Tome v. Stump

Pearce, J., delivered the opinion of the Court. The questions to be decided in this case, arise upon appeal from an order or decree of the Circuit Court for Cecil County, in Equity, authorizing and directing H. Arthur Stump, committee of Lewis W. Abrahams, to make private sale of certain real estate of said Abrahams to Evalyn S. Tome, upon the terms and conditions oUa pro ²⁶⁶ position of purchase made by Mrs. Tome to said committee; and these questions depend mainly upon the construction to be given to chapters 474 and 221 of the Acts of 1894, now codified in Poe’s Supplement, respectively, as sections 47 and 98 of Art. 16. A brief statement of the facts seems necessary to a proper understanding of any decision to be made, and will facilitate a satisfactory disposition of the appeal. On June nth, 1898, the seven children of Lewis W. Abrahams filed their petition under oath, alleging that their father was, and for some considerable time past, had been an habitual drunkard, incapable of the proper management of his estate, and praying for a commission to the Sheriff of Cecil County to inquire whether he was an habitual drunkard as charged.

It is shown by the recital of an order, hereafter to be mentioned, that on June 16th Abrahams appeared in person, expressed his desire to dispense with the legal proceedings to establish the charge, and appointed his own committee, to-wit, H. Arthur Stump, subject to the approval of the Court, in accordance with the provisions of sec. 47 of Art. 16., The appellant does not charge that this is not the fact, but she denies that there is any proper or legal evidence of the fact. At this stage of our inquiry, however, we shall assume it to be a fact. On June 16th an order was passed reciting the fact last mentioned, and approving and confirming the appointment of H. Arthur Stump as committee, and requiring him to execute a bond with surety, or sureties, in the penalty of $15,000. On June 17th the prescribed bond was filed, with the Fidelity and Deposit Company as surety, and was duly approved.

From this order no appeal has been taken. On July 14th Henry A. Nesbit filed a petition in this case alleging that on April 19th, 1898, by a written agreement between Abrahams and himself, he secured an option to purchase at any time within sixty days thereafter, the whole or any part of the land mentioned in the proceedings, at $100 per acre, conveyance to be made “by good and suf ²⁶⁷ ficient deed;” and that on June 13th he duly notified said Abrahams, in writing, of his acceptance of his said option on the whole tract, tendering himself ready to pay the purchase money and requesting “an immediate conveyance by good and sufficient deed.” Nesbit further alleged in his petition that he had no knowledge of these proceedings until after the passage of the order mentioned, and averred that Abrahams was not in fact an habitual drunkard; that said order hindered and delayed the execution of his contract, and he prayed for the rescission of that order and for leave to intervene and contest the allegations of the petition. On June 20th the Court passed an order nisi on this petition, requiring cause to be shown on or before the third Monday of September, and for service of copy of petition and order on Abrahams, on Stump, his committee, and on Albert Constable, solicitor of the original petitioners. On September 17th Stump filed a petition in the cause setting forth that on June 16th Nesbit had filed a bill in the same Court for the specific execution of his above-mentioned agreement with Abrahams ; that subsequently, Nesbit, who is the brother of Evalyn S. Tome, had assigned to her all his interest in said agreement of purchase, and that she had offered to compromise and settle all her rights and claims under said agreement and option to purchase the whole tract of 166 acres, by offering to purchase from the committee and Abrahams, 144 acres at $96 per acre; that such purchase would be greatly to the interest and advantage of Abrahams and his family, as .the sum obtained, when invested, would yield a much larger income than that derived from the farm, and they would still retain the residence with twenty-two acres attached for their use and occupation; that this sale would avoid vexatious' litigation, and that Abrahams and his family were desirous it should be made.

The prayer of the petition was for authority to make such sale. On the same day Nesbit and Mrs. Tome filed an admission of the facts stated in the petition, so far as they affected them, and their consent to the passage of such de ²⁶⁸ cree as might be necessary to procure the relief prayed in the petition. Testimony was taken to support the allegations of the petition (Mrs. Tome’s solicitor being present at the taking thereof) and full proof was made. The case was submitted for decree, and the following decree was passed, which it is thought best to transcribe in full: “ Matter submitted for decree of Court. “The matter of the petition of H. Arthur Stump, committee of Lewis W. Abrahams, filed in the above-entitled cause, on Sept. 17th, 1898, asking authority to sell the real estate or property therein described by metes and bounds, courses and distances, to Evalyn S. Tome, having been submitted to the Court, and the proceeding having been read and considered, and it appearing that proof has been taken, as in the other Chancery cases, as to the value, quantity and condition of said property, and the Court, after considering all the circumstances, deeming it to the interest and advantage of said Lewis W. Abrahams to sell said real estate to said Evalyn S. Tome upon the terms and conditions set forth in said petition, it is thereupon, this 4th day of November, 1898, by the Hon.

