Dorsey's Lessee v. Garey

• Decision Date: 12 May 1869
• Citation: Dorsey's Lessee v. Garey, 30 Md. 489 (Md. 1869)
• Parties: JOHN T. B. DORSEY'S Lessee v. JAMES S. GAREY.
• Court: Maryland Supreme Court

30 Md. 489

JOHN T. B. DORSEY'S Lessee v. JAMES S. GAREY.

Court of Appeals of Maryland

May 12, 1869

APPEAL from the Circuit Court for Howard County.

The cause was argued before BARTOL, C.J., STEWART, BRENT, GRASON MILLER, ALVEY and ROBINSON, J.

Levin Gale and Thomas G. Pratt, for the appellant:

The Bill in this case was not a proceeding strictly in rem; it did not describe any particular property; there was no levy, schedule, appraisement or return of it. It only attacked the land through the parties. Hollingsworth vs Barbour, 4 Peters, 466; Harris vs Hardeman, 14 How., 343; Clark & Jackson vs. Bryan & Lunt, 16 Md., 178; Woodruff vs. Taylor, 20 Vermont, 66, 72; Denning vs. Corwin, 2 Wend., 648; McKim vs. Mason, 3 Md. Ch. Dec., 212.

If the absent defendants had not been made parties by publication, no decree could have bound their interests. Code of Pub. Gen. Laws, Art. 16, secs. 88, 98.

Section 129, authorizing a sale before final decree, must be taken as to non-residents and infants, as being subject to and qualified by those sections, otherwise you would have this anomalous condition: that if you advertise a non-resident to come in at a future day, thus putting him off his guard, you would have a right to sell at once; whereas, if you had given him no notice, instead of a false one, he certainly would not be bound.

The proceeding under this section is not in pursuance of the general powers of the Chancery Court, but is a special and limited one, and must be strictly construed and strictly pursued. Shivers vs. Wilson, 5 H. & J., 130; Wickes vs. Caulk, 5 H. & J., 43; Owings vs. Worthington, 10 G. & J., 292; Thatcher vs. Powell, 6 Wheat, 119; McCabe vs. Ward, 18 Md., 505.

It is repugnant to every feeling of natural justice, that a man's property should be taken without either actual or constructive notice; in this case the notice by publication was so far from being a notice that would enable the parties to guard and defend their rights and interests against these proceedings, that it lulled them into a false security, which was worse than no notice. McKim vs. Mason, 3 Md. Ch. Dec., 211; Regents of the University of Md. vs. Williams, 9 G. & J., 408; Penobscot Railroad Company vs. Weeks, 52 Maine, 456; McCabe vs. Ward, 18 Md., 505; Shriver's Lessee's vs. Lynn, 2 How., 59.

It cannot be supposed that the Legislature could have contemplated any such effect from this law, and, if it did so, it is so contrary to constitutional and legislative principles, that the Court should not hesitate to declare such a provision beyond the power of the Legislature. Regents of the University of Md. vs. Williams, 9 G. & J., 408.

James Mackubin, George W. Sands and Henry Stockbridge, for the appellee:

If a Court of Equity was to be appealed to in this case, the Circuit Court of Howard county was the proper tribunal. In that county far the larger portion of the estate to be affected by the proceedings was located, and there was the residence of all the parties whose interests were involved in the proceedings, and who resided in the State of Maryland. These parties were all duly summoned, appeared, and answered, and publication for the non-resident defendants was ordered, and duly made in accordance with the Acts of Assembly and the practice of the Courts of our State.

Nothing more was needed to give the Court complete control of all questions involved in the case. Here was a proper subject matter,--all persons interested made parties--all resident parties summoned--and all non-resident parties notified by publication.

The Court thus acquired, and had complete jurisdiction over the persons and the property designed to be affected by the suit. Any errors or irregularities which might occur, were proper subjects of appeal to the Court of Appeals, but were not subject to review in the same Court sitting as a Court of law.

Nor could the alleged error (if it were an error) of passing an order for the sale of the property before the expiration of the time limited for the appearance of the non-resident defendants, affect the question or deprive the Court of jurisdiction.

That order was no adjudication of the rights of the parties. It was but a recognition of the obligation imposed upon the trustees by the will, which created the fiduciary relation, and which was proven to the Court by the affidavits and exhibits which had been filed in the cause. It meant just what the order said and no more--that the "Court was satisfied clearly by the proof, that at the final hearing of the cause a sale of the real estate mentioned in the proceedings would be ordered," and it therefore promptly and wisely, for the benefit of all parties, passed the order of sale as authorized by the statute in such cases. Code of Pub. Gen. Laws, Art. 16, sec. 129.

