Young v. Diedel

Fewer, X, delivered the opinion of the Court. The purchaser of the property decreed to be sold in this case excepted to the ratification of the sale, on the theory that the court was without jurisdiction to pass the decree. The appeal is from an order overruling the exceptions and ratifying the sale. It was expressly determined by the decree that the real estate to which it referred could not he divided in kind among the parties to the cause, who owned the property as tenants in common, and the evidence in the ease fully justified that conclusion, but the hill of complaint omitted an allegation that such a division could not he made without loss or injury to the parties interested.

The contention is that an averment to that effect was essential to meet the requirements: of section 137 of article 16 of the Code, which provides as follows: “The court may decree a partition of any lands or any right therein, on the hill or petition of any joint tenant or tenant in common, or if it appear that said lands or right therein cannot he divided without loss ⁶⁷² or injury to the parties interested, the court may decree a sale thereof, and a division of the money arising from such sale among the parties, according to their respective rights.” The property decreed to he sold consisted of irredeemable ground rents in two lots of ground in the City of Baltimore, which the parties to the cause claimed as heirs at law of a deceased grantee, to whom the property had been conveyed by a deed which was a proper .subject of judicial construction in regard to the question as to whether it granted a fee simple or a life estate. It was the purpose of the bill of complaint to have the deed construed, and, if the title were adjudged to have vested in the grantee in fee simple, then to have the property sold and the proceeds divided among the grantee’s heirs at law, all of whom were parties to the proceeding. The bill also' requested the appointment of a receiver to collect the ground rents, and sell the property, under the court’s direction. A receiver was ■ duly appointed, by an interlocutory order, to collect the rents> and by the final decree he was further empowered and directed to make the sale which is the subject of the pending exceptions.

The court unquestionably had jurisdiction in the case for the purpose of construing the deed upon which the title of the parties to the suit depended. Equitable jurisdiction having been invoked and assumed for that purpose, it could rightfully be retained and