Gregory v. Lenning

Alvey, J., delivered the opinion of the Court. The bill filed in this case is an original hill, in the nature of a bill of review, seeking to impeach and have vacated a decree for the sale of real estate which belonged to infant defendants, upon the ground of alleged fraud and irregularities in the proceedings upon which the decree was founded, and also to impeach and have vacated the order of ratification of the sale made under the decree, for alleged fraud in the sale itself. The hill under which the proceedings took place, that are now sought to be impeached, was filed under Art. 16 of the Code, sec. 36, which provides that where an infant is entitled to any real or personal property, &c., the Court may, if it shall appear to be for the benefit and advantage of such infant, decree a sale thereof, if the provisions of the next succeeding sections of the same ⁵⁴ Article of the Code he complied with. And by the next succeeding section, it is declared that no decree for sale shall pass, under the preceding section, hut upon the petition of the guardian or prochein ami of such infant, and the appearance and answer of such infant, hy guardian to be appointed hy the Court, and proof hy the deposition of at least two discreet and respectable witnesses, who shall state in their depositions the value and quantity of the property, and the facts and circumstances which show that it would he for the benefit and advantage of. the infant that the decree for sale should he passed.

It appears that John Gregory died in 1873, intestate, and was seized of certain real estate at the time of .his death; that he left two infant children as his heirs-at-law, and also a widow, Barbara Gregory, surviving him; that the widow became guardian to the two infant children, and afterwards intermarried with one John Lenning; and that shortly thereafter she filed a hill, as guardian of the infants, in the Circuit Court for Baltimore County, for the sale of the real estate, under the provisions of the Code just stated, making herself and the two children defendants. The hill alleged that it would he for the benefit and advantage of the infants that the real estate should he sold, and the proceeds invested. The infant defendants answered hy guardian, and the widow also answered, admitting as true the allegations of the hill. After proof taken, a decree for sale was passed in December, 1875, and the real estate was sold thereunder,-by a trustee, in February, 1876, and the sale was duly reported to and ratified hy the Court.

The purchaser, of the property was John Lenning, the husband of the mother and guardian of the infant defendants. The property was subsequently sold hy Lenning to Michael Forrester, and the purchase money, due from Lenning, was all fully paid before the filing of the present hill. After the decree and sale, both of the infant chil ⁵⁵ dren died, and the present complainants claim to he their heirs-at-law, and as such entitled to impeach the proceedings under which the real estate was sold. They filed their hill against Lenning and wife, and Michael Forrester, praying that the proceedings might be reviewed, and the decree reversed and set aside, and that the sale of the real estate might be vacated and annulled.

There could be no doubt of the right of the infant defendants, if they were living, to impeach the decree, if proper grounds were alleged and shown for such impeachment. And any substantial cause, such as fraud in obtaining the decree, or the non-observance of those requirements prescribed by the statute to confer jurisdiction to pass the decree; or, indeed, as it has been-said, any matter that clearly shows that an improper decree has been made against an infant, though not obtained by fraud, collusion, or surprise, may be made the ground for impeaching the decree by original bill in the nature of a bill of review. Mitf. Eq.

Pl., 113, 114; Sto. Eq. Pl., secs. 426, 427; Bank U. S. vs. Ritchie, 8 Pet., 128 . For can there be any question of the right of the complainants, as privies in blood to the deceased infant defendants in the original decree, to take advantage of and urge as ground of objection to the decree, any matter that would be open and available to the infant defendants if they were living and taking proceedings against the decree themselves.

Whittingham’s Case, 8 Co., 42b; Levering vs. Heighe, 2 Md. Ch. Dec., 81, 88. It is not, however, any mere irregularity that can be made available as ground of impeachment by such bill; nor is it matter of complaint against the decree of sale that no day was given the infant defendants, after coming of age, to show cause against the decree. Fo purchaser under the decree could be expected to incur such hazard to his estate.

Booth vs. Rich, 1 Vern., 295; Bennett vs. Hamill, 2 Sch. & Lefr., 566; Mills vs. Dennis, 3 John. Ch., 367. And it ⁵⁶ is only where there is want of jurisdiction in the Court tó pass the decree, or there is fraud or collusion in obtaining it, in which the purchaser participated, or had notice thereof, or where proper parties are not made, that he can he affected hy proceedings to reverse or vacate the decree. Lloyd vs. Johnes, 9 Ves., 37, 65; Bennett vs. Hamill, supra; Elliott vs. Knott, 14 Md., 121, 134 .

In the hill filed