The power conferred by the statute, and exercised by the Court in this case differs in no respect from that conferred and exercised in other cases for the preservation of the property in controversy, and the protection of the rights and interests of the parties litigant. It is precisely analogous to that exercised in cases of injunctions and receivers. It is the same as that exercised in cases of attachment. Code of Pub. Gen. Laws, Art. 10, sec. 27; O'Brien vs. Norris, et al., 16 Md., 122.

The sufficiency of the proof which satisfied the Court, or the legal correctness of its action, it is not competent for the Court in the case now before it, to examine, because "the records or memorials of the judges of the Court of record, import in them such uncontrollable credit and veritie, as they admit no averment, plea or proof to the contrarie."--1 Coke's Inst., 260 a.

The rule is well settled in Maryland in conformity with this anthority of Lord Coke. Calwell vs. Boyer, 8 G. & J., 148; Fitzhugh, et al. vs. McPherson, 9 G. & J., 71; Powles, et al. vs. Dilley, et al., 9 Gill, 241; Ranoul vs. Griffie, 3 Md., 54; Wilson, et al. vs. Ireland, 4 Md., 444; Cook's Lessee vs. Carroll, 6 Md., 112; Long vs. Long, 9 Md., 348.

If the equity proceedings operated any injustice to the appellant, his redress should have been sought in that Court sitting in Equity, and in the cause pending there, and not in the present action.

BARTOL C.J., delivered the opinion of the Court.

The appellee, who was defendant below, claimed title to the land in controversy in this case, under the deed of the 18th day of November, 1864, from James Mackubin, trustee, who was appointed by the Circuit Court for Howard county, sitting in equity, by its order passed on the 6th day of January, 1864, in a cause wherein Mary A. T. Thompson, by her next friend, and others, were complainants, and John T. B. Dorsey, the appellant, and others, were defendants. That order empowered the trustee to sell the land mentioned in the proceedings, and the appellee, having purchased a part thereof, being the parcel of land now in controversy, and having complied with the terms of sale prescribed by the order, and the same having been reported and ratified, the trustee executed and delivered to the appellee the deed under which he claims title.

At the trial, the appellant took two bills of exceptions, the first to the admission in evidence of the equity proceedings and the trustee's deed offered by the appellee; and the second, to the granting of the appellee's prayer, which virtually instructed the jury that the proceedings in the equity cause, if found by them, and the sale and conveyance by Mackubin, the trustee, to the appellee, were sufficient to defeat the appellant's action.

These exceptions present substantially the same question, that is, the legal force and effect of the action of the Circuit Court sitting in equity, and the proceedings thereunder to pass the title to the appellee.

In the examination of this question, we are not called on to consider whether the proceedings in the equity cause were in all respects regular, or in conformity with the rules of the Court, or the general rules regulating chancery proceedings. No principle is more firmly established, or more constantly asserted by Courts of justice, than that mere irregularity or error in the proceedings of a Court of competent jurisdiction can never be discussed collaterally in another suit. This principle has been recognized and asserted by this Court recently in the cases of Cockey vs. Cole, 28 Md., 276, and Schley's Lessee vs. M. & C. C. of Balto., 29 Md., 34. In those cases, as in this, the question of the validity of certain orders and decrees of Courts of Chancery was brought before us collaterally for consideration, and the principles therein asserted as governing such cases, were stated with such distinctness, and are so applicable to the present case, that nothing more is necessary than to refer to them without again repeating the reasons or citing the authorities upon which they rest.

In all such cases the only thing to be considered is whether the Court whose proceedings are brought in question collaterally, had jurisdiction and power to pass the judgment, decree or order, under examination.

In this case the only inquiry we have to make is, as to the jurisdiction and power of the Circuit Court sitting in Equity, to pass the order of the 6th of January, 1864. If it was passed in the exercise of the lawful power and jurisdiction of the Court, any mere irregularity which may have occurred in passing it, or in the subsequent proceedings, would not invalidate the title of the purchaser.

The case presented by the bill was one clearly within the jurisdiction and cognizance of the Court. It was filed by cestuis que trust, and invoked the exercise of the powers of the Court over the trustee, and for the protection and security of the trust estate.

The whole subject...