Marbury v. Stonestreet

Eccleston, J., delivered the following dissenting opinion. If the appellant is entitled to relief, I think it must be upon the ground of mistake, and not of fraud. Neither the averments in the bill nor the proof, present a question of fraud, either actual or legal, on the part of the trustee, but purely a mistake, in my opinion. If so, the party should have sought redress by a proceeding in the former cause, in which the sale was made, and not by an original bill.

In Pinkney vs. Jay and Mason, 12 G. & J., 83 , the doctrine is clearly announced, that an original bill is never proper to impeach a decree, except on the ground of fraud. And in Tomlinson vs. McKaig, 5 Gill, 277 , the Court of Appeals say, “before ratification, the sale must appear to be in all respects fair and proper, or ¹⁶³ it cannot receive the sanction of the court. But it is equally true, that after the sale has been confirmed, and after the term had passed, the proceedings are considered as enrolled, the court possesses no power over its decree to annul the same, except by bill of review for error apparant on tlie face of the decree, or for some new matter discovered since the decree, or by an original bill to annul the same for fraud. Final orders ratifying sales and auditor’s reports, in which the rights of parties are settled, are treated and considered in chancery proceedings as equivalent to decrees, technically such, and I see no reason why these orders can be impeached by any other mode than decrees can.

Indeed the language of Judge Archer in Tomlinson vs. McKaig, seems quite as applicable, in its immediate allusion to an order ratifying a sale, as to a decree, if not more so. Be this as it may, the reasoning in regard to decrees is equally applicable to orders of this sort. They are technically called decretal orders. I therefore cannot concur with my brethren in their views in regard to this case.

Le Grand, C. J., and Mason, J., agreed with Tuck, J. Case remanded. Tuck J., delivered the opinion of the court. It appears by the opinion filed in this cause, that the proceedings in the case, for the sale of James B. Pye’s estate, were before the court below when this decree was pronounced. They however form no part of the record, and cannot be treated by us as in the case, except so far as they are admitted by the pleadings.

The record being defective in this and other respects, the case will be remanded for further proceedings, according to the views of this court. 11 Gill and John., 342. We agree with the court below, as to the character of the representation contained in the notice of sale. Where land is sold in gross, for a sum certain, upon a statement of the number of acres, quantity must be regarded as a material consideration with the vendee. If there be other inducements to the purchase, they should be shewn.

We are not to suppose that a person will give as much for 530 acres of land, as he would pay for 669, of the same quality. This property was advertised as c‘containing, by survey, 669 acres,” There was no qualifying expression, such as more or less, by estimation, &c., to intimate to the public that a positive declaration as to quantity was not intended. On the contrary, the particularity of the number, and the words, by survey, indicated that the contents had been ascertained by the most accurate method. The authorities shew, that the exhibition of a plat is equivalent to an averment of the quantity of land. ¹⁵³ And. we find that relief has been granted, where the deficiency was much less than in the present instance.

It is difficult to understand wdiy this statement was made at all, except that the trustee, believing that the land comprised that number of acres, designed to offer the quantity as an inducement to purchasers. It was more than a mere description of the property. If this sale had been made by the appellee, in his own right, relief could not be refused. In the case of Hill vs. Burkley, 17 Ves., 401, it is said, “when a misrepresentation is made as to the quantity, though innocently, the right of the purchaser is to have what the vendor can give, with an abatement out of the purchase money, for so much as the quantity falls short of the representation.

That is the rule generally, for although the land is not bought or sold professedly by the acre, the presumption is, that in fixing the price regaid was had by both parties, to the quantity which both supposed the estate to consist of. The demand of the vendor and the offer of the purchaser, are supposed to be influenced in an equal degree, by the quantify which both believe to be the subject of their bargain. Therefore a ratable abatement of price, will probably leave both parties in nearly the same relative situation, in which they would have stood, if the true quantity had been originally known.” This doctrine is recognized, and approved by Judge Story, in 4 Mason, 417 . We are aware of no reason why the same principle should not be applied to sales made by a court, whose duty it is to protect those who deal with it in good faith.

In such cases, equity is done by making compensation out of the unpaid purchase money. 2 Har. and Gill, 350, 358. It makes no difference whether the party making the statement, knew it to he false or not, provided it be of something forming a material inducement to the purchase, and by which the other party was misled to his injury. “The gist of the enquiry is, not whether the party making the statement knew it to be false, hut whether the statement, made as true, was believed to be true, and therefore, if fake, deceived the party to whom it was made.” 6 Gill and John., 58. 1 Md. Chan. Dec., 498. 1 Story, 195 . ¹⁵⁴ The counsel for the appellee contend, that there is no rule by which this equity can be adjusted in the present case, because there were marl, timber, and fisheries, with a view to which the purchase may have been made. There is no proof of their value, nor that they formed any inducement with the appellant in making the purchase.

