Darcey v. Bayne

• Decision Date: 06 April 1907
• Citation: 66 A. 434,105 Md. 365
• Parties: DARCEY et al. v. BAYNE et al.
• Court: Maryland Court of Appeals

66 A. 434

105 Md. 365

DARCEY et al. v. BAYNE et al.

Court of Appeals of Maryland

April 6, 1907

Appeal from Circuit Court, Prince George's County, in Equity Geo. C. Merrick, Judge.

Action by Mary Ellen Bayne and another against William A. Darcey and others. From an order overruling a demurrer to the bill of complaint, defendants appeal. Reversed and remanded.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS JJ.

T. Van Clagett, for appellants.

Clarence M. Roberts, for appellees.

ROGERS J.

This case comes before us for review upon an appeal from an order of the circuit court for Prince George's county overruling a demurrer which had been interposed to the bill of complaint filed in the case; and we are asked to dismiss the appeal, because an order overruling a demurrer is not in the nature of a final decree or order, and that, therefore no appeal lies.

This question has been repeatedly, and we think definitely, settled by the decisions of this court. In the case of Chappell v. Funk, 57 Md. 472, Judge Miller, delivering the opinion of this court, says: "By the law regulating appeals from courts of equity (Code, art. 5, § 20), an appeal is allowed 'from any final decree or order in the nature of a final decree,' and it is well settled that an order of the latter character to admit of an appeal must be one which finally settles some disputed right or interest of the parties." Dillon v. Insurance Co., 44 Md. 395. A demurrer to the entire bill does finally settle (so far as the court passing it can do so) a disputed right of the parties. It is true that demurrers are no favorites of courts of equity, nor are they often resorted to, but it is the undoubted privilege of a defendant in an equity suit to demur to the bill. By so doing he challenges and denies either the jurisdiction of the court, or that the bill on its face states any case which the defendant can be lawfully required to answer, or otherwise notice or defend. He says in fact to the complainant, you have no right to bring me into a court of equity upon this case. If the demurrer be sustained, the complainant is out of court; and it is conceded he can then appeal, for by such action the right to proceed with his case is finally settled against him, and in favor of the defendant. So if the demurrer be overruled, the court by its order to that effect determines and settles in favor of the complainant and against the defendant the disputed right of the former to proceed in equity upon the case made on the bill, and it seems to us, not only convenient, but most important, for both parties that such a question should be finally settled in limine, and by an appeal if necessary, before the costs and expenses of a long litigation have been incurred. An order settling either way a right so important as this does not, in our judgment, fall within the class of mere interlocutory orders which can only be reviewed upon appeal from the final decree in the cause. Nor do we fear or anticipate that by allowing appeals from such orders the privilege will be abused to the prejudice of suitors or the delay of justice. It has not been so in the past, although the appeal has been entertained and acted on by the appellate court, in every case where one has been taken from such an order. And even if we now were inclined to put a different construction upon the statute, and deny the right of appeal in such cases, we should find ourselves embarrassed if not precluded from so doing by the strong and numerous precedents in favor of the right. Alexander's Ch. Pr. 183; Wolf v. Wolf, 2 Har. & G. (Md.) 382, 18 Am. Dec. 313; Wilson v. Wilson, 23 Md. 162; Kunkle v. Markell, 26 Md. 390; Bank v. Fowler, 42 Md. 393; Trego v. Skinner, 42 Md. 426. The motion to dismiss must therefore be overruled.

We now come to the second point in the case, viz.: The sufficiency of the averments in the complainants' bill. The bill recites the proceedings whereby the appellant Wm. A. Darcey became the tenant in common, together with the appellees, of the property in question, and the mortgage from Edward E Darcey and his second wife to Eliza J. Andrews (which mortgage was placed on the property before the title of the said Edward E. Darcey thereto had been in any way assailed) alleges that the mortgagee acquired a title which could not be successfully attacked; that interest on said mortgage was paid by the appellee Mary Ellen Bayne and that she obtained a tax deed to said property; that the mortgage was foreclosed, and the property sold and was conveyed to Wm. A. Darcey; and that because he was cotenant at the time of said sale each of his cotenants is by law entitled and bound to contribute his or her proportionate share of the purchase price with interest, and that upon payment of same each of them should be declared to own an undivided one-third interest in said property. The complainants in their bill neither allege that they had tendered to Wm. A. Darcey their proportion of the purchase money, nor offered to do so, but pray a sale of the property as if this were an ordinary suit for partition. To this bill the defendants filed a general demurrer. The exact language of the...