Young v. Frost

Tuck, J., delivered the opinion of the court. So much of the present record-as was before the court on the former appeal, is sufficiently stated in 5 Gill, 287 , On that appeal, the decree of Allegany county court, as a court of equity, was reversed, and the cause remanded for further proceedings. After which, to wit, on the 17th May 1848, the appellant, (the complainant below,) filed his petition stating, that the defendants, Meshack and Isaiah Frost, had conveyed away parcels of the lands covered by the decree ; shewing the names of the grantees, and the dates of the conveyances : and praying that a commission might issue to make partition of the coal according to the decree of the Court of Appeals. A commission was issued, and after-wards, the commissioners made a report, suggesting that difficulties were presented by reason of these conveyances, the complainant claiming one-third of all the coal that the parties owned at the date of the agreement, in 1828; and the defend ³⁹³ ants insisting that the commissioners should look at the property as it stood on the day of the filing of the bill, and divide said coal as the parties were seized of it at that time;” and they asked the court’s instructions as to the mode of making the partition.

In the further progress of the cause, an agreement was filed, by which it appeared that the town of Frostburg was laid out in the lifetime of the father of the defendants, as the lands devised by him to his sons : that these town lots were sold to different persons, at various times; some before the agreement of 29th October 1828; some between that date and August 1843, (when Young purchased for Neff;) others after that time and before this bill was filed, (17th February 1845;) and others since the commencement of the suit; that these lots contained in all, about fifty seven acres; and were sold by the defendants, who received the purchase money. It also shews that the purchasers of the lots took possession of them, that they were bona fide purchasers for value, without notice of the complainant’s claim, or the title under which he claims, and that they were, at the time of filing the bill, and continued in adverse possession of the same, claiming title in fee. The agreement, however, stipulates “that notwithstanding its admissions, the question shall still be open.” “Whether the effect of the said sales and conveyances by Meshack and Isaiah, to bona fide purchasers without notice at the time of said sales and conveyances, of the claim of the complainant, or of the agreement under which it is made, was to give a full and perfect title to the purchasers of said lots, or merely to transfer the right and interest of the said Meshack and Isaiah.” The answer of Meshack and Isaiah Frost to this petition, denies the right of the complainant to the instructions prayed for, and insists, that by these conveyances, they proposed to sell, and did sell only their own right, title and interest in these lots, and not that of any other person, They also aver that Neff had knowledge of these sales, and permitted the purchase money to be paid without giving any notice of his claim; and that the purchasers never heard of any such claim until this bill ³⁹⁴ was filed. They contend also that the complainant’s claim, under the agreement of 1828, is a right to the thing, and not a personal demand against them; that if this coal has. been lost by his own neglect, he cannot have any indemnity from them; and that the commissioners should malee partition of the coal in the lands which they find still in the possession of the parties, and not of the coal held adversely by strangers, who are not parties.

A commission was issued and proof taken, to which it is unnecessary particularly to refer. A partition was also made in conformity with the instructions of the coal in the lands held by the complainant, and defendants Meshack and Isaiah, at the date of the- filing of the the bill, to wit, 17th February 1845; and making no allowance for, nor taking notice of the coal under the lots sold'by said Meshack and Isaiah, prior to the filing of the bill. From the decree ratifying this partition, the present appeal is taken. It is coni ended, on the part of the appellant, that the very questions which we are called upon now to consider, were conclusively decided by the decree of this court, in 5 Gill 314 ; and that the defendants therefore could not, when the cause was remanded, set up the defence which they relied upon, in, opposition to the pretensions of the complainant.

The counsel for the appellees, however insist, that the decree which was heretofore reviewed, being interlocutoiy and not final, this court is not concluded by the decision on that appeal. If that was the character of the decree, and the appeal did not lie, we think the objection cannot now be made. 3 Howard, 413 . But the case was within the provisions of the act of 1845, ch. 367, the court having “determined questions of right between the parties, and directed an account to be taken, on the principle of that determination,” and though not a final decree, the decision of the Court of Appeals must be taken as conclusive, on all “points which were made before the court of Appeals, or which were presented by the record,” 1832, ch., 302, ’6, and no error can be imputed to the court below, if its subsequent proceedings have been in conformity with the principles of that decree. 7 Gill, 244 . 7 Gill, 333 . ³⁹⁵ We must look to the decree of the court, to ascertain the scope and extent of their decision, from which, it is manifest,that the alleged agreement between the Frosts and Neff, was established; that Young, as assignee of Neff, was entitled to have execution of the same, according to the construction asserted in his bill, and that he was entitled to partition of the coal, according to that claim. And the cause was remanded for partition, upon these principles, and the rules of equity.

