Thruston v. Minke

Alvey, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Allegany county, adjudging certain real estate to be sold for purposes of partition among the parties entitled. It is charged in the bill filed by the appellee, that he and George A. Thruston, the appellant, are seized in fee-simple, as tenants in common, (Minke, the appellee, of an undivided three-fourths, and Thruston, of an undivided one-fourth,) of all that piece or parcel of ground situate in the city of Cumberland, called and known as the “ St. N icholas Hotel Property,” with the improvements thereon; and that such property is incapable of a just and equitable partition between the owners, and that it would be to the interest and advantage of all parties concerned, that the same should be sold, and the proceeds of sale distributed among those entitled, according to their respective interests. It is also alleged, that there are three mortgages on the property, two of them executed by Minke, and the other by Thruston, and that some portion of the debts secured by these morgages was not due at the time of filing the bill.

The mortgagees, and the assignees of one of them, are made parties defendants, and the prayer of the bill is, that the property may be decreed to be sold free and clear of the mortgage in ⁵⁷³ oumbrances, if the mortgagees elect to receive their money before it should become due, and if not, then that the property may be sold, subject to the then existing mortgages. Thruston and his wife, in their answers to the bill, take various grounds against a decree for sale. The bolder of one of the mortgages answered, and consented to a decree, and to receive the money secured by the mortgage out of the proceeds of sale; and the other two mortgagees failing to answer, an ex parte decree was passed as against them. There is no question made as to title, but the grounds taken by Thruston and wife, in their answers, against a decree for a sale of the property, are— 1.

That the description of the property contained in the bill is not sufficient to embrace all the property held in common by the parties. 2. That the mortgage incumbrances created by Minke on his interest in the property, should he allowed to mature and be discharged before a decree for sale. 3. That .there are tenants in possession of the property, and that they are necessary parties to the cause. 4. That there is a certain injunction suit depending in regard to the common property, and that no decree for sale should pass until that suit is determined. 5.

That the property is susceptible of partition, and, therefore, should not be decreed to be sold. We shall briefly dispose of these several objections in the order here stated: 1st. The general description of the property given in the bill sufficiently points to the subject-matter of the proceeding, and will embrace all the grounds and buildings heretofore known as the “ St. Nicholas Hotel Property,” except, of course, that part of it leased to Minke by Thruston for a long renewable term, and the reversion in winch has been conveyed by the latter, and is, therefore, no longer any part of the common property as between these parties. It is not usual to set out in the bill such a specific description of the ⁵⁷⁴ property as may be required in a deedof conveyance; and all that would seem to be required is, that'such general description be given as will lead to the identification of the property upon which the decree is.intended to operate.

Moreover, the general description of the premises found in the bill, is made specific and particular by the proof in the cause, and as the decree is founded upon the pleadings and proof, reference must be had to both of these in order to ascertain the identity of the subject-matter of the decree. 2d. As a general rule, an incumbrancer, as mortgagee or judgment creditor, is not a proper party to a proceeding like the present. His rights cannot be affected either by sale or partition. He cannot be compelled to join in the partition, nor can any relief be prayed against him in such a proceeding.

Baring vs. Nash, 1 Ves. & B., 551; Wotten vs. Copeland, 7 John. Ch. Rep., 140. If the estate is partitioned, the lien of the incumbrance fixed on an undivided part of it will, after the division and allotment be confined to the particular share or part allotted to the party creating the incumbrance; and if the estate is sold, the purchaser will take it subject to the lien of the incumbrance upon the undivided share of the party against whom the mortgage or judgment was held before sale.

Harwood vs. Kirby, 1 Paige, 469 . But in all cases where the estate is to be sold in order to effect a division among those entitled, and there are incumbrances to which it is subject, if there is any doubt or question as to the extent of the liens, the Court should,’either before decree or before sale made thereunder, direct an ascertainment to be made of the amount of incumbrance, so that no deception be practiced or prejudice done to any party concerned in the sale. In this case, however, the mortgagees of the undivided interests in the estate have been made parties to the proceeding, and they have not objected thereto, but have acquiesced, and are therefore, bound by it; and as their debts are