Frederick Stump, one of the Judges of said Court, and by the authority thereof, adjudged, ordered and decreed, that said H. Arthur Stump, committee as aforesaid, be, and he is hereby authorized, empowered and directed to sell said real estate to said Evalyn S. Tome at private sale upon the terms and conditions set forth in said petition (following added by the Court) and the said committee is hereby directed to convey the said property to said Evalyn S. Tome, upon the payment of the purchase money to -him, and not before. Frederick Stump.” The appellant contends that under this decree the committee cannot give her a good marketable title such as she stipulated for in her proposition of purchase, for three reasons, which are earnestly argued in the brief submitted on her behalf. . The first ground taken is, that under the facts of this case, ²⁶⁹ the Court was not clothed with power to decree a sale of Abrahams' property, and if this proposition could be sustained, a purchaser could get no title whatever; but of the existence of the power to decree a sale we have not the slightest doubt. In Hamilton v. Traber, 78 Md. 26 , in an opinion by Chief Judge McSherry, in which the history of the power of Courts of Chancery over the estates of persons non compos mentis, received an exhaustive examination and careful consideration, it was held that a Coui't of Equity had no jurisdiction to decree a sale of the estate of a lunatic either for maintenance or support, or to effect a change of investment, until the lunacy had been established by the inquisition of a jury, and a committee had been appointed according to law to take charge of his person and estate.

This is still the law as to lunatics, who, for obvious reasons not necessary to be stated, are not permitted to dispense with legal proceedings, to establish the lunacy, as habitual drunkards are, by section 47 of Art. 16, allowed to do, to establish the fact of habitual drunkenness. By secs. 98 and 99, as amended, sales, leases and surrenders of leases may be decreed for the purpose of changing investment, without any process or order of publication, but the application must still be made by the committee, who can only be appointed as heretofore after the lunacy is established by the inquisition of a jury. In order to harmonize all these amended sections, the requirement of appearance and answer of defendant was stricken out in sec. 100 as amended, and for some reason not made apparent, the power to decree a sale for the payment of debts' — without being satisfied that it would be to the advantage of the estate of the lunatic to discharge such debts, which power had been first granted by the Act of 1833, ch. 150 — was abrogated. It was also attempted in sec. 98 as amended, to give the same effect to any decrees or orders theretofore passed for the sales of property of lunatics, as if passed after the passage of the amended Act, but this was promptly declared in Willis v. Hodson, 79 Md. 327 , to be inoperative and void. ²⁷⁰ The proceedings in the case of habitual drunkards were enacted by chapter 71 of 1888 in the precise terms in which they stand under sec. 47 of Poe s Supplement (Act of 1894, ch. 474), except that thereby those addicted to opium, cocoaine, morphine, or any other drug or intoxicant, were subjected to its operation.

The argument in behalf of the appellant is -thát by Sec. 47 of Art. 16, “the rules of law and proceedings now applicable to the property of lunatics,” are not in terms made applicable to cases of persons who dispense with legal proceedings and appoint their own committee, and that they cannot be extended to such cases by implication; that the most which can be claimed is, that where a jury finds one to be an habitual drunkard, and incapable of taking care of himself, that then the Court is invested with the same power over his person and estate as over that of a lunatic so found; but that one who (though so authorized by the statute) dispenses with legal proceedings to establish the charge of habitual drunkenness and appoints his own committee with the approval of the Court, is neither adjudged an habitual drunkard, nor confessed as one, and that as he is by the statute conceded capacity to dispense with- legal proceedings to prove the charge; to appoint a committee; to select a reformatory institution; and to agree as to -the period during which he may be required to remain there, that he is not on the footing of a lunatic, and the rules and proceedings