Waring v. Turton

Bartol, C. J., delivered the opinion of the Court. It appears by the tecord in this case, that John A. Turton of Prince George’s County died in 1842, seized of a large quantity of land, in that County, and leaving his last will, whereby among other bequests, he devised a portion of his real estate to his children, Violetta, wife of John L. Waring; Susanna W., wife of Francis E. Mudd; Richard, Priscilla, Amanda, John E., Benjamin F. and Mortimer W., in fee-simple, subject to the right of dower therein of his widow, Almira Turton. On the 4th day of May 1843, a bill was filed by John L. Waring and wife, and others, against the other devisees, alleging that the real estate so devised to them was not susceptible of division, and praying that the same might be sold and the proceeds divided. A decree was passed on the 11th day of April 1844, for the sale of the real estate, and William H. Turton was appointed trustee to sell the same.

The trustee sold the land mentioned in the proceedings, in different parcels and to different persons, as follows: To Francis E. Mudd a part of a tract called “Boones,” and described as “ Lot Ho. 3,” containing 223 acres 26 perches for $9.50 per acre, amounting to the sum of §2,130.04. To John L. Waring he sold part of the same tract, containing 222 acres 26 perches for $9.50 per acre, amounting to $2,120.54. He afterwards sold to John L. Waring a portion described as “Lot Ho. 2,” containing 459 acres 19 perches for the sum of $10,000, and that portion described as “LotHo. 4 ” to James Thomas for the sum of $100. All of which sales were reported to, and finally ratified by, the Court, and the case was referred to ⁵⁴² the auditor to distribute the trust fund.

On the 4th day of November 1846, the auditor filed his report and ‘‘Account A.” in which he charged W. EL Turton the trustee, with the whole proceeds of sales, amounting to the sum of $14,350.58, aud allowing for expenses, &c. distributed the residue among the aforesaid devisees of John A. Turton, giving to each the sum of $1933.18i. On the 20th day of April 1841, this’ report of the auditor was ratified, and the trustee was directed to apply the proceeds of sale accordingly. The terms of the sales made to Francis E. Mudd and John L. Waring, were that the purchase money should be paid in equal instalments in one, two, three, four and five years, counting from the first day of January 1845 ; so that the whole purchase money fell due by the first day of January 1850. John L. Waring died in September 1848, and in the November following letters of administration upon his estate were granted to his widow Violetta Waring.

On the 6th day of April 1855, Thomas GL, John .and Amanda the infant children of John L. Waring, by Violetta their mother and next friend, filed a petition setting forth the purchase by their father of the aforesaid 459 acres and 19 perches of land, his subsequent death, and stating that a portion of the purchase money had been paid by him in his life-time, and the balance by his administratrix after his death, and praying an order directing the trustee to execute to them a deed for the same. Appended to this petition is a certificate of W. H. Turton the trustee, admitting the payment of the entire amount of the purchase money for the said tract of land, and consenting to the passage of the order prayed for. Upon this petition and certificate, the Court on the 6th day of April 1855, passed an order directing the trustee to execute a deed. Francis E. Mudd having also died, a similar petition was filed by his widow and children, to which was appended a similar certificate of the trustee, and upon ⁵⁴³ which a similar order was passed by the Court on the same day.

