Columbia Paper Bag Co. of Baltimore City v. Carr

• Decision Date: 15 November 1911
• Citation: 82 A. 442,116 Md. 541
• Parties: COLUMBIA PAPER BAG CO. OF BALTIMORE CITY v. CARR et al.
• Court: Maryland Court of Appeals

82 A. 442

116 Md. 541

COLUMBIA PAPER BAG CO. OF BALTIMORE CITY v. CARR et al.

Court of Appeals of Maryland

November 15, 1911

Appeal from Circuit Court No. 2 of Baltimore City; H. Arthur Stump Judge.

Action by Christiana Kaiss and others against Edwin C. Kaiss and others. There was a judicial sale of land to the Columbia Paper Bag Company of Baltimore City, which filed exceptions to confirmation of the sale. From a judgment of confirmation the purchaser appeals. Affirmed.

Wm. E Hoffman, for appellant.

Charles A. Marshall and E. N. Rich, for appellees.

BURKE J.

By a decree of the circuit court No. 2 of Baltimore city, passed in the case of Christiana Kaiss and others v. Edwin C. Kaiss and others, the fee-simple property mentioned in the proceedings in that case was decreed to be sold, and the appellees on this record were appointed trustees to make the sale. They sold the property at public auction to the appellant and reported the sale to the court. An order of ratification nisi was passed, to which exceptions were filed by the purchaser. It also filed a petition asking for an abatement of the purchase price. Testimony on the exceptions and the petition was taken in open court, which dismissed the petition for an abatement, overruled the exceptions, and ratified the sale. This appeal is taken from those orders.

The precise grounds upon which the appellant relies to vacate the sale, are stated in the exceptions, which are here transcribed.

"First. Because the proceedings herein are irregular and insufficient, and not in accordance with the legal requirements for a sale of the property in these proceedings under the decree herewith.

"Second. Because the property advertised and sold hereunder by the trustees herein, is not the same to be sold by them under the decree in these proceedings.

"Third. Because the property advertised and reported as sold to this exceptant sets forth that the same runs along Lawrence street, and could be changed from its present use, so as to have frontage on Lawrence street, when in fact it does not so run, and said change could not be made.

"Fourth. Because a strip of ground 18 feet 9 inches, lying between this property and Lawrence street, was advertised and sold as being open and for public use, when, in fact, said strip is private property.

"Fifth. Because the property in these proceedings to be sold under the said decree is of much less value and less desirable than the property advertised for sale and sold by said trustees, as set forth in said report of sale.

"Sixth. And for other reasons to be set forth at the hearing of these exceptions."

This court has announced in many cases the principles which control it in passing upon exceptions to trustees' sales. It is said, in Bolgiano v. Cooke, 19 Md. 375: "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 purchasers, and as such are regulated by all the principles of equity applicable to judicial sales." Glenn v. Clapp, 11 Gill & J. 1; Duvall v. Speed, 1 Md. Ch. 229; Goldsborough v. Ringgold, 1 Md. Ch. 239; Perren v. Keithly, 9 Gill, 412.

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 the sale; and it must appear to be in all respects fair and proper before it can receive the sanction of the court. Tomlinson v. McKaig, 5 Gill, 276, 277.

The court of chancery, however, sells only the interest and estate of the parties to the cause, and the doctrine of "caveat emptor" applies to all such sales. Farmers' Bank v. Martin, 7 Md. 342, 61 Am. Dec. 350.

A purchaser discovering a defect of title at a proper time may be relieved from his purchase by asking a recission of the sale. Duvall v. Speed, 1 Md. Ch. 299; Kauffman v. Walker, 9 Md. 229.

When a court can see any injustice will be inflicted by the ratification of a sale upon a party not in default, the sale should not be ratified. Penn v. Benner, 12 Gill & J. 113.

It is said in Kauffman v. Walker, supra, that "judicial sales will not be set aside for causes that the parties in interest might, with a reasonable degree of diligence, have obviated. Every intendment will be made to support them. But where the court can see that injustice will be inflicted by the ratification of a sale upon a party not in default, by reason of the carelessness or omission of its own officer, it should interfere to prevent it."

