de Murguiondo v. Hoover

Irving, J., delivered the opinion of the Court. The facts essential to the proper understanding and decision of this case, are, briefly, as follows: Victor De ¹¹ Murguiondo, being the owner of one-fifth undivided interest in some ground rents and reversions in Baltimore City, and twenty acres of land in Baltimore County, on the 30th of April, 1885, mortgaged his undivided fifth interest in the whole property to Elias Livezey, to secure twenty-three hundred and fifty dollars. Upon the tenth of the June following, Victor De Murguiondo filed his bill in the Circuit Court for Baltimore City, against the owners of the remaining undivided interests, alleging the indivisibility of the property, and asking for a decree for its sale. Livezey, (Victor’s mortgagee,) and Benjamin F. Horwitz, trustee for some of the parties (who were infants,) were made parties defendants.

Process went out for the defendants, all of whom appeared and answered. Testimony was taken, and the case went to decree, which was passed on the sixth of July, 1885, for the sale of all the property. The Baltimore City property was sold and reported to the Court; but the Baltimore County property, viz., the twenty acres of land here involved, was not sold. It seems this land was offered for sale, and afterwards Avas withdrawn.

Subsequently, Benjamin F. Horwitz, the trustee named in Livezey’s mortgage to sell on default, (and also trustee named in the decree for the sale of the whole property,) filed his bond in the Circuit Court for Baltimore County, as required by laAv in such cases, and advertised Victor De Murguiondo’s one undivided interest in the twenty acres in Baltimore County and proceeded to sell the same, i. e., Victor De Murguiondo’s one-fifth interest therein, and on the 11th day of December, 1881, did sell the same to Daniel Hoover for §2500.00; and on the 28th of July, 1888, conveyed by deed, duly acknoAvledged, the ‘ ‘ one undivided fifth interest ’ ’ therein to Daniel Hoover. The deed describes the interest sold as “one undivided interest” in the land, Avhich is described by metes and bounds, courses and distances. ¹² Daniel Hoover’s bill, now under consideration, is for partition. It alleges that partition can be made fairly and equally between the parties- interested, and is very desirable. It sets out all the facts hereinbefore recited; and, as amended by leave of the Court, avers that no part of the record of the proceedings in Baltimore City, under which decree was obtained for a sale of the undivided projDerty, including the twenty acres noAv sought to be divided, up to the time Avhen the plaintiff received his deed, had been recorded in Baltimore County; and that at the time of the plaintiff’s purchase and the conveyance to him by B. E. Honvitz, trustee, he had no notice of the alleged proceedings by Avhich decree was secured for the sale of the land mentioned in the plaintiff’s bill; and that the property Avas then situated in Baltimore County, and only became a part of Baltimore City by virtue of the Act of 1888, ch. 98.

To the bill, as amended, the respondents demurred. 1. Because the interest of the plaintiff does not entitle him to file his bill.' 2. Because the bill is multifarious; and 3. Because the proceedings in the case of Victor De Murguiondo vs. Benj.

F. Horwitz, et al., set out in the bill can not be reviewed in this way. The Circuit Court of Baltimore City overruled the demurrer and from the order so ruling, this appeal was taken. 1. By express description, in his deed and its recitals, the plaintiff took an undivided interest in the laud; and unless that interest had already been changed, by decree in the former case, into a right to share in the proceeds of sale it ordered, he has standing to maintain this bill; and that depends upon the effective character of that decree Avhich the last ground of demurrer is designed to raise, and does raise. 2. As to the question of multifariousness, Ave need only say, we do not think the bill liable to that objec ¹³ tion.

The relief prayed for in respect to partition, could not be secured if that decree in the former case effectively and finally determined, that the property now-sought to be divided, should be sold. In making this application for partition, it was eminently proper to state the fact of the former decree. The relief, as to it is, as the Court below states, only auxiliary. With the fact of such decree before it, and all the facts connected with it, the Court could formally decree that those proceedings were not a bar to a decree for partition sought by this bill, or by decreeing partition, notwithstanding those proceedings, and without any declaration respecting them, necessarily and irresistibly imply that the decree was not effective for want of jurisdiction or other valid reason.

