August 15th, 1881, the Baltimore and Ohio Railroad Company acquired title to the lot of ground located at the southeast corner of Eort avenue and the east side of Lawrence street. This lot had a frontage of eighteen feet nine inches on the south side of Ebrt avenue, and ran par- ⁵⁴⁵ all el on the east side of Lawrence street for the distance of five hundred and ninety-five feet. The railroad company appears to throw this strip open to public use.

There are three railroad tracks on Lawrence street. The distance between the property sold and the east track is about twenty-eight feet, in which distance is included the eighteen feet nine inch strip acquired by the railroad company, the whole of which space is open and used by the public, and is apparently a part of the public highway, and has been so used, without obstruction or hindrance of any sought, for more than twenty years. The property sold was formerly owned by W. C. Kaiss who died intestate in May, 1909. He acquired title to the property under a deed, which was filed as part of the bill in the above case, from John J. Myer, trustee, and others, dated June 6th, 1888.

This deed described the property as “being also at the distance of eighteen feet and nine inches southeasterly from the corner formed by the southwest side of Fort avenue and the southeast side of Lawrence street, and running then eastwardly binding on the southwest side of Fort avenue one hundred and fifteen feet and six inches, thence southwesterly at right angles to Fort avenue seven hundred and forty-five feet, more or less, to a point where formerly the middle of a creek or marsh, thence northerly binding along the middle of said creek and on ground formerly belonging to J. S. Gitlings’ estate, one hundred and seventy-five feet, three inches, more or less, to intersect a line drawn from the beginning southwesterly at right angles to Fort avenue, and thence reversing said line and binding thereon northeasterly six hundred and twenty feet, more or less, to the beginning.” A diagram is here inserted which shows the location of the property. ⁵⁴⁶ The trustees offered the property for sale at public auction on the premises on November 1st, 1910, and at this sale the appellant, acting through its superintendant, John Mcllvain, who was also one of its directors and authorized to bid, became the purchaser of the property for the sum of sixteen thousand, six hundred dollars. Immediately after the sale Mcllvain signed a memorandum of purchase in these words: Baltimoee, November 1st, 1910. I have this day purchased at public sale, for the sum of sixteen thousand and six hundred /00 dollars, upon the terms and conditions as annoiinced by the auctioneer at said sale, viz: one-third cash, balance in 6 and 12 months, or all cash, at purchaser’s option, the fee simple property known as S. E. Port Ave. & Lawrence St., and more particularly described in the annexed advertisement. J. McIlvane.

Witness: Sam. W. Pattisok.” ⁵⁴⁷ At the time of the sale this property was used as a coal yard, in which an extensive coal business had been conducted for a number of years. It was improved by a coal switch, and over head trestle, a large two-story brick stable, shedding, office building, and a sawmill. There was a board fence on the west side of the lot, along the eastermost line of the eighteen feet nine inch strip owned by the railroad.

There was a gate way in this fence used by wagons going from the street to an from the coal yard. There is no dispute as to the situation and surrounding conditions at the time of the sale, and for many years prior thereto. We find as a fact that there was attached to the contract or memorandum of purchase, above set out, at the time it was signed by John Jfcllvain the following advertisement of sale, being the one upon which the trustees had agreed, after careful consideration, contained' an accurate and proper description of the property for the purposes of advertisement. Trustees’ Sale oe Valuable Fee Simple Property, Situate 18 Feet 9 Ikches East From the Corker of Fort Avekue akd Lawrekce Street.

By virtue of a decree of the Circuit Court ISTo. 2 of Baltimore City, the undersigned trustees will sell at public auction, on the premises, on Tuesday, the 1st day of November, 1910, at 3 o’clock P. M., all that valuable lot of ground in fee simple in Baltimore City, beginning on the ^outhwest side of Fort Avenue 18 feet 9 inches southeast from the corner formed by the intersection of the southwest side of Fort Avenue and the southeast side of Lawrence Street, and thence southeasterly on the southwest side of Fort Avenue 115 fe^t, 6 inches; and running thence southwesterly at right angles with Fort Avenue 745 feet, more or less, to a point where was formerly a middle of a creek or marsh; and running thence northerly binding along the middle of said creek and on the ground formerly belonging to J. S. Gittings’ estate 170 feet, 3 inches, to intersect a line drawn from the beginning at right angles with Fort Avenue; and thence reversing said line northeasterly 620 feet, more or less, to the place of beginning; the strip 18 reet 9 inches, lying between Lawrence Street and this property is ⁵⁴⁸ open and used by the public. Improved by a fine coal switch and overhead trestle, running from the southernmost side of the property towards Fort Avenue; large two-story