Onderdonk v. Onderdonk

McWilliams, J., delivered the opinion of the Court. There are eight Onderdonks. In common they own a 6.29 acre lot at the northeast corner of Joppa Road and Bellona Avenue in Baltimore County. Around the turn of the ⁵⁶⁴ century the lot was improved by a 20 room frame dwelling now somewhat the worse for wear, tear and neglect.

Alexandrina, who is 66, wants to sell the property; Barbara, 49, Anna, and Phillip have agreed; Robert, 53, and John, 65, do not object; James, 59, and William, 56, do object. The ages of Anna and Phillip are not mentioned but it is possible to ihfer they are between 55 and 60. On 16 September 1971 Alexandrina filed a bill for the sale of the property in lieu of partition. On 22 November James demurred. 1 On 23 November William demurred. 1 Judge MacDaniel set 2 February 1972 as the day for the hearing.

Both demurrers were overruled. On 28 and 29 February James and William (appellants) demanded the particulars of the bill of complaint. Alexandrina excepted. On 15 March the appellants moved to dismiss Alexandrina’s exceptions to their demands for particulars.

On 10 May Judge Turnbull denied the motions to dismiss the exceptions and he sustained Alexandrina’s exceptions. On 23 May the appellants each filed a motion for the production of certain documents, a demand for written instruments, a motion for a better statement of particulars, and a motion for a rehearing of the order of 10 May. Alexandrina moved for a decree pro confesso against the appellants on 26 May. James answered the motion on 7 June, William on 19 June.

A hearing on all pending motions was scheduled for 8 June before Judge Turnbull. At the request of James the hearing was postponed to 26 June. The hearing was again postponed to 10 July. On 11 July Judge Turnbull denied all motions and demands including Alexandrina’s motion for a decree pro confesso.

The appellants were ordered to answer the bill of complaint on or before 17 July. James answered on 12 July, William on 17 July. The case was scheduled for trial before Judge Raine on 31 October. James, in a letter dated 29 October, sought another postponement; also he “respectfully requested” Judge Raine to disqualify himself.

Judge Raine refused both requests. ⁵⁶⁵ Hugh E. Gelston gave testimony which established him as an expert real estate witness. He told of his familiarity with the property and said that its fair market value, in his opinion, was $65,000. He was also of the opinion, and so testified, that it would not be possible to divide the property into eight parts of equal value due to the fact that “the house sits to the northwest corner of the property.” Responding to William’s cross-examination he thought it would be worth $130,000 if it could be “rezoned for apartments.” James W. Trammell, another expert, thought the property as presently used had a fair market value of $65,000. Assuming a special exception for a nursing home it was his opinion that it would have a value of $150,000.

Asked to give his opinion “as to whether this property could be divided into eight equal shares of approximately the same value” he said he didn’t “see any possible way” it could be done because of the lay of the land and the presence of the house. Robert and Anna were present in court during the proceedings but they offered no evidence and although invited to do so by Judge Raine they declined comment. Phillip and Barbara were represented by counsel neither of whom offered any evidence in their behalf. John was not present nor was he represented by counsel.

James was not present either in person or by attorney. William, at Judge Raine’s invitation, made a statement. Little of what he said is relevant to the issue. His insistence that the property should be partitioned in kind, using “owelty to take care of equalizing the shares” drew from Judge Raine the following comment: “ . . .

Alexandrina is sixty-six, John is sixty-five. John, and Alexandrina, and even the younger ones, Robert and Barbara, have an interest in this property and they’re entitled to get their money out of it now, that’s the simple crux of this matter.” Judge Raine found “as a fact, based on the uncontradicted testimony, that it would be absolutely impossible to take a piece of property that is improved [and] that has the contours described by Mr. Gelston with approximately 700 ⁵⁶⁶ feet frontage on the Joppa Road and approximately 100 feet frontage on Bellona Avenue and to divide that property into eight equal shares, all of which would be substantially equal in value.” He concluded the property would have “to be sold in order that all of the parties can realize in money their interests” therein. William’s motion for a “new trial” having been overruled, Judge Raine signed and filed on 1 December a decree appointing H. Emslie Parks, counsel for Alexandrina, and Richard H. Thompson trustees to make the sale, providing, however, that “no private sale of said property shall be less than $130,000.” Both James and William have appealed. The contentions advanced by the appellants, if not frivolous, are certainly without merit.

They argue that the trial