Earle v. Turton

Bartol, J., delivered the opinion of this Court. If the proceedings in this case under which the decree In question was passed, had been instituted under the Act of 1785, ch. 72, there could he no question as to the jurisdiction of the Court to pass tho decree. See Tomlinson vs. McKaig, 5 Gill, 256 , and Billingslea vs. Baldwin and Wife, 23 Md. Rep., 85 . The Code, however, in conferring jurisdiction upon the Chancery Courts in such cases, does not exactly pursue the words of the Act of 1785, and tho proceeding being instituted since the adoption of the Code must he governed by its provisions.

We concur with the Judge of the Circuit Court In the opinion that tho jurisdiction and authority of the Court below to entertain the bill, and to pass the decree, must be .sought exclusively in the 99th section of the 16th Article. The 36th section is inapplicable, and the 56th section cannot be so construed as to alter or enlarge the jurisdiction •of the Court in a case like this, beyond the terms of the .99th section. That provides, “The Court may decree a partition of any lands, &c., on the bill or petition of any joint tenant, tenant in common, or any parcener, or any eoncurrentowner, whether claiming by descent or purchase; orifit appears that the said lands, &e., cannot be divided without loss or injury to the parties interested, the Court may ³⁴ decree a sale thereof, and a division of the money arising-from such sale among the parties according their respective rights.” This section, applies, among others, to a case like this where some of the parties are-of fall age and some are infants. The hill avers that the complainant is entitled to have partition of the land among the parties interested, and charges “that it will be for the interest and advantage of all the parties interested-, and especially of the minor heirs-, that the lands he sold and the proceeds divided among the parties as they are respectively entitled, and the shares of the said minors invested in some productive fund for their benefit.” The hill then prays that the land may be decreed to he sold, and also for general relief.

Under the decision in Tomlinson vs. McKaig, we are warranted in saying that this hill may he considered as a bill for partition, as such the Court plearly had jurisdiction of the cause, and under the prayer for general relief might have decreed a partition, although not specifically prayed. Or upon proof that the land could not be divided without loss and injury -to the parties, could have decreed a sale. The objection therefore to the ratification of the sale, based upon a supposed want of jurisdiction,, is not supported. According to our construction of the 99th section of the 16th Article, to justify the Court in passing a decree of sale in such case, it ought to he satisfied by- the proof that the land cannot he divided without loss or injury to the parties-interested.

In this case no proof whatever was offered'to establish that fact, and the objection that the decree was passed without proof is urged by the appellant as a reason why the sale ought not to be ratified. The want of proof of a material fact to support the decree-renders it liable to he hereafter impeached by the infants upon a hill of review, filed after they shall have attained full age, or by prochein ami during their infancy. And ³⁵ we think this presents a sufficient ground upon which the ¡nurchasor ought not to he compelled to pay the purchase money and accept a deed from the trustee. In Glenn vs. Clapp, 11 G. & J., 10 , it was said “hut if, while the fund is yet in Court, the purchaser is disturbed in his possession, or