Bolgiano v. Cooke

• Decision Date: 22 January 1863
• Citation: Bolgiano v. Cooke, 19 Md. 375 (Md. 1863)
• Parties: JOHN BOLGIANO, PURCHASER, v. EBER F. COOKE & WIFE, et al.
• Court: Maryland Court of Appeals

19 Md. 375

JOHN BOLGIANO, PURCHASER, v. EBER F. COOKE & WIFE, et al.

Court of Appeals of Maryland.

January 22, 1863

Trustees appointed by decrees of a Court of Equity, to sell real estate, are agents or instruments of the Court; sales made by them, are transactions between the Court and the purchaser, and as such, are regulated by all the principles of equity applicable to judicial sales.

Before the ratification of a sale made by authority of a Court of Equity, all objections within these limits are open for consideration. The sale will be set aside upon proof of error, mistake, misunderstanding or misrepresentation as to the terms or manner of sale; it must appear to be in all respects fair and proper, or it cannot receive the sanction of the Court.

A Court of Equity sells only the interest and estate of the parties to the cause, and the doctrine of caveat emptor applies to all such cases.

A purchaser, discovering a defect of title at a proper time may be relieved from his purchase by asking a rescission of the sale.

Where a Court can see that injury will be inflicted by the ratification of a sale upon a party not in default, the sale should not be ratified.

Pleadings in equity are not framed with the same precision and exactness as at law. Facts are often indirectly alleged or expressed by necessary implication. It is sufficient to present substantially the facts on which Acts of Assembly are predicated, when applying for relief under any of them.

The Acts of 1785, ch. 72; 1816, ch. 154; 1818, ch. 133; 1818, ch 193; and 1835, ch. 380, being " in pari materia, " are to be construed together; they import that any interest or estate at law or in equity, in possession or remainder, belonging to infants, held in common or separately, in real estate, may, upon proper application by any of the parties in interest, or prochein amis of the infants, upon the Court being satisfied it is for the interest and advantage of the parties, be sold by decree of the Court.

An original petition alleged that W. M., deceased, by his last will, duly proved and recorded, devised certain real estate to trustees, for the benefit of his two nieces, E. and F for life, with remainder to their children and their heirs; that the trustees named in the will, save two who were discharged, declined serving, and that C. F. M. was appointed trustee in their stead; that the said real estate was unproductive, and it would be beneficial for the infant children and for all parties interested in said devise, that the said real estate should be sold; that F. and her husband, having no children, had conveyed their interest to the petitioner, and a subsequent petition filed in the cause, stated that F. had since died without issue.--HELD:

That these averments substantially embrace all that is required by the Acts of Assembly, and show such an interest in the parties to the proceeding, as authorized the Court to decree the lease or sale of the premises, if they were satisfied it was for the interest and advantage of the infants.

The allegations of a petition being sufficient to give jurisdiction, no demurrer to the petition for that cause could have been sustained. This being the case, neither erroneous action by the Court after the filing of the petition, nor defective proof could effect the question of jurisdiction.

The Act of 1818, ch. 133, makes it discretionary with the Court to act upon the report of the commissioners, or to examine witnesses, and have other testimony. The only indispensable prerequisite is, that " under all the circumstances, the Court shall be satisfied that a sale would be for the interest and advantage of the infant or infants."

Jurisdiction having been acquired by a Court, it follows, as a legal consequence, that the title of the purchaser to the interest of the party decreed to be sold, cannot be affected by any apparent defect of proof.

The law of the decree must be executed; it is binding upon all parties and privies, unless reversed upon appeal, and the circumstance that some of the defendants were minors, does not make them an exception to the rule.

Where an original decree under which a sale had been made, had been passed ten years, and no appeal had been taken, (no time being reserved to infant defendants within which to appeal in such cases, after coming of age; ) although a bill of review or an original bill to set aside the decree for fraud might be filed by adult parties, or by infants after coming of age, a purchaser objecting to a sale under such a decree, must state affirmatively facts which would justify the apprehension that such a contingency might occur.

