Williamson v. Montgomery

Bartol, C. J., delivered the opinion of the Court. On the former appeal between these parties, 37 Md., 421 , it was decided that the Orphans’ Court had jurisdiction to entertain the petition of the present appellees, and that they were entitled to the relief as prayed, provided they establish by competent evidence that there was an error in the survey of the land purchased by the appellant, whereby it was estimated to contain several acres less than it actually contained ; and provided the appellees were led into the error, in making their report of the quantity sold, by erroneous information communicated to them by the appellant, the purchaser. It was also decided that to entitle the appellees to relief, it should appear that they had discovered the error, for the first time, recently, before filing their petition, or in other words, that they had not been guilty of laches and neglect, in asserting their rights. These are substantially the propositions decided on the former appeal, and the case was remanded, to the end that ³⁷⁸ the facts might he ascertained, and the rights of the parties finally determined.

It appears from the record that the appellant filed a petition in the Orphans’ Court, praying that issues might he made up, and sent to a Court of Law for trial, in accordance with Art. 93, sec. 250, of the Code, and at the same time tendered twelve issues, and prayed that the same should he sent for trial. The appellees, on their part, objected to the seventh, eighth, ninth, tenth, eleventh and twelfth of said issues ; but made no objection to the first six ; and on their part, suggested three issues, as proper to be sent. The Orphans’ Court, by its order, directed the three issues tendered by the appellees, to be sent, and also the first six of those tendered by the appellant; but refused to direct the last six of those, suggested by the appellant; and from that order the present appeal was taken. We discover no error in the action of the Orphans’ Court.

There can be no question of the power of the Court to exercise its judgment in determining what facts were in issue between the parties, and material to be submitted to a jury for