Brown v. Thomas
| Decision Date | 14 June 1877 |
| Citation | 46 Md. 636 |
| Parties | JULIA BROWN, Assignee of JAMES W. GREEN v. PHILIP F. THOMAS and E. B. BATES, Trustees, and others. |
| Court | Maryland Court of Appeals |
APPEAL from the Circuit Court for Caroline County, in Equity.
The case is stated in the opinion of the Court.
The cause was argued before BARTOL, C.J., BRENT, MILLER, ALVEY and ROBINSON, J.
John B. Brown and George M. Russum, for the appellant.
Edward B. Bates and Philip F. Thomas, for the appellees.
This appeal is taken from an order of the Circuit Court for Caroline County, as a Court of Equity, overruling an exception of the appellant to an auditor's account, and ratifying the account to the exclusion of the appellant's claim.
The bill was filed for the sale of certain real estate for the purpose of partition among the parties to the cause. Foster Green and James W. Green, together with several others, were made defendants. Foster Green, by his answer, denied all right of the complainants in the land, and claimed exclusive right thereto by adverse possession. James W. Green, a younger brother of Foster Green, by his answer, stated that he was ignorant of the facts charged in the bill, being, at the time of their occurrence, an infant; and that if he ever had any share in the real estate mentioned, he was fully satisfied that it had been more than consumed and exhausted in his board, maintenance, and education, furnished by his brother, Foster Green; and that he set up no claim of right to or interest in the land.
Proof was taken, and the case submitted to the Court, and in March 1872, a decree was passed for the sale of the land, for the purpose of partition among the parties, and that Foster Green should account for rents and profits. In the written opinion of the Court, in reference to which by express terms the decree was passed, it was declared that Foster Green "should be allowed nothing for the support and maintenance of his brothers and sisters, he having been fully compensated by their labor, the fruits of which he enjoyed for all trouble taken and expense incurred in their behalf." This decree was never appealed from, and consequently it remains in full force. The land was sold by trustees under the decree in April, 1874, and the sale was finally ratified by the Court. The case was then sent to the auditor, who stated several accounts, both of rents and profits and the proceeds of sale. In these accounts the distributive share of James W. Green is treated as having been assigned to Foster Green. Upon the filing of the auditor's report the appellant, without the formality of petition, appeared in the cause for the first time, and describing herself as assignee of the interest of James W. Green, excepted to the auditor's accounts, because the distributive share of James W. Green was treated by the auditor as assigned to Foster Green. This exception was filed on the 7th of March, 1876, and to which the complainants interposed several objections, among others, that the appellant had not rightfully and properly appeared in the cause, and had not properly presented her claim, or the evidence of the assignment under which she made claim. The only evidence of the assignment is a paper purporting to be executed on the 22nd of May, 1876, and the same day filed in the cause,--some two months and a half after the exception was filed. There is no proof whatever of the execution of the paper, nor has it been in any manner admitted or recognized by the parties to be affected by it, so as to justify the Court in receiving it as evidence. But the Court below, taking the view that the answer of James W. Green operated as an equitable assignment of his interest to Foster Green, overruled the exception of the appellant, without at all passing upon the evidence of his title. The auditor's account distributing the share of James W. Green to the use of Foster Green was finally ratified, and it is from that order that the appeal is taken.
We are decidedly of opinion that the Court below was in error in supposing that the answer of James W. Green operated as an equitable assignment of his interest to his brother Foster Green. The only consideration that is suggested for such an assignment is the furnishing of board, maintenance, and schooling; but, as we have seen, the Court determined that Foster Green should be allowed nothing on that account, and the decree must be taken as...
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