Stallings v. Stallings

CocheaN,. J., delivered the opinion of this Court. The bill in this case was filed for the purpose of obtaining a partition of the real estate, of which Samuel Stallings died seized and intestate, among his heirs at law; and the decree from which the appeal was taken, was passed upon a return made hy the commisioners appointed to enter upon and divide the lands in question. The objections ⁴⁵ relied on as a ground for reversing this decree, are founded chiefly on an alleged failure of the commissioners to comply with the provisions of the Act of 1820, ch. 191, which points out and particularly describes the course of proceeding in such cases.

It is settled that upon an appeal from a decree for a sale in a case of partition, the previous order ratifying the commissioners’ return may be reviewed, though no appeal was taken therefrom, the order being merely interlocutory and a part of the proceedings preliminary to trie decree. Phelps vs. Stewart, 17 Md. Rep., 231. We find by an examination of the record that the objections made are most of them well founded; and indeed the errors suggested seem to bo so manifest, that it is scarcely necessary to do more than point them out, in a review of the action of the commissioners in connection with the course of proceedings prescribed by the Act. The first objection stated by the appellants, that the Court below had no jurisdiction, because the bill does not aver that the parties in interest could not agree upon a division of the property in question, might have been presented at the proper stage of the case, whether with or without effect, it is not necessary for us to decide.

That, however, does not appear to have been done, nor does it appear to have been suggested in the Court below, and for that reason wo are not at liberty to consider it here. Act of 1841, cb. 163. Knight vs. Brawner, 14 Md. Rep., 1 . The commission authorizing the commissioners to enter upon, divide and apportion the lands mentioned in these proceedings is clearly defective in several particulars.

The 8th sec. of the Act of 1820 provides, in case the parties cannot agree, that the Court shall issue a commission, authorizing and .empowering the commissioners, or a majority of them, if the land cannot be divided fairly and equally among all the parties interested, to divide it into as many parts as it is susceptible of, ⁴⁶ without loss or injury, and then to ascertain the value of each part. The commission in this case conferred no Such power, nor did it require the commissioners to divide the lands into as many parts as it was susceptible of, or to ascertain the value of the several parts upon such a division, and in that respect their return seems to conform to the terms of the commission. It thus appears that neither the commission nor the proceedings of the commissioners were in accordance with the requisitions of the Act, and on" that ground we think they were erroneous and irregular. Bennett vs. Bennett, 5 Gill, 463 .

The return of the commissioners is also objected to, because it does not show that they gave the notice prescribed by the 14th section. The return states, “that after having given due notice, according to law, to the parties, they entered,” &c. What notice was given does not appear; and at most, the return only shows that such a notice was given as the commissioners thought was sufficient to satisfy the terms of the Act. That, in our opinion was not sufficient.

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