Simpson v. Bailey

Robinson, C. J., delivered the opinion of the Court. This is an action of ejectment, and the plaintiffs, in support of their title, proved that Cornelius Bailey died seized of the tract of land set forth in the declaration, and that they were his heirs at law. The defendants claimed title under a sale made in pursuance of a decree of the Orphans’ Court of Charles County for the sale of the real estate of the said Bailey. And to prove title in themselves, the defendants offered in evidence ⁴²² a petition filed by Elizabeth Bailey, administratrix of the said Cornelius Bailey, for the sale of the real estate of the intestate, under whom the plaintiffs and defendants both claimed title, and the proceedings thereunder, including the decree, and the sale of the real estate and mesne conveyances from the purchaser, and upon the objection of the plaintiffs’ counsel, the Court decided that the proceedings thus offered were not admissible for the purpose of proving title in the defendants.

And in support of the ruling of the Court, it is insisted that the sale of the real estate of the intestate under these proceedings is absolutely void', and thé purchaser thereunder acquired no title, because the decree shows that the Orphans’ Court appointed Elizabeth Bailey, as administratrix, to sell the real estate, and that the sale was made by her in that capacity, and not as trustee. To such a contention as this we cannot agree. The Orphans’ Courts have concurrent jurisdiction with the Circuit Courts to decree the sale of the real estate of intestates in all cases where the value of the real estate does not exceed twenty-five hundred dollars, and to ratify the sales thus made in the same manner as sales made by trustees under the appointment of the Circuit Courts. And the Code further provides that the Orphans’ Courts shall have authority to appoint a trustee to make such sales, which trustee may be the administrator, and that upon the ratification of the sale and the payment of the purchase money, the trustee shall convey the title to the purchasers.

The Code, it is true, contemplates that when an administrator is appointed trustee, he shall sell the property as trustee, and not as administrator, and that he shall give bond as trustee. But a mere error in the description of the person, and the character in which he sells, does not make the sale itself absolutely void. There is a broad distinction between an error of this kind in the procedure where a Court has jurisdiction of the subject-matter and the parties, and a judgment