Kelly v. Gilbert

Robinson, O. J.j delivered the opinion of the Court. The complainants having furnished to the defendant, the owner, all the lumber used by him in the ejection of ten brick dwelling-houses situate on the southwest side of Madison avenue, this bill was, on. the 11th of November, 1891, filed on behalf of themselves, and on behalf of all other mechanics’ lien claimants, for a sale of the property to pay and satisfy said liens. It alleges that the defendant, by reason of his financial embarrassments, was unable to proceed further with the erection of said houses, — that other persons claim to have mechanics’ liens against the property, their names and the amount of said claims, being unknown to the complainants; and that, in addition to these liens, certain creditors of the defendant, all of whom are named and made parties defendants, have obtained judgments against him, but that these judgments are subject and subordinate to the lien claims of the complainants, and of all other persons having mechanics’ lien claims against the property. The bill further alleges that, the owner having abandoned the houses, with no one in charge of them, they are exposed to the elements, and are liable to vandalism, thereby subjecting the complainants and other lien claimants to loss and injury; and that, in view of the fact, that the property must necessarily be sold-to pay the lien claims against it, they pray that a receiver or receivers may be appointed to take charge of the property, and that a decree may be passed at once for the sale of the same, and the proceeds thereof may be distributed among the parties entitled, according to their respective rights and priorities.

They also pray that ⁴³⁵ the writ of subpoena be issued for the judgment creditors named as parties defendants. On the same day the bill was filed, the defendant Robinson, the owner, appeared voluntarily and filed his answer, admitting the allegations of the bill, and consenting to the appointment of receivers, and a decree for the sale of the property; and on the same day an order or decree was passed for the sale of the property. It thus appears that both the bill, and the answer of the owner were filed, and the decree was passed, all on the same day, and before the other defendants had an opportunity to appear and show cause, if any they had, why a decree should not have been passed. The authority of the Court to pass the interlocutory order or decree for the sale of the property in question, is based upon section 192 of Article 16 of the Code, which provides that, “In all cases where a suit is instituted for the sale of real or personal property, or where from the nature of the case a sale is the proper mode of relief, the Court in its discretion may order a sale of the property before final decree, if satisfied clearly by proof that at the final hearing of the case, a sale will be ordered, and order the money arising from such sale to be deposited or invested, to be disposed of as the Court shall direct by the final decree.” “The plain intent and object of this provision,” we have heretofore said, “is to empower the Court, in any case coming within its operation, to order a sale before the rights of the parties have been determined by final decree.

The operation and effect of such an order is not to settle or adjudge the rights of the parties, but to convert the property into money when the Court is satisfied that a sale will ultimately be decreed, and shall, in its discretion, consider such a course necessary for the preservation of the property, and the protection of the rights and interests of the parties litigant.” Dorsey’s Lessee vs. Garey, 30 Md., 489 . ⁴³⁶ And we have also said, that the power thus conferred “is one of an extraordinary character, and should never be exercised except in very plain and unquestionable cases. * * * And even in the most pressing cases, where it is practicable or possible, all parties who- may be affected by the sale, should have an opportunity to be heard, and to show cause against it, before the order is passed. Otherwise, great injustice might frequently be done in the exercise of this power, which was intended to be exercised not for the benefit of one party only, but for the benefit and protection of all concerned." Cornell & Johnson vs. McCann and others, 37 Md., 99. Now, in this case the property sold consisted of ten bride dioellingJiouses, and the decree was passed solely upon a bill filed by one lien claimant, and the answer of the defendant the oioner of the property, and before the other defendants against whom subpoena was prayed, had the opportunity to appear and answer, although they all resided in the City of Baltimore, and within the jurisdiction of the Court. We cannot agree that the bill, and answer of the owner, under such circumstances, furnish such proof as the statute requires.

To so hold would be to put it in the power of one lien claimant, and the owner to procure a decree by collusion for the sale of the property, to the prejudice and injury of other claimants; and, if an appeal had been taken from the order or decree for the sale of the property, we should have had no