That is part of the appellee’s case, and should be made out by him. Such qualities of an estate, may be important in ascertaining the deficiency to be allowed. The purchaser is not always entitled to a ratable deduction per acre. Other considerations besides the mere value of the soil, are often highly estimated in purchases of land, and are proper to be regarded in making compensation, in cases of this kind.

This right is not without an equivalent to the vendor, for if the vendee gets substantially that for which he bargains, equity will compel him to take an allowance for deficiency. Consequently all circumstances that give value to the property, must be taken into the account. Battee on Contracts, 67 L. L., 85. 10 Ves., 506. 17 Ves., 402. Various objections have been urged, with much force, on the part of the appellee, to the form of the proceedings, want of parties and of proofs, which it is necessary to consider.

It is said that the appellant should have sought his relief by a different form of proceeding, and that an original bill will not lie in a case like the present, unless the sale be impeached for fraud. We have not been referred to any case in which it is said that a purchaser cannot, after ratification and enrolment of the order, claim a deduction for so much as the land falls short in quantity, by original bill or petition. If the deficiency be known before the ratification, the party should proceed by petition, and there are circumstances under which a bill of review would be necessary. The practice, however, has not been uniform, as a notice of the cases will shew.

In Weems vs. Brewer, 2 H. & G., 390 , a purchaser filed his petition, more than two years after the final confirmation, and after he had passed his bonds to the trustee, in compliance with the terms of sale, asking to be discharged from his con ¹⁵⁵ tract, on the ground of recently discovered equities, affecting the title. It was objected that he should have proceeded by original bill; but the late chancellor said that “there were many precedents, and that it had long been the practice to proceed by petition.” In Brown vs. Wallace, 4 Gill and John., 483, it appears, from the chancellor’s statement of the case, that William Cole, one of the purchasers, sometime after the confirmation of the sale, was allowed, on petition, a deduction for deficiency in the lot purchased by him. The Court of Appeals did not revise the chancellor’s opinion in Weems vs. Brewer, on this point of practice, but affirmed his decree on the merits. And the sale to Cole was not before that court, on the appeal in Brown and Wallace.

They are entitled to respect, however, as precedents in chancery, because of the learning that distinguished the late chancellor in all matters affecting the history and practice of his court. In Ridgley vs. McLaughlin, 3 Har. and McH., 230, a bill was filed by a purchaser in chancery, to vacate the sale, on the ground that the defendants, the alleged owners of the land, had no title thereto ; and relief was granted, although the sale had been ratified, and there was no allegation of fraud. But in Hollingsworth vs. McDonald, 2 H. & J., 230 , a bill of review was held to be necessary. Certain property said to belong to Thomas Parkin, had been sold to pay his debts, under a decree in a cause in which Hollingsworth and wife were defendants.

After the ratification it was discovered, as was alleged, that the estate was not the property of Parkin, but belonged to Mrs. Hollingsworth, (one of the defendants in the original suit, and a complainant in the case now referred to,) and they sought to vacate the sale. The court said that they should have proceeded by bill of review, or original bill, charging fraud, to set aside the original decree. The validity of the sale depending on the correctness of the decree, it was necessary to examine into its merits, and in that way get rid of the sale. We have also been referred to the case of Jay and Mason vs. Pinkney, 12 Gill and John., 69.

There one of the defendants — not a purchaser — sought to set aside the decree, ¹⁵⁶ and the court held, that for that purpose, an original bill was never appropriate, except when the decree is impeached for fraud. It is to be observed, that in these cases the purchaser was not asking to be relieved against his contract, but the party defendant to the original cause was seeking relief against the decree; not because of any infirmity in the sale, but on account of error in the decree itself. The case of Prize vs. Glenn and Stewart, is not in point. The complainant filed an original bill against trustees in chancery, to recover a distributive share of the proceeds of sale in another cause.

The chancellor intimated that the regular course to enforce the order ratifying the distribution, was by petition in the case in which the audit was made, in which we fully concur. There is also a class of cases somewhat analagous to the present enquiry, in which the same want of uniformity is observable, viz: applications to vacate the enrollment of decrees, which is to set aside the decree. In Burch vs. Scott, 1 Gill and John., 393, a bill was filed for this purpose, but in Oliver vs. Palmer and Hamilton, 11 Gill and John., 143, relief was granted on petition. From these cases it appears, that there has been no settled practice on these subjects.

If the decree which authorises the sale, and lies at the foundation of the purchaser’s title, may be vacated by original bill, or by a more summary proceeding, on the ground of surprise or mistake, it seems difficult to assign a satisfactory reason for not permitting a sale to be enquired into, in the same manner, for the same or similar causes. It is ascribing to the order confirming the sale, a .higher dignity than to the very decree under which the trustee makes the sale. And to apply this reasoning to the present case, it may be said, that the inconsistency is more manifest when the vendee, instead of setting aside the sale, only-asks that he may not be required to pay for more than he gets. In such a case the purchaser does not ask that he may be discharged from complying with his contract.

He claims an equity, growing out of a subsisting agreement,