Vierling v. Holt

Marbury, C. J., delivered the opinion of the Court. The appellees filed their bill of complaint against the appellant in January, 1949, alleging that on April 25, 1946, they entered into a written agreement to purchase from the appellant a lot containing about four acres of land in a sub-division known as Drumeldra Hills, near Colesville, in Montgomery County, for the sum of $4,388. They made a down payment of $400 and agreed to pay the balance in monthly instalments. Prior to, and at the time the agreement was executed, the appellant represented and promised the appellees that she would construct a 30 foot hard-surfaced road that would be suitable and adequate whereby they could have easy access to the lot they had agreed to purchase.

Construction of this road was to be commenced and completed during the spring and summer of 1946. The bill further alleged that the appellees, relying on these representations, started to improve the land and expended more than $1,000 on these improvements, and had made monthly payments totaling $550, making a total expenditure in excess of $1,950, that at the time the improvements were commenced, there was a dirt road which eventually became impassable, that demands had been made upon the appellant to construct the road, and this had been promised, but the road had not been constructed. The appellees, therefore, asked that the agreement be rescinded and declared null and void, and that they recover from the appellant such sums as they had paid and expended. A demurrer was sustained to the original bill, and, subsequently, an amended bill was filed which went into ⁵²⁴ more detail.

With this amended bill, the contract of sale was filed, which included the statement: “Purchasers have privilege of building and improving tract also purchasers would like to have roads constructed as soon as possible.” The amended bill related that appellees had only purchased the land upon the representation that a 30 foot hard-surfaced black top road would be built, and no part of the cost of it would be assessed against the property they were buying. An answer was filed to this amended bill in which the appellant denied making such representations. Testimony was then taken, and, on May 22, 1950, the chancellor decreed that the agreement be rescinded and gave a money judgment against the appellant in the sum of $1,850.00. No appeal was taken from this decree, but on August 17, 1950, appellant filed a petition asking that the decree be set aside.

The allegation is made that the appellant was not appraised of the decree until August 1, 1950, and had inadvertently allowed the time for an appeal to expire. She therefore said she was left without any remedy except to have the decree set aside. On September 26,1950, after hearing, the court held that no grounds had been advanced to justify setting aside the decree, and therefore denied the petition. From the order denying the petition, this appeal comes here.

It is admitted in the petition and is obvious that the appellant has proceeded in the manner in which she has because she has allowed the time to expire within which she could have appealed from the original decree. She is therefore seeking to circumvent the rule requiring such an appeal to be taken within 30 days from the date of the decree (Rule 5, Appeals from Courts of Equity, Rules of Court of Appeals) by filing a petition to strike out the decree, and then taking an appeal from an order denying this petition. Such an appeal cannot have the effect of re-opening the entire case so that we can consider it generally on the merits. The only question before us, therefore, is whether the petition to set ⁵²⁵ aside the decree alleges facts which justify such action in spite of the reason given for its filing.

This petition was filed after the decree became enrolled. (General Equity Rule No. 48, Flack’s 1947 Supp., p. 2022.) An enrolled decree may be set aside by a bill of review for error apparent upon the fact of the decree, or for newly discovered evidence, or upon an original bill for fraud. No such bill of review was filed in this case, and the allegations in the petition would not furnish any basis for such bill. There are also cases in which an enrolled decree may be set aside by petition. “These are in cases not heard on their merits and in which it is alleged that the decree was entered by mistake or surprise, or under such circumstances as shall satisfy the court in the exercise of a sound discretion that the enrollment ought to be discharged and the decree set aside.” (Emphasis supplied.) Herbert v. Rowles, 30 Md. 271, 278 ; Foxwell v. Foxwell, 122 Md. 263, 273 , 89 A. 494 ; Saltzgaver v. Saltzgaver, 182 Md. 624, 631 , 35 A. 2d 810 ; Fetting v. Flanigan, 185 Md. 499, 507 , 45 A. 2d 355 , 174 A. L. R. 301; Graham v. Graham, 190 Md. 434, 444-445 , 59 A. 2d 180 ; Falck v. Chadwick, 190 Md. 461, 466 , 59 A. 2d 187 .

This rule has sometimes been stated as if there were three cases under which an enrolled decree could be voided by petition, the first being where the case was not heard on its merits, the second, where the decree was entered by mistake or surprise, and the third, where the circumstances satisfied the court that the enrollment ought to be discharged. Whitlock Cordage Co. v. Hine, 125 Md. 96, 102 , 93 A. 431 . This analysis of the rule seems to stem from Miller’s Equity Procedure, Sec. 288, to have been quoted from that authority in Simms v. Simms, 178 Md. 350, 353 , 13 A. 2d 326 , and then to have been repeated in subsequent cases. Wyahllyeth v. Wyallyeth, 178