Schwallenberg v. Jennings

Stewart, J., delivered the opinion of the Court. This is an ajipeal from the orders of the Orphans’ Court of Baltimore City, directing a resale of leasehold property belonging to the estate of Grayson Jennings, at the risk and cost of the appellant. In his brief, the counsel of the ajopellant- states that it is impossible to submit to this Court the questions especially intended, because of the omission of important papers from the record. If the appellant was not satisfied with the record as transmitted, he had the right under 30th sec.

Art. 29 of the Code, in an application for a writ of diminution, to specify in writing, the parts requisite to be supplied, and have them furnished. Under the 13th rule, adopted by this Court, 29 Md., 6 ,1 the Register of Wills, in making out a transcript of the I record of proceedings, is prohibited from incorporating j therein any paper or proceeding not necessary to the deter-1 mination of the appeal., ⁵⁵⁷ The counsel of the appellant, however, submits his points upon the record as it is, and it is only the case as found therein that we can review. It appears that Joshua Jennings, administrator of Gray-son Jennings, under the order of the Orphans’ Court, oí the 4th March, 1872, sold the property in question to the appellant, on the 24th March, 1875. The sale was duly reported to, and ratified by, the Orphans’ Court.

The appellant refused to coni ply with the terms of sale. The appellee, on the 13th of May, applied for an order to resell the property. The appellant, by his answer, admits the sale to him, and its ratification by the Court-denies bis refusal to comply with the terms of sale, hut claims to he allowed, as a credit on the purchase, for the amount of a claim he alleges he holds against the estate of Grayson Jennings. The Orphans’ Court, on the 4th of June, 1875, passed an order directing compliance, on the part of the appellant, with the terms of sale, on or before the 10th of June following, or to show good cause to the coutrary, and on failure to comply therewith, an order would he passed for a resale of the property at his risk and cost.

No cause having been shown,’ and no compliance with the terms of sale, the Court, on the 2nd of August, 1875, referring to its order of 29th of June, 1875, passed the final order for the resale of the property. Under the Act of 1870, ch. 82, amending the 282 sec. of Art. 93 of the Code, the Orphans’ Court had the power to order the sale of the property, or whatever title Grayson Jennings had thereto, and upon its ratification by the Court, if the appellant, as the purchaser, failed, neglected or refused to comply with the terms as reported and ratified, to pass the order requiring compliance therewith, or to show good cause to the contrary, by the day specified therein : and upon his failure, to order a resale at his risk, or to enforce compliance with the order passed, by attachment. ⁵⁵⁸ We clo not find in the record that the appellant made any objection to the sale, on account of the title or otherwise, but merely claimed a credit on the purchase, the order for the sale is not in the record, nor the report of the sale, as to what was the nature of the title sold — if the administrator merely sold the title of Grayson Jennings, which was all, strictly, that he was obliged to sell; it was nos incumbent upon him to convey any other title. It seems, however, that the Court, with a view of rendering substantial justice between the parties, and upon the theory that an unincumbered title liad been sold, and that such title ought to be made to the appellant; and finding that such title could be made, undertook, with the consent of the counsel for the party having a lien on the property for balance of the purchase money, to order a tender of such title to be made to the appellant, and on