If those proceedings had not been set out in the bill, or had been ruled out on demurrer under the 17th Equity Rule, the defendants would have been compelled to set up that decree as a bar to the application for partition; and thus the plaintiff would have been driven to reply want of notice, and failure of the Baltimore Court to acquire jurisdiction; and then the respondents would have demurred and the qiiestion would have arisen in that way; and it would have been identically the same question. The bill does uot seek relief in respect to two entirely different subjects; and two decrees would not be necessary to effect relief. The question is, simply, can and shall jjartition be granted P If the first decree is effective the relief must be denied; if not it will be granted. 3. This brings us to the main question involved, viz'., whether the former decree effectually bars the plaintiff from maintaining this bill.

This is not a bill of review or in the nature of a bill of review, and therefore much of the appellant’s argument needs no allusion. It is a simple bill for partition, with incidental statement of the proceedings and decree which appellant’s solicitors ¹⁴ contend are fatal to the plaintiff's bill for partition, and which the plaintiff contends are not in the way of the relief he asks, because he contends he had no notice such as the law requires, and, in fact, no knowledge of them, when he purchased and took his deed.' The question is one of jurisdiction. Section 72 of Art. 16 of the new Code, provides that "all proceedings for any partition of real estate, to foreclose .mortgages on land, or to sell lands under a mortgage, or to enforce any charge or lien on the same, shall be instituted in the Court of the county, or city of Baltimore where such lands lie; or, if the lands lie partly in one county, and partly in another, or partly in one county and partly in the city of Baltimore, then such proceedings may be commenced in either county, or in the city of Baltimore; provided, that, in case of any sale of lands under a decree of a Court in any county where part only of the lands lie, a copy of the bill, decree and trustee’s report of sale, and, in case of partition of real estate, a copy qf the bill and the final decree of partition, certified under the official seal by the clerk of the Court in which the proceedings were commenced, shall be filed in the clerk’s office of the Court of the county, or of the city of Baltimore, where any other part of such lands shall lie; and on receipt of such copies by the clerk of such Court, it shall be his duty forthwith to docket and index the said bill and other proceedings in his chancery docket, and to record the same as though said cause had originated in his Court.” The demurrer admits th<e allegation of the bill, that, although nearly three years had elapsed, from the decree in Baltimore City, when the plaintiff purchased, and got his deed for one-fifth undivided interest in the land, up to that time there had not been, and was no record in Baltimore County of the proceedings in Baltimore City; but the demurrant insists that it was not necessary to record the proceed ¹⁵ ings until after a sale should be effected, and that the law only provides for such record after sale made and reported. The language of the statute is “in case of a sale,” and not “after any sale/'' and the appellee contends that it means, that where a sale is contemplated by the proceedings, the record of such proceedings is provided for, and that the reason for requiring such record requires that a contemporaneous record, or as nearly as may be, should be had of each part of the proceedings which the law requires should be recorded in the county where the lands lie.

The manifest object of the statute supplies the key to its interpretation; and it ought to be construed so as to give effect to the intention of the Legislature, and to prevent the mischiefs which were provided against, in making these conditions of jurisdiction. Evidently, the Legislature meant to provide for notice to all who might treat with the owners or apparent owners of the land for the sale, lease or loan on mortgage of the exact condition of title. The design was clearly the same as underlies the registry laws, and was supplemental of them. To accomplish this , end that which the law requires to be done as a condition of jurisdiction ought to be done with reasonable promptness, and at least, before the property is sold to an innocent purchaser in utter ignorance of any proceeding-affecting the title.

It ought to be done as promptly as practicable. The diligence needed in the record of deeds, to protect against subsequent transactions in ignorance of the deed given, should also be required here. The deed or mortgage first recorded takes precedence, if there be no actual knowledge of the other conveyance. Subsequent creditors dealing with the grantor in ignorance of a conveyance are protected even if the deed is not recorded within six months.

It has always and frequently been decided in this State that the object of our laws for the registry of deeds and ¹⁶ mortgages was to prevent abuses and deceits growing-out of pretended titles. Nelson vs. Hagerstown Bank, et al., 21 Md., 57 . As we have said, the Legislature manifestly had the same object in view in making the provision under discussion. It was intended to keep people advised of proceedings taking place in a place or county where the lands did not lie and which affected the lands where they did lie.

The statute fixes no time within which it shall be done. But in harmony with the rule which obtains in the registry of deeds and mortgages, and to secure