Phelps v. Stewart

Tuck, S., delivered the opinion of this court. We do not think that the appellants have assigned sufficient reason for reversing the order of the 3Jst of January 1859, dismissing this petition. When the papers in a cause are transmitted from the chancery office to a circuit court, sitting in equity, under the Acts of 1854, ch. 149, and 1856, eh. 132, it must be proceeded in as if it liad not been removed. This was the rule applicable to cases removed from the county courts to the court of chancery, and the same reason applies here.

Brown vs. Gilmor, 8 Md. Rep., 322 . Dugan vs. Hollins, 11 Md. Rep., 41 . Considered as the same cause between the same parties, the law imputes to them knowledge of the transmission, and likewise of all subsequent proceedings, as if the papers liad remained in the chancery office. On application to the proper officer the appellants might have known that the cause liad come under another jurisdiction, and by following and noticing the proceedings have avoided their present predicament.

We concur with the court below without passing any opinion upon the manner in which this question is presented, that point having been waived by the appellee’s counsel. But an appeal was taken, also, from the decree of December 15th, 1858, which makes it our duty to examine further into the record, and to notice other points urged in behalf of the appellants. However the practice may have originated, the jurisdiction of the court of chancery and county courts, as courts of equity, in cases of partition, where tile land is situate in one county only, is too well established to be disturbed. Under the Act of 1786, ch. 45, instances occurred in chancery, and many more in both courts since the Act of 1820, ch. 19J.

The proceedings may be by ex-parle petition, or by bill and answer, but in both they must conform to the requirements of the descent laws, and decrees have been reversed ²⁴⁰ for error in this respect. Corse vs. Polk, 1 Bland, 233 , note. Howard’s case, 1 Bland, 366 . Hewitt’s case, 3 Bland, 186 .

Warfield vs. Warfield, 5 H. J., 459. Roser vs. Slade, 3 Md. Ch. Dec., 91. Wilhelm vs. Wilhelm, 4 Md. Ch.

Dec., 330. Chaney vs. Tipton, 11 G. & J., 253. Tomlinson vs. McKaig, 5 Gill, 256 . Bennett vs. Bennett, 5 Gill, 463.

Many cases also show, that where the proceedings are by bill and answer, according to the usual course of the court, sales have been made by trustees instead of commissioners, and without objeclion in the Court of Appeals, although the decrees might have been reversed, if erroneous, on that ground. The cases of Jamison vs. Chesnut, 8 Md. Rep., 34 , and Purviance vs. Glenn, 8 Md. Rep., 206 , do not apply here, if considered with reference to the reasons assigned. Those decisions were made in accordance with what this court understood to be the principle of the case of Alexander vs. Ghiselin, 5 Gill, 138 , to the end that insolvents’ estates may be settled by one trustee under the appointment and control of one court, and thereby avoid contests with the officers of other courts, and possible conflict among the coarts themselves. Here there can be no such result, because whether the sale be made by a trustee or commissioners, the same tribunal must direct the distribution of the fund.

But we think there was error in the proceedings in other respects, for which they must be remanded, under the Act of 1832, ch. 302. The answer of two of the defendants shows that James Phelps, the ancestor, left a widow. The Act of 1820, ch. 191, sec. 27, expressly requires the dower to be laid off and assigned before partition among the heirs, unless a sale be had, with her assent., as provided by the 28th sec. Here the commissioners divided the land into several parts, and made all of them subject to the incumbrance of the widow’s dower.

It is quite manifest that this may operate against her interests if she should desire to have her dower assigned, and be compelled to claim it in the hands of several purchasers, whilst the heirs might be prejudiced by a sale of the land injparcels, each charged with its proportion of the dower. ²⁴¹ The commission should set forth this as part of the duty of the commissioners, and they must perform it where there is a widow, and so make known to the court in their return. 1 Bland, 4 .6. Md. Ch. Pr., 329. The proceedings being defective in this respect, it. follows that the court erred in ratifying the