William H. Turton the trustee died on the 16th day of August 1855, without having executed a deed, and on the 39th day of February 1856, another petition was filed by Violetta Waring as next friend of her infant children, setting forth the death of William H. Turton, and praying the appointment of another trustee to execute the deed in conformity to the order of the 6th of April 1855, and thereupon an order was passed on the 19th day of February 1856, appointing John E. Turton trustee in the stead of William H. Turton deceased, and directing him to convey the said real estate to the minors in fee-simple. No further proceedings appear to have been had for a period of more than thirteen years, and on the 30th day of August 1869, John E. Turton the trustee filed a petition setting forth the fact of the purchase by John L. Waring of “Lot No. 2 containing 459 acres 19 perches for $10,000, the distribution of the fund by the auditor’s report and Account A, by which as alleged, Benjamin F. and Mortimer W. Turton were each allowed the sum of $1,932.51 with interest from January 1st, 1845; charging that the certificate and admission of the former trustee of the payment of the purchase money by John L. Waring and his administratrix, was false, claiming that after allowing sundry credits there was still due by John L. Waring, to Benjamin F. Turton the sum of $368.36 with, interest from December 8th 1852; and to Mortimer W. Turton the sum of $956.95 with interest from the 23rd day of May 1859, on account of their distributive shares of the purchase money for the aforesaid “ Lot No. 2”; and praying a decree for a resale of “Lot No. 2” in default of payment of the said alleged balances, by the heirs at law of John L. Waring deceased. Accompanying the petition are two accounts marked respectively “ Exhibits B. F. T. and M. W. T.” in each ⁵⁴⁴ of which John. L. Waring is charged with “ Ain’t due for land purchased by decedent $1932.57,” and interest thereon from January 1st, 1845; and after allowing sundry credits, showing the balances due as above stated.

These accounts are verified by the oaths of Benjamin F. Turton, and Mortimer W. Turton respectively, and appear to have been exhibited in the Orphans' Court against the estate of John L. Waring as they each have the order of the Orphans’ Court endorsed thereon dated March 19th, 1867, “ that they will pass when paid.” ■ To this petition the appellants, the widow and children of John L. Waring filed their answer on the 15th day of January 1870, denying that any balance wras due on account of the real estate purchased by John L. Waring, and charging that if any portion of the purchase money was due as claimed, the personal estate of John L. Waring deceased, which was more than sufficient to pay all of his indebtedness, was first liable, and should be first exhausted, before the said real estate could be made liable ; also denying the right of John E. Turton, the trustee, to file said petition, he having been appointed trustee for the sole purpose of executing a deed. The appellants also plead the Statute of Limitations, and rely upon the same, and also upon a possession of twenty years of the land as a bar to the remedy sought by the trustee. A general replication was filed, and proof taken — and the Circuit Court upon the hearing of the cause on the 23rd day of April 1875, filed their opinion accompanied by an order without signature, rescinding the orders previously passed directing the execution of a deed to the heirs of John L. Waring, and requiring them to bring into Court the amounts alleged to be due to Benjamin F. and Mortimer W. Turton, or show cause to the contrary on or before the first Monday of June, 1875, and in default thereof ordering and decreeing a resale1 of “ Lot No. 2.” On the 7th day of June, 1875, the appellants filed as reasons, showing cause why they should not be required ⁵⁴⁵ to pay the said sums of money; and why the real estate should not be sold for the payment of the same, &c. 1st. “ Because no order of the Court had been signed by the Judges or either of them, requiring the appellants to bring said money into Court, and on failure thereof, decreeing a sale of the real estate' for the payment of the same.” 2nd. “ Because the respondents have filed their petition in this Court under oath, stating that since the argument of this cause, and the last hearing of the same, they have discovered additional proof unknown to these respondents at the time of the argument and hearing, which shows conclusively, the payment in full of the whole purchase money for said real estate, and praying a rehearing of the cause upon said supplemental proof which they are prepared to furnish to the Court without delay.” At the same time they filed their petition, alleging “that since the filing of the Court’s opinion (of April 23rd 1815,) the petitioners have discovered proof full and conclusive, not only that all the purchase money for said land was in fact paid to Wm. H. Turton, the trustee, in his life-time, but that he actually surrendered the bonds which had been executed by John L. Waring and his sureties for the purchase money, and your petitioners are now prepared to bring into Court said bonds, receipts and evidences of payment.” £ £ They further state that they were not aware of the existence of said proof until within a few days past, the said proof and papers being in the possession of said Violetta Waring an old and infirm lady, the widow and administratrix of the said John L. Waring, and were accidentally found by your petitioners, after a long search through a great mass of papers in the possession of said administratrix, connected with the settlement of her late husband’s estate. “ They further allege that it appears from an endorsement on the last bond given by John L. Waring and his sureties, for the payment of the purchase money, and ⁵⁴⁶ which fell clue od the first clay of January 1850, and from an affidavit of said William H.