We will consider the questions raised on this record in the light of these authorities.

By deed dated August 15, 1881, the Baltimore & Ohio Railroad Company acquired title to the lot of ground located at the southeast corner of Fort avenue and the east side of Lawrence street. This lot had a frontage of 18 feet 9 inches on the south side of Fort avenue, and ran parallel on the east side of Lawrence street for the distance of 595 feet. The railroad company appears to throw this strip open to public use; there are three railroad tracks on Lawrence street. The distance between the property sold and the east track is about 28 feet, in which distance is included the 18 feet 9 inch strip acquired by the railroad company, the whole of which space is open and used by the public, and is apparently a part of the public highway, and has been so used, without obstruction or hindrance of any sort, for more than 20 years.

The property sold was formerly owned by W. C. Kaiss, who died intestate in May, 1909. He acquired title to the property under a deed, which was filed as part of the bill in the above case, from John J. Myer, trustee, and others, dated June 6, 1888. This deed described the property as "being also at the distance of 18 feet 9 inches southeasterly from the corner formed by the southwest side of Fort avenue and the southeast side of Lawrence street, and running then eastwardly binding on the southwest side of Fort avenue, 115 feet 6 inches; thence southwesterly at right angles to Fort avenue 745 feet, more or less, to a point where formerly the middle of a creek or marsh; thence northerly, binding along the middle of said creek and on ground formerly belonging to J. S. Gittings estate, 175 feet 3 inches, more or less, to intersect a line drawn from the beginning southwesterly at right angles to Fort avenue; and thence reversing said line and binding thereon northeasterly 620 feet, more or less, to the beginning."

A diagram is here inserted, which shows the location of the property.

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The trustees offered the property for sale at public auction, on the premises, on November 1, 1910, and at this sale the appellant, acting through its superintendent, John McIlvain who was also one of its directors, and authorized to bid, became the purchaser of the property for the sum of $16,600.

Immediately after the sale McIlvain signed a memorandum of purchase in these words:

"Baltimore, November 1, 1910.

"I have this day purchased at public sale, for the sum of $16,600, upon the terms and conditions as announced by the auctioneer, at said sale, viz.: One-third cash, balance in six and twelve months, or all cash, at purchaser's option, the fee-simple property known as southeast Fort avenue and Lawrence street, and more particularly described in the annexed advertisement. John McIlvain."

"Witness: Samuel W. Pattison."

At the time of the sale, this property was used as a coalyard, in which an extensive coal business had been conducted for a number of years. It was improved by a coal switch and overhead trestle, a large two-story brick stable, shedding, office building, and a sawmill. There was a board fence on the west side of the lot along the eastern-most line of the 18 feet 9 inch strip owned by the railroad. There was a gateway in this fence, used by wagons going from the street to and from the coalyard. There is no dispute as to the situation and surrounding conditions at the time of the sale and for many years prior thereto.

We find as a fact that there was attached to the contract or memorandum of purchase, above set out, at the time it was signed by John McIlvain, the following advertisement of sale, being the one upon which the trustees had agreed, after careful consideration, contained an accurate and proper description of the property for the purposes of advertisement:

"Trustees' sale of valuable fee-simple property, situate 18 feet 9 inches east from the corner of Fort avenue and Lawrence street. By virtue of a decree of the circuit court No. 2 of Baltimore city, the undersigned, trustees, will sell at public auction, on the premises, on Tuesday, the 1st day of November, 1910, at 3 o'clock p. m., all that valuable lot of ground, in fee simple, in Baltimore city, beginning on the southwest side of Fort avenue, 18 feet 9 inches southeast from the corner formed by the intersection of the southwest side of Fort avenue and the southeast side of Lawrence street; thence southeasterly on the southwest side of Fort avenue 115 feet 6 inches, and running thence southwesterly at right angles with Fort avenue 745 feet, more or less, to a point where was formerly the middle of a creek or

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