State v. Albert

Boyd, C. J., delivered the opinion of the Court. . This is a suit on an injunction bond given by the appellee in a proceeding instituted by him against those who are now the equitable plaintiffs to prevent the sale of some lots in Highlandtown, Baltimore County. An injunction was issued and on an appeal from an order overruling the demurrer to the bill of complaint filed in that case, the decree was reversed and the bill dismissed, as is shown by the case of Long Contracting Co. v. Albert, 116 Md. 111 . A demurrer to an amended declaration filed in this case was sustained, and upon the plaintiffs declining to amend, a judgment for the defendants for costs was entered, and from that judgment this appeal was taken.

The declaration alleges that Messrs. Williams, Simpson and Hull were appointed trustees by the Circuit Court of Baltimore County to sell the property, which was advertised for sale by them; that the said Albert filed his bill of complaint against them, the George Long Contracting Company and The Johns Hopkins Hospital, asking that they be enjoined and restrained from selling six pieces of said property, to which bill the plaintiffs in this case demurred and the demurrer being overruled, upon appeal the order was reversed and the bill dismissed. After stating the conditions of the bond, which was given to the State of Maryland, it is alleged: “That the said writ-of injunction was not prosecuted with effect nor did the said Anton J. Albert satisfy and save harmless, nor did the said Anton J. Albert pay all costs and damages that were occasioned by the issuing of said writ of in ²²⁵ "junction, whereby this case was brought. That by reason of the issuing of said injunction these plaintiffs suffered loss and damages in the depreciation of all of said properties; and suffered damages by reason of the legal complications in and notoriety of the said property and title, and the accumulating expenses upon said property — taxes water rents and ground rents, and other expenses incidental thereto.” The appellees have suggested several grounds for the demurrer, but in the view we take of the case it will not be necessary to refer, to all of them.

We cannot understand upon what principle trustees appointed by a decree of a Court of Equity to sell property can recover such damages as are set out in the narr., and are quoted above. So far as the narr. discloses, these trustees were simply appointed to sell the property, and we are informed by our own records ( 116 Md. 111 , supra), that they were so appointed under a decree to enforce mechanics’ liens, but regardless of that there is nothing to suggest that the title to the property was in any way vested in them. As is well known, “In the ordinary case of a trastee appointed by decree to make sale of property, the sale is a transaction between the Court and the purchaser; the Court being the vendor, and the trustee merely the Court’s agent to carry its orders into effect. 'The trustee has not, by virtue of his office, any title to the property decreed to be sold, or any interest in it, or in the proceeds of sale.” Miller’s Eq. Proc. 430.

It was not necessary for the Court to issue an injunction to stop its trustees from selling, but it could have done so without an injunction. One of the grounds upon which the case in 116 Md. was decided was that the decree had not been enrolled and was subject to the control of the Court. But the appellants cite authorities outside of this State and Wallis v. Dilley, 7 Md. 237 , to show that as joint obligees they were required to unite in the suit. ' It is not necessary to refer to authorities out of the State, as these trustees were not joint obligees, together with the other. ²²⁶ equitable plaintiffs in the bond. In Wallis v. Dilley, the bond was given to the appellees — not to the State and hence it was said by the Court: “It must be observed, that the cause of action here is joint; and that if all the plaintiffs had not united, the declaration would have been subject to demurrer.

The obligation is for the payment of one sum to three parties, and they were properly joined as plaintiffs. Had they not been, the defendants might even have availed themselves of the non-joinder upon proof at the trial.” The report of the case sufficiently shows that the plaintiffs in that case were the obligees, but to avoid any possible question about it we have examined the record and find that they were, and that the State was not an obligee. Section 175 of Article 16, Code of 1912, provides