Slingluff v. Stanley

Alvey, C. J., delivered the opinion of the Court. The appellant in this case has adopted the novel method of exception to the ratification of the sale, in order to have the decree reviewed and declared void, for supposed defects in" the proceedings upon which the decree is founded, or the want of jurisdiction in the Court to pass the decree. If it be apparent upon the face of the proceedings that there was an entire want of jurisdiction of the Court to decree the sale of the property, then, doubtless, the objection could be availed of in this mode. But clearly such mode of attacking the decree for mere defects, errors, or irregularities in the proceedings, though apparent upon their face, is wholly without precedent, and entirely unwarranted by any principle of equity pleading.

Such defects, errors or irregularities, if they exist, could only be reached and corrected by a direct appeal from the decree, or by bill of review for errors apparent. Tomlinson vs. McKaig, 5 Gill, 256 ; Bolgiano vs. Cooke, 19 Md., 375 ; Gregory vs. Lenning, 54 Md., 51 . It.is urged, however, as an objection to the sale under the decree, that the allegations of the bill, upon which the decree’of sale was founded, are not sufficiently clear and definite to confer jurisdiction upon the Court to pass the decree for sale of the property. That there is no sufficient allegation of the seizin by James Sanford, under whom the complainants claim, of the land decreed to be sold, nor of the extent of his interest therein, at the time cf his death.

But in this we cannot agree. The bill was filed, under section 99, of Article 16 of the Code, for sale of the real estate described, for the purpose ²²⁵ of partition among the parties entitled; it being alleged that such real estate was not susceptible of division in kind without loss and injury to the parties concerned. The bill alleged that James Sandford was, in his life-time, seized and possessed of seven-fifteenths undivided parts of a tract of land of one hundred and twenty acres ; and that, being so seized, entitled, or possessed of such undivided interest, he died intestate, leaving the complainant, James Anna Page, his only child and heir-at-law, and also his widow, surviving him. It is also alleged that the other part of said tract of land, being eight-fifteenths thereof, was owned., by the appellant.

It is further alleged, that “ if it he found, as your orators charge, that •said real estate is not susceptible of division, and that no division can be made, except by greatly injuring and depreciating the value of said real estate, then they are entitled to a decree for sale for the purposes of partition arid a sale is accordingly prayed of the estate. These allegations clearly make a case for the exercise of the jurisdiction of the .Court, under the section of the Code referred to. The test is, whether a demurrer would have been sustained, if interposed to the bill