It is no objection to the ratification of a sale made under a decree, that a bill was depending at the time of the sale to vacate the decree, where the grounds for impeaching it are not stated, and it does not appear that any order was passed to restrain the proceedings of the trustee.

The office of a trustee's bond is not the benefit or protection of the purchaser, as such; the qualification and sufficiency of the sureties, is matter for the Court or officer authorized to approve, which being done, it is not competent for the purchaser, by exceptions to the ratification of the sale, to review the action of the Court.

The objection to the ratification of a sale, of want of due notice, like all others of fact, must be supported by preponderating evidence sufficient to set aside the report of the trustee, which being made under the sanction of an oath, is entitled to full credit, unless contradicted by conclusive testimony.

APPEAL from the Circuit Court of Baltimore city.

This is an appeal from an order of the Circuit Court of Baltimore city, passed on the 7th of July 1859, overruling exceptions filed by the appellant to the ratification of a sale of certain lands made to him by Eber F. Cooke, one of the appellees, who was also the trustee (appointed in the place of a former trustee, who had retired from the trust) to make sale of said lands in pursuance of the original decree in the case, passed on the 11th of March 1851. The case is stated in the opinion of this Court.

The opinion of the Court below, (KREBS, J.,) sustaining the order appealed from, was as follows:

" In the first and second exceptions of John Bolgiano, purchaser of part of the property reported by the trustee to have been sold by him on the 10th day of May 1859, he objects that the proceedings in the cause are not according to law and equity; that there is no proof of the infancy of the heirs, who are alleged in the bill to be infants; and because it is not proved who are the heirs of the devisee for life, under the will filed in the cause, and that therefore he cannot get a good title to the property which he so purchased.

The decree under which the trustee made this sale, was passed by the late Baltimore County Court, on the 11th day of March 1851, and must be presumed to have been passed upon due proof of all the facts and circumstances that would have authorized such a decree, and after such proceedings as were required by law to entitle the complainants to it. There was no appeal from the decree, nor was any bill of review, or for rehearing or other proceeding resorted to by any of the parties interested, for the purpose of shewing that it was improperly passed; and it is now too late to impeach it, unless for fraud, or mistake, or surprize, clearly proved. The infants named in the bill were regularly made defendants, and duly summoned, and I am of opinion that it absolutely binds all persons who were parties to the proceeding. Hunter vs. Hatton, 4 Gill, 115. Whether all the heirs of the devisee for life were made parties, is an enquiry which the exceptant has no right to make. The Court sold nothing but the estate of those who were parties, and were bound by the decree, and there was nothing in the conduct of the trustee, or in the circumstances of the sale, to exempt the purchaser from the operation of the rule, " caveat emptor, " applicable to such sales.

The third exception, which objects to the validity of the trustee's bond, " because it is not in pursuance of the decree, and because one of the infant defendants is a surety on the bond," is not sustainable as an objection to an order for final ratification. Dawes vs. Thomas, 4 Gill, 333. The fact that a trustee, under a decree for a sale, made a sale without having given any bond, will not be regarded by the Court as an insuperable objection to a final ratification. Speed vs. Smith, 4 Md. Ch. Dec., 410. In cases, however, where the bond is defective, or omitted, the Court will not ratify the sale until a good and sufficient bond has been filed. There being no evidence in the cause to shew that this surety was an infant when he executed this bond, I shall not require a new bond to be given by the trustee, if he shall file satisfactory proof, in the form of affidavits, that the said surety was of full age at the time.

The objection made by the purchaser, that said plat referred to by the trustee in his report of sales, is missing from the proceedings, can be removed by the trustee filing under his own oath, a duly proved copy of the said plat.

I must therefore overrule all of the exceptions, except that which shews that the surety in the trustee's bond was an infant; and will pass an order ratifying the sales when a good bond shall appear to have been filed."

By the final order of ratification, the Court below having been satisfied as to the sufficiency of the trustee's bond, all of the said exceptions were overruled.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH and COCHRAN, J.

E. Beatty Graff, for the appellant:

(1.) The decree of the 11th March 1851, and all orders and...