Cornell v. McCann

Bowie, J., delivered the opinion of the Court. Two cases,— William H. Dunkinson vs. Lucien Birdseye and Daniel McCann vs. Wm. H. Dunkinson, et al., pending in the Circuit Court for Saint Mary’s County, as a Court of Equity, were by a decree of that Court, dated the 8th of September, 1874, consolidated, and the injunction previously issued, restraining the execution of the decree in the case of Dunkinson vs. Birdseye, dissolved ; “and whereas it appeared that the amount required to he paid in the latter case, remained unpaid, and the decree unexecuted,” it was decreed that Messrs. Benjamin G. Harris, David S. Briscoe and T. Wallis Blakistone, Esqs., he appointed trustees in the place and stead of the trustees appointed by the said decree, and that they proceed to execute the said decree upon certain terms prescribed.

In the event of the non-payment of certain sums in said decree mentioned, it was decreed, that the real estate in the proceedings mentioned, be sold by the trustees thereby appointed, in the manner prescribed by the said decree, in the said cause of Dunkinson vs. Birdseye, as modified thereby, and upon the terms thereby prescribed ; and that the proceeds of any sale, which may he made either under said decree, or under this decree, shall be brought into Court to he distributed in the following manner: ⁵⁹⁵ After the payment of costs, commissions and expenses, the net proceeds of sale of that portion of the said real estate, which is not covered by the said decrees under which Birdseye became the purchaser, and the deed from Hall to William H. Allen, and the deed from said Allen to said Birdseye, shall be applied: 1st, to the claim of D. McCann, assignee of E. G. W. Hall, amounting to $17,389.46, with interest from 16th March, 1869. 2ndly. To the payment of the claim of Wm. H. Dunkinson, as established by his decree, amounting to $20,878.33, with interest from 1st of' March, 1869, (if the said claim should not have been previously paid,) and the claim of Cornell & Johnson of $20,000, with interest from the 27th November, 1865 — the said claims of Dunkinson, and Cornell & Johnson to receive a ratable proportion of the residue of said proceeds of sale, if the same should not he sufficient to pay the whole. 3rdly. To the payment of the claim of Cornell & Johnson for advances to Birdseye amounting to $22,876.51, with interest from 1st January, 1870. “The proceeds of sale of the remaining portion of the said real estate, which is covered by the said decrees and deeds, under which Birdseye acquired title as aforesaid, shall he applied: ’ ’ 1st.

To the claim of Dunkinson, amountingto$20,878.33, with interest from March, 1869, and to the claim of Cornell & Johnson, amounting to $20,000 — with interest from 1st January, 1871, (or so much of said claims as remain unpaid after application of the proceeds of sale of the other portion of the estate,) to he paid ratably. 2nd. To the other claim of Cornell & Johnson, of $22,876.51, with interest from the 1st of January, 1870. 3rd. To the claim of D. McCann, assignee of Hall, of $17,386.46, with interest from 16th March, 1869. ⁵⁹⁶ . Other provisions, not material to he considered, being made, the decree in conclusion directs, “ In order to ascertain the relative values, respectively, of the said two portions of the said real estate as aforesaid, as affected by the relative claims and liens thereon respectively ás aforesaid, in case a sale of the said real estate should he necessary, the said trustees should first offer the said portions of the said real estate separately, and then, if they should deem the same advisable, they should offer the whole together for an advanced price, and report to the Court the same respective amounts as offered for the said two portions of the said real estate, as well as the whole amount for which the whole may be sold, in order to enable the Court to ascertain what proportions of the proceeds of sale shall be considered as arising from each portion of the said real estate, respectively." The trustees advertised the property for sale, and on the 14th of May, filed their report, in which they state among other things, that having given bond with sureties as required, and given due notice of the time, place, and terms of sale, they did pursuant to said notice, attend at the Court House door, at Leonardtown, St. Mary’s County, on the 23rd of March, 1816, at the hour named, and then and there proceeded to offer said real estate as follows, to wit: “In the first place, said trustees proceeded to offer at public auction, to the highest bidder, the lower fifty acres of the ‘Point-Lookout’ property, the real estate decreed to be sold, exclusive of the hotel and grounds attached thereto, and received a hid for the same, of $13,000, that being the highest hid therefor, which bid was reserved.

