Bannon v. Comegys

• Decision Date: 28 November 1888
• Citation: 16 A. 129,69 Md. 411
• Parties: BANNON v. COMEGYS et al.
• Court: Maryland Court of Appeals

16 A. 129

69 Md. 411

BANNON

v. COMEGYS et al.

Court of Appeals of Maryland.

November 28, 1888.

Appeal from circuit court, Anne Arundel county, in equity.

Bill for partition and sale by Michael Bannon against Benjamin Comegys, administrator of Eveline M. Comegys, and others. Demurrer sustained, and bill dismissed, and also order granted dismissing amended or supplemental bill. Plaintiff appeals.

Argued before ALVEY, C. J., and MILLER, BRYAN, MCSHERRY, STONE, and IRVING, JJ.

M. Bannon and J. I. Alexander, for appellant. J. Wilson Leakin, for appellees.

IRVING, J. In the month of July, 1873, appellant filed his bill in the circuit court for Anne Arundel county, praying for the sale of certain real estate described in the proceedings, and all the right, title, interest, and estate of all the parties to the bill, "and that the proceeds thereof might be brought into the court, and divided among the parties according to their respective rights and interests therein, and that their several interests and claims thereto might be determined by the court, and that multiplicity of suits might be avoided," and for such other relief as his case might require. Beyond the filing of the bill no further proceedings were had for 15 years, when the appellant asked and obtained leave to make additional parties. Against some of the parties interlocutory decree was obtained for non-appearance. Others appeared, and demurred on the ground of multifariousness, and because the plaintiff was not a tenant in common or part owner of the property, to justify his filing such bill; and, further, because the mortgage he once had on the property had been assigned away, and that he had no interest in the matter to give him standing in court. It is needless to cumber this opinion with the many recitals of the bill. It is sufficient for the purposes of this opinion to say that it discloses on its face that whatever interest the plaintiff ever had in the lands sought to be sold he had conveyed away by two deeds dated, respectively, the 4th of December, 1865, and the 30th of January, 1866. When he sold he took a mortgage upon the property, but that he had assigned, and had no interest in at the time he brought his suit. "That being so," the court below said in deciding the demurrer, "it is too plain for argument that, regarding the present bill as intended to be one for partition or sale under the provisions of the ninety-ninth section of article 16 of the Code, (Code 1878, art. 66, § 13,) the plaintiff is totally without standing in court to file the bill, being neither a joint tenant, a tenant in common, a parcener, nor a concurrent owner." The words we have italicized are the word3 of the statute descriptive of the interest a person must have to give the right to avail of the provisions of that section of the Code, and we fully agree with the circuit court that the plaintiff's bill showed he had no such interest. The court further says: "If, in view of its allegation that it would be for the benefit and advantage of all the parties to have the land sold, the bill is intended to be brought under the provisions of the act of 1868, c. 273, (Code 1878, art. 66, § 12,) it would seem to be equally clear that for want of interest the plaintiff is without standing to bring this bill under the act. In the language of the court of appeals in reference to this act, and the interest that a party seeking to avail of its provisions ought to show in himself, in the case of Newbold v. Schlens, 66 Md. 589, 9 Atl. Rep. 850, 'he has no right or estate in the property, and has no power to make conversion of the realty into personalty.' As a test of his interest, it may be asked when the sale shall be effected, and the fund produced brought into court to be distributed, as in partition, or to be dealt with under the provisions of chapter 273 of the act of 1868, what part of the fund could he claim in the partition to be made in the one case, and what part would be invested for his present or future benefit in the other? Clearly he would have no right which could be asserted against the fund in either case."

The court ruled the demurrer good, but retained the bill for the plaintiff to bring forward, for the considerations of the court, such amendments as he suggested it was possible to make to meet the difficulties the court had found in his way. An order was accordingly passed dated the 20th of February, 1888, allowing the plaintiff 15 days within which to bring to the court the amendments proposed to be made, reserving the right to the demurrants to contest the right to make the amendments that might be proposed. Without asking any further action of the court, and leave to file his proposed amendments, on the 8th of March, 1888, he filed a supplemental or amended bill, and ordered subpoenas for parties, which the appellees moved should be stricken out from files of the court, and should not be received for various reasons assigned, including laches, and also because the interest in the property asserted in the amended bill had been acquired since the filing of the original bill.

This amended or supplemental bill the circuit court ordered to be struck from the files of the case without prejudice to the plaintiff to file a new and independent bill, and the right to amend was disallowed, and the bill was dismissed. From this order and the preceding one, sustaining the demurrer to the original bill, the plaintiff appealed. We have fully considered the elaborate and able arguments of counsel, and have been unable to find any ground upon which the original bill could be sustained, or the amended or supplemental bill, as it is called, can be maintained, as a proper continuance of the original proceeding. We have been unable to find any authority for the position taken in argument that the covenant of warranty under which the plaintiff vested made him, in any sense, a concurrent owner to entitle him to maintain a suit for partition, or gave him any interest to enable him to ask the benefits of the act of 1868, c. 273. In finally disposing of the case the learned...