Hardy v. Leager

Brune, C. J., delivered the opinion of the Court. The purchaser of one of four tracts of land sold pursuant to a decree of the Circuit Court for Queen Anne’s County appeals from an order of that Court overruling his exceptions to the sale and ratifying and confirming the sale. The appellees are the original complainant, upon whose bill the sale ⁵⁶⁷ was decreed, and the trustee appointed to make the sale. (There is a similar appeal pending involving another tract sold pursuant to the same decree, Sause v. Leager, No. 182, October Term, 1956.

Argument of that case has been deferred pending the decision of this. ) Under the will of their grandfather and upon the death of their mother in 1942, James E. G. Leager, the complainant, and his late sister, Katherine P. Leager, became the owners, in equal shares, in fee simple, of the four tracts here involved. In 1943, Katherine P. Leager died leaving a will (1) devising and bequeathing all of her property to her brother, James E. G. Leager, for life, and (2) after his death, making sundry pecuniary bequests and devising and bequeathing the residue of her property (a) to her brother’s children living at the time of his death, in equal shares, or (b) if he should die leaving no “heirs” surviving him, then, in equal shares, to the children of four named first cousins who might be living at the time of the brother’s death. At the time of filing his bill for the sale of the real estate, James E. G. Leager was thus the owner in fee of a one-half undivided interest therein and of a life estate in the other half. The respondents named in the bill are the only child of the complainant, an infant, the children—all infants'—of three of the named first cousins, the fourth of those cousins, who had no child (and whose interest is not clear), two churches and three individuals who were pecuniary legatees and the widow and son of a pecuniary legatee who had predeceased the testatrix.

It is stipulated that: all parties interested in the real estate who were in being at the date of the decree for sale were parties to the cause and were duly summoned; that all of the infant respondents answered the bill in usual form through guardians ad litem, duly appointed; that none of the adult or corporate respondents answered the bill; and that a decree pro confesso was duly passed as to each of the adult and corporate respondents. The bill briefly described each of the three farms and the ⁵⁶⁸ wood lot involved in the case, gave title references, and referred to the wills of the complainant’s grandfather and of his sister, copies of which were filed as exhibits and the pertinent parts of which have been set forth above, stated the complainant’s interest in the four tracts and identified the individual respondents (other than the pecuniary legatees). By paragraph 7, it alleged: “That the said real estate is of such nature that it will not admit of being divided among the parties entitled thereto, as aforesaid, without loss or injury to said parties, and that in order to make division of said interests, it will be necessary that said real estate be sold, and the proceeds thereof divided amongst the parties according to their several interests.” This paragraph states the only grounds alleged for making the sale. The prayers were for: (a) a decree “for partition by the sale of said real estate;” (b) for the appointment of a trustee “to carry out said sale and partition;” (c) for the appointment of a trustee “to administer the proceeds derived from the undivided one-half interest passing under the will of Katherine Philamonea Leager, deceased, according to the terms” thereof; and (d) for other and further relief.

The bill is evidently framed with Section 170 of Article 16 of the Code (1951) in view, and the ground alleged for the relief sought is stated virtually in the words of that Section. The decree of sale directs that “the real estate described * * * be sold for the purpose of partition.” The purchaser’s exceptions to the sale are based upon the grounds (1) that the sale does not comply with Section 264 of Article 16 of the Code (1951), providing for sale for reinvestment, so as to bind possible after-born remaindermen and (2) that under Section 170 the Court did not have jurisdiction to order a sale which would bind possible after-born remaindermen. In an opinion incorporated in the order overruling the purchaser’s exceptions, the trial court took the view “that the right of partition is paramount to the interests of unborn persons interested in the real estate” and that in the instant case it was unnecessary to comply with the provisions of * * * Section 264 * * The court also stated that: “This court did find, however, * * * that the proposed sales would be ⁵⁶⁹ advantageous to all parties interested in said real estate whether in being or not, prior to and as a prerequisite of its decree for sale of said real estate; and the court is still of the same opinion.” The bases for this finding were: first, that the evidence showed that some buildings on each of the improved parcels were in only fair and some were in poor condition, and that there was little or no marketable timber on the wood lot; and second, that so long as an undivided half-interest in the improved properties continued to be owned “under * * * the will of Katherine P. Leager, it would be impractical or impossible to replace buildings as necessary without applying to the court to encumber the property.” The right of a cotenant to a partition in kind of real estate, if feasible, existed and continues to exist, independent of any statute. Section 170 of Article 16 of the Code is derived in part from Section 12 of Chapter 72 of the Acts of 1785, in part (and for present purposes more importantly) from Chapter 311 of the Acts of 1831, and in part from other statutes.

The statute did not impair the previously existing right of partition, but added another means of attaining separate enjoyment — that is, by sale “where the interest of all the parties requires that mode of partition.” Campbell v. Lowe, 9 Md. 500; Johnson v. Hoover, 75 Md. 486 , 23 A. 903 ; Miller, Equity Procedure, Secs. 393-397, 428. Prior to the adoption of a statute conferring such power, a court of equity could not order a sale and distribute the proceeds, and it was to remedy this situation that the statute was passed. Dugan v. Baltimore, 70 Md. 1, 6 , 16 A. 501 ; Roche v. Waters, 72 Md. 264, 271, 19 A. 535 ; Miller, op. cit, Sec. 397. There is no challenge to the right of the complainant as the owner of an undivided one-half interest in fee in these four tracts to such a partition by sale under Section 170 of Article 16.

(See Tolson v. Bryan, 130 Md. 338 , 100 A. 366 , where the complainant had a similar ownership, but had no interest in the other undivided one-half, and Billingslea v. Baldwin, 23 Md. 85 , where holders of a reversionary interest were held entitled to a partition by sale of the reversion on a bill brought during the existence of a life estate in the property owned by another person.) The complainant’s right to a ⁵⁷⁰ partition may be conceded to exist, notwithstanding the interest of possible unborn remaindermen, and to that extent, to be “paramount” to their rights. The rights of all persons who are parties to the proceeding, including those who are represented, may be transferred by a sale, and the interests .of the possible unborn remaindermen in the proceeds of sale may be protected under the prayer of the bill and the decree in conformity therewith providing for the appointment of a trustee to hold one-half of the proceeds for the benefit of the persons entitled thereto, under the will of the complainant’s sister, Katherine Leager. That, however, only leads us to the question whether or not the interests of possible unborn remaindermen are bound by the decree of sale. Prior to the passage of Chapter 156 of the Acts of 1862, which was somewhat amended by Chapter 273 of the Acts of 1868 and as so amended constitutes Section 264 of Article 16 of the Code (1951), “courts of equity in this State had no jurisdiction to give to a decree the effect of binding the interests of parties not then in being, there being no such authority under the general powers of chancery courts nor by statute.” Miller, Equity Procedure, Section 411; Downin v. Sprecher, 35 Md. 474 ; Shreve v.