Mumma v. Brinton

Fowler, J., delivered the opinion of the Court. The appellants sued the appellees in ejectment to recover a piece of property in Baltimore City. The case was tried before the Court without a jury, and during the course of the trial the defendants, for the purpose of showing title in themselves, offered in ¹⁹⁹ evidence the record of the proceedings in a cause in chancery. The plaintiffs objected to the introduction of this record in evidence, and asked the Court to rule that neither the decree nor any of the proceedings were admissible for the purpose for which they were offered.

This objection was overruled and the testimony admitted, and the judgment being for the defendants, the plaintiff's have appealed. It will be necessary, therefore,-to examine these chancery proceedings in order to ascertain whether the Circuit Court of Baltimore City had jurisdiction of the parties and the subject-matter, for if so, none of the alleged irregularities will nullify the decree under which the appellees claim. The bill or petition was filed in the year 1867 by John 1). Mumma, an infant, by his next friend.

It alleged that John D., Susan and Sarah Mumma, all infants, were seized of the lot of ground in question, as tenants in common, subject to the right of dower in the same of their mother; that it will be for the benefit and advantage of said infants that a decree be passed for the sale of said lot, and for the investment of the proceeds in some productive fund for their benefit. The prayer is for the sale of the property, distribution of the proceeds, according to law, and for general relief. All the infants, including John D. Mumma, in whose name alone the petition appears to have been filed, were made defendants, and duly summoned. They all answered the petition by guardian ad litem, duly appointed or assigned as then authorized by law and the general practice.

Testimony was taken, and it appears by agreement of counsel that three witnesses testified in effect to the value and extent of the property; that the improvements consisted of a dwelling house which was in bad condition; that the land was not susceptible of division among the parties without loss or injury, and that it would be for the ben ²⁰⁰ efit and advantage of the parties that the land should be sold and the proceeds re-invested. Ao decree for sale was passed, the property was sold, and the only-question presented is, whether this decree is valid and binding’. It was contended on the part of the appellants that the power of the Circuit 'Court to pass the decree, must be found, if it has any legal foundation at all, in section 99, Art. 16 of the Code of 1860. But we cannot agree to this view.

Wé think, looking at the general frame of the bill, and at its most material allegations it is, and was intended to be, an appeal for the exercise of that salutary power conferred upon Courts of equity by sections 36 and 37 of the Article of the Code just referred to. These sections will be found in our present Code as sections 48 and 49 of Article 16 — - and section 36 provides for the sale of the property of any kind owned by an infant, if such sale shall be for the benefit and advantage of such infant, and if the provisions of section 37 shall be complied with. Section 37 is as follows: “No decree for sale shall pass under the preceding section, but upon the petition of the guardian or prochein ami of such infants, and the appearance and answer of such