Hopkins v. Roberts

Bowie, J., delivered the opinion of the Court. The question presented hy this appeal is, whether a sale reported hy the appellees, as trustees, to the Circuit Court for Prince George’s County, in the matter of the real estate of Anne Elizabeth Wootton, deceased, should he ratified ? The deceased, hy her last will and testament, dated the twentieth of November, 1866, duly executed to pass real estate and admitted to probate hy the Orphans’ Court of said county, devised and directed, that when certain mortgage debts therein mentioned should become due, if they should become due during the life of her mother, Daniel Clarke, as trustee, and her brother, Eichard Wootton, should, in their discretion, have power to sell and convey so much of the real estate of which the testatrix died seized and possessed, as might he necessary to pay the said mortgage debts, or to raise hy mortgage upon the said ³¹⁴ real estate executed by them jointly, such sum as should be necessary to discharge the mortgage debts. Messrs.

Clarke and Wootton, by virtue and in pursuance of this power, reported to the Circuit Court for Prince George’s County, on the thirteenth of January, 1874, a sale of two hundred and eight and a quarter acres of land to John P. Hopkins, the appellant, for $5606.95, which sale was finally ratified and confirmed. Mr. Clarke having died in the interim, on the twelfth of April, 1878, Messrs. Wootton and Roberts filed their report in the said case, setting forth the preceding matters and sale, and further reported : “ That the aforesaid sum of money not being sufficient for the payment of the mortgage debt, as well as a certain judgment debt due by the said Anne Elizabeth Wootton to a certain John T. and Richard Hardesty, the said Daniel Clarke and Richard Wootton did, on or about-February, 1875, sell unto the said John P. Hopkins another portion of the real estate of the said Anne Elizabeth Wootton, containing fifty-nine and one-half acres, at and for the sum of $22.50 per acre, amounting in the whole to $1338.75 ; that the said John P. Hopkins paid to the trustees, on account of said purchase, the sum of thirty dollars in cash, and took possession of said portion of said real estate last sold, and has been in possession thereof since that time, receiving and appropriating to himself the issues and profits therefrom, but has failed, to the present time to pay any further portion of said purchase money; that since said sale, on or about the first of May, 1876, the said Daniel Clarke died, before having reported, together with the trustee, Wootton, the sale for ratification. The trustees, therefore, deeming said sale advantageous to said estate, recommend the same to the Court for ratification.” On this report, an order of ratification “nisi” was passed.

The appellant filed an answer to the petition and report of the appellees, and replying to that portion, in regard ³¹⁵ to the alleged second sale, denied that he ever afterwards purchased another portion of said real estate of the late Daniel Clarke and said Richard Wootton, trustees, as alleged in said petition and report; further answering, he said that Mr. Wootton, one of the trustees, being indebted to him in a large sum of money, and he being desirous to secure the same, it was agreed between Wootton and himself, that he should take another portion of the land of the testatrix, (of which Wootton held the reversion in fee,) in satisfaction and payment of Wootton’s debt to him, and Wootton promised to procure Clarke’s assent to the arrangement; that Clarke afterwards refused to sanction it; that Clarke never regarded the pretended sale as binding, on the trustees, or on the respondent, and, therefore, never reported the same to the Court for ratification; that the pretended sale, was never reduced to writing, nor any written memorandum made of the same, signed by any of the parties, and it is, therefore, void under the Statute of Frauds, which the respondent pleaded, and relied upon, against its ratification and enforcement; that he entered into possession of the land, in pursuance only of the contract and terms of purchase