Roche v. Waters

Bryan, J., delivered the opinion of the Court, The appellants filed a bill in equity, in the Circuit Court of Baltimore City for the sale of certain real estate lying in said City. The land in question was devised by the will of one Solomon Betts, and the appellants set up a title to a portion of it by virtue of certain proceedings in the Superior Court of Baltimore, on the equity side of the Court. The appellees are devisees under the said will. The Circuit Court dismissed the bill of complaint.

As the appellants’ title is founded on these proceedings, it is necessary to examine them with particularity. Solomon Betts, who died in the year 1841, devised a tract of land in the City of Baltimore, to certain trustees for the sole and separate use of his daughter Sarah Hitch for the term of her natural life, without being subject to the control of her husband, and without being liable for ²⁶⁷ his debts; and after her death for the sole and separate use of the testator’s granddaughter Augusta Hitch for the term of her natural life; and after her death, for the use of her lawful issue, and for the heirs and assigns of such issue forever, if any child or descendant of hers should be' living at the time of her death, and if none, then in trust, for the sole and separate use of the testator’s daughter Mary Davies for the term of her natural life, and after her death for the use of his grandson Solomon Betts Davies, his heirs and assigns forever. By appropriate proceedings William George Krebs was substituted in the place of the trustees named in the will. In May, 1859, a bill in equity was filed in the Superior Court of Baltimore City in which Sarah M. A. Hitch, Augusta Waters, William' Francis Waters, Mary Augusta Waters and Edmund C. Waters, (the three last mentioned being infants) and William George Krebs, trustee, were named as complainants; Sarah Hitch and Augusta Waters were married women, the said Augusta being the Augusta Hitch named in the will of Solomon Betts.

The defendants were Mary Davies and Solomon Betts Davies. The bill alleged that an ordinance had been passed for the opening of certain streets through the land devised by the will of Solomon Betts, and that the paving and grading of one of them had been commenced; that the property was liable for the expenses of paving and grading, that a large arrearage of taxes had accrued on the property from the year 1849, until the filing of the hill; and that Mrs. Hitch and Mrs. Waters had effected a loan of seventeen hundred dollars, secured by their life interests, to prevent a sale of the property and a sacrifice of the rights of all persons interested therein. It was further alleged that it would be for the interest and advantage of all parties concerned that a sale should be made of such part of the property as would he necessary to make the required payments. The prayer ²⁶⁸ of the bill was that the sale might he made under and by virtue of the provisions of the Acts of Assembly in such case made and provided.' The bill was signed by “Hugh Davey Evans, proohein ami of infants” and by the trustee, and the married women, and by comjdainants’ solicitor.

The defendants in their answer denied the right of the life tenants to encumber the property by their failure to pay the taxes, and by allowing assessments to accrue which were alleged to he uncalled for at the time; and also maintained that the sale of the property was- not sanctioned by any Act of Assembly. A sale was decreed in March, 1860, of so much of the property as might be required to pay the paving and grading taxes and assessments, and all other claims due and owing to the City of Balimore, and also of so much of the property as Avould repay the money borrowed to pay arrearages of taxes. Sales were made to George Presstman and George U. Porter and ratified by the Court. (The land sold to Presstman has been acquired by the appellants, and is that to which they claim title in the bill of complaint in this suit.) After the ratification of the sales, a petition was filed in the names of Mrs. Hitch and her husband, Mrs. "Waters and her husband, and the three infants by their next friend, reciting the above mentioned proceedings, and praying for a decree or order authorizing the mortgage of the property for a sum sufficient to pay the taxes and sums due for grading and paving.

A subpoena was issued for the infants, and a guardian ad litem appointed for them, who filed an answer in the usual form. No further proceedings under this petition appear in the transcript of the record sent to this Court. We shall pass by Avithout special comment the irregularity of a suit by married women in their own names, and without making their husbands parties on either side of the record. Matters of more serious moment now ²⁶⁹ demand our consideration.

The city taxes were due by the life tenants, and they were bound to pay them in full without contribution from these infants. The prayer of the bill is that the property in question may be sold for the purpose of paying certain paving and grading assessments, and also of reimbursing the life tenants for the expenditure which they made in payment of their own debt. The reason alleged for the sale; the sole ground on which it is asked; the special jurisdictional fact which is supposed to authorize it, is that it would be “for the interest and advantage of all parties concerned.'” We shall proceed to inquire into this ground of jurisdiction. It is aside from the present purpose to consider the question whether by virtue of its general care and superintendence of infants and their property, the Chancery Court of England has power to sell their inheritance, when it appears to be manifestly to their interest that it should be sold.

Because it is firmly held in this State that a Coui’t of equity had the right to convert the real estate of an infant into money previously to the legislation on the subject of these sales. But the jurisdiction has been Arery greatly enlarged by a series of statutes. Of course, Ave have no concern with any of these statutes which were passed subseqAiently to the decree in question. The Act of 1185, ch. 12, is entitled “ An Act for enlarging the power of the High Court of Chancery. ” By the tAvelfth section the Court is authorized, on the conditions therein named, to sell lands in which an infant, idiot or person more compos mentis has a joint interest in common Avith any other person or persons.

In Gill vs. Wells, 59 Md., 499 , it was held that the jiudsdiction thus given does not exist where the parties hold separate consecutive interests in the land, but is confined to cases where they hold concurrent interests. The Act of 1816, ch. 154, was entitled “An Act to authorize the Chancellor and the several County Courts of this State ²⁷⁰ to order and decree the sales of real estate of minors in the cases therein mentioned.” The effect of this statute, so far as the present question is concerned, is neatly summarized in the opinion in the case just cited, and we will quote an extract from it. Speaking of the decree passed in that case, the Court say: “But the Act of 1816, ch. 154, and section 9 of the Act of 1831, ch. 311, exactly meet the case, and it is to them the jurisdiction' to pass this decree must be referred. By the first section of the Act of 1816, power was given to the equity Courts to decree a sale of an infant’s real estate upon petition of his guardian or prochein ami, provided the infant he summoned and appear by guardian ad litem, and it be made to appear to the Court that it will be for the interest and advantage of the infant that the sale should he made; and by section thirteen of the same Act, as amended and enlarged hy section nine of the Act of 1831, it was provided that the whole estate might he sold with the consent of the life tenant, where the infant was the reversioner.” 59 Md., 499 .

The decree cannot be supported under this statute, because the essential preliminaries required by the first section were not observed. The bill oug'hfc to have been filed b j prochein ami or guardian, and the infants should have been summoned, and there ought to have been an appearance for them by guardian ad litem, appointed by the Court. The statute does not require that an infant should sue himself, as has been suggested by the appellants’ counsel; but it directs that the guardian or prochein ami should file a petition and bring the infant before the Court as a defendant, and that the allegations of the petition should be proved as facts are proved against defendants. A most wise and salutary provision, as the present case