The counsel for the appellees, however contend, that the decree must be considered with reference to, and as conclusive, only in view of the case then before the court; and that, as the matter subsequently brought into the cause, materially changed its character, by presenting new equities between the parties, it is competent for this court now to mould its decree, according to the case disclosed by the whole record. Whatever weight this view may be otherwise entitled to, it cannot change the construction placed upon the agreement. Nor do we perceive how these alleged new equities can be allowed to avail the defendants, except in disregard of the decree of the Court of Appeals, both as to the right of the appellants, to a specific performance of the agreement, and as to the character and extent of his relief. This case was before the court below upon the bill, answers, and proofs.

The defendants had contested the right of the complainant to the relief he sought. And the court had decided the cause upon the merits as there presented. The Court of Appeals, in renewing that decision, passed a decree by which they determined the questions of right in issue between the parties, and remanded the cause, that the appellant might have relief in the court below, according to the law of the case, as there established by this court. The facts relied on by the defendants, after the cause was remanded, had occurred before the first decree, and might have been made part of their defence to the original bill, and we think should have been presented then.

Every person is bound to take care of his rights, and to vindicate them in due season, and in proper order. This is a sound and salutary principle, intended to prevent litigation ³⁹⁶ and to preserve peace. 1 Johns. Cases, 502. 6 Gill and Johnson, 312. If this were an application to let in the defences, now relied on, by way of amendment or bill of review, the appellees would be met by a very stringent rule, that which requires an affidavit, that the party did not know before of the circumstances on which the application is made. 6 Harris and John., 311.

Md. Ch. Pr., 62, 179. The effect of decisions by the Court of Appeals, upon subsequent proceedings in the cause, has been fully considered in a recent case in this court. McClellan vs. Crook, 7 Gill, 333 .

A party applied to the chancellor, after the cause had been remanded by the Court of Appeals, to be allowed by way of credit, for certain rents which accrued, pending the appeal, and which were within the principles established by the Court of Appeals, but could not have been introduced into the cause before. The chancellor refused the application, and this court said that to have granted the relief “necessarily required the chancellor to open the decree of this court, which was intended to be conclusive on the chancellor.” * * * “Upon the record before the chancellor, and upon the questions within that record, this tribunal has acted, and passed a definite decree, in relation to the entire subject presented to the chancellor and to this court Thus the whole subject then in litigation, has been finally disposed of by the decree of this court. That decree has become the law of the case, and the chancellor cannot otherwise deal with the matters, thus adjudicated, than in the form prescribed.” In that case equities depending on the principles of the decree were rejected, because of its conclusiveness; although they arose, after the decree of the chancellor was passed, and could not have been brought before the Court of Appeals, when the case was before that tribunal; and although they were after-wards presented to the chancellor, before the decree of this court was executed, and the mortgaged estate sold. Here the matter had arisen, and was known to the parties, before their answer were filed, and, if available at all, was proper to be presented at that time.

The subjects then in litigation ³⁹⁷ were the agreement, specific performance, partition, and account, as asserted in the bill of complaint. The facts now-relied on, as sufficient to warrant this court in re-moulding the decree of the Court of Appeals, were pertinent to the last three of these questions; and not having been introduced before “these subjects of litigation were disposed of.” We think it cannot be done now, without “opening the former decree of this court, which was intended to be conclusive.” If it were newly discovered matter, sought to be availed of in a proper form of pleading, the case might rest on different principles. But it is said that further proceedings were to be had not only according to the principles of the decree, but also “according to the rules of equity;” and that this part of the decree authorises the court to examine the whole record, and to decide according to the equity of the case as now presented. We do not think that these words designed to impair in any degree, the conclusiveness of the decree, as to any rights that had been thereby determined.

There was a very important judicial duty to be performed by the court below, in carrying that decree into effect. A partition was to be made and accounts stated. A certain interest in the coal under these lands had been adjudged to the appellant, which was to be laid off to him by surface measurement, in severalty, or by separate alternate enjoyments of the whole for limited periods, or by a division with compensation for equality; or by some other mode that would effect justice among the parties, in view of the peculiar and complicated nature of the property, and its condition, as to rights, modes of enjoyment, convenience, accessibility, and the conflicting causes of other persons. .1 Story Eq., 656, a. b. These and the accounts, were matters to be settled according to the rules of equity; but in subordination to the law of the case, and the rights of the parties as established by the decree.

It sometimes happens that collateral proceedings are necessary to aid