The said trustees then offered ,in the same manner, the balance of the said real estate, consisting of the whole of the ‘ Point-Lookout ’ farm, and the hotel and grounds, which had been excluded from the lower fifty acres, as aforesaid, ⁵⁹⁷ and they received a hid for the same, of $10,000, which was the highest hid therefor, which bid was also reserved. And the trustees then offered the whole of said real estate for sale, upon the terms prescribed hv the decree, and received a bid for the same of $22,500.” The trustees believing the sum of $22,500, below the value of the property, withdrew the whole, and re-advertised the same, upon the same terms and conditions, in the same papers, to he sold in the City of Baltimore, at the Exchange Sales Rooms, No. 55 Second Street, at 1 P. M., on the 6th of May, 1816. At the time and place last mentioned, they offered at public auction to the highest bidder, upon the terms mentioned, the lower fifty acres of said property, “ exclusive of the hotel and grounds thereon situated,” and received a bid from Daniel McCann, of $24,000, being the only bid therefor, which was reserved. The trustees then offered upon the same terms and conditions, the balance of the said real estate, consisting of the remainder of the said “ Point-Lookout ” property, “inclusive of the said hotel and grounds attached thereto, and they received for the same, a bid of $4000 from Charles N. Black, of New York City, this being the only and highest bid received therefor, which was also reserved.” The trustees then offered, upon the same terms and conditions, the whole of said real estate mentioned in these proceedings, and sold the same to Frank Hume3 Esq., of Washington, D. C., for the sum of $30,300, he being then and there the highest bidder therefor.

The usual order nisi having been passed and duly published, and no cause shown to the contrary, the Court on the 6th of June, 1816, ratified the sale finally. On the same day, an order was passed, referring the case to the auditor, directing him to state an account, ⁵⁹⁸ distributing tbe proceeds of sale among the parties entitled, according to their respective interests as established by the decree ; and authorizing the auditor to take proof as to the value of the respective portions of the estate, for the purpose of ascertaining the proportion of the proceeds to he distributed to .the respective liens. Daniel McCann filed his petition, praying this order might be rescinded, because it was contrary to the terms of the decree. Thereupon, on the 26th June, 1876, the Court passed an explanatory order, reserving the rights of all parties and all questions arising under said order.

Exceptions were filed by McCann to all the testimony taken by the auditor under these orders. The auditor, under these orders, stated three Accounts, A,B and C. In Account A, after deducting costs and expenses, ‘ ‘ in accordance with the testimony taken as to the relative value of the different portions of the property covered by the conflicting claims,” he allowed One-fourth of the balance to Daniel McCann, and his assignee. Three-fourths of the balance to Dunkinson and Cornell and Johnson, in prop'ortion to the amounts of their respective claims. Account B, stated in accordance with instructions from the solicitors of McCann, allowed to the different lien holders, á proportion of the net proceeds of sale, according to the amounts hid for the different portions of the property at the sale thereof.

Account C, stated in obedience to instructions of the solicitor for Dunkinson and Pomeroy, distributed the proceeds of sale between Dunkinson’s assignee and Cornell and Johnson. Upon the petition of the trustees, (in consequence of the inadvertent omission of certain expenses,) these Accounts ⁵⁹⁹ were remanded and reformed, and Accounts D, E and F were reported in their stead. Account D being upon the same principle as A. ti u it et it JJ it tt 11 it it Q McCann filed exceptions to Accounts A, C, D and F. On the 28th of September, 1816, these exceptions were set down for hearing on the 16th of November then next, with leave to any of the parties in the meantime, to take testimony before the auditor, to be used at the hearing. Under this order, the record of the cause in the Circuit Court for St. Mary’s County, as a Court of equity, in which Peter P. Smith was complainant and Thomas Johnson, defendant, was filed by the solicitor of Dunkinson as evidence.

McCann excepted again to all the testimony taken, by the auditor, as inconsistent with the terms of the decree, and to the introduction of the record of Smith vs. Johnson, as not in evidence when this case was decided hy the Court of Appeals. Cornell, survivor of Johnson, excepted to Accounts D, E and F for several reasons, the second and fourth of which are only material. 2nd. Because Accounts D and E distributed to McCann and his assigns, an amount of proceeds greater in proportion to the amount allowed the exceptant and other parties in interest, than the property covered by McCann’s lien bears to the property covered by the liens of the exceptant and other parties in interest. 4th. Because the value of the land upon which McCann claims to have a lien, cannot be estimated, for the reason that the said land has not been and cannot be located.

Pomeroy, assignee of Dunkinson, joined in the second, third and fourth exceptions of Cornell, and further excepted to Accounts D and E, because the auditor should have allowed him, as assignee of Dunkinson, his whole ⁶⁰⁰ claim, after deducting costs, etc., instead of