Dorsey's Lessee v. Dorsey

• Decision Date: 17 March 1868
• Citation: 28 Md. 388
• Parties: JOHN T. B. DORSEY'S LESSEE v. JOHN W. DORSEY.
• Court: Maryland Court of Appeals

28 Md. 388

JOHN T. B. DORSEY'S LESSEE v. JOHN W. DORSEY.

Court of Appeals of Maryland

March 17, 1868

APPEAL from the Circuit Court for Howard County.

This was an action of Ejectment, brought by the appellant to recover a lot of ground situated in Ellicott's Mills Howard county. His title to the property was admitted, except in so far as it might be shown that the same had been acquired by the appellee.

1 st Exception: At the trial the defendant, to show title in himself, offered in evidence the proceedings in certain attachment cases, comprising the judgments therein rendered by justices of the peace, the writs of fieri facias issued thereon, the levy and sale by the constable, the order of ratification passed by the Circuit Court, and the deed from the constable to the said defendant. The plaintiff objected to the admissibility of these proceedings, but the Court overruled the objection and allowed them to be given in evidence to the jury; to this ruling the plaintiff excepted.

2 d Exception: The plaintiff to rebut the testimony offered on the part of the defendant, proved by the clerk of the Court, that he had examined the minutes of the Court for the March Term, 1863, as also the dockets, and there was no entry showing any motion in reference to the papers offered in evidence by the defendant, or order thereon. The plaintiff thereupon prayed the Court to instruct the jury as follows:

Firstly. That the papers offered in evidence by the defendant are insufficient to show title in him, because it does not appear, that the property therein mentioned, as levied upon by the constable, is the same property mentioned in the declaration.

Secondly. That the papers offered in evidence by the defendant, are insufficient to show title in him, because it does not appear, that any motion was made to the Court for a ratification of said sale, or any notice ordered by the Court touching the same.

Thirdly. That the papers offered in evidence by the defendant, are insufficient to show title in him.

The Court refused to grant these instructions; and to this refusal the plaintiff excepted, and the verdict and judgment being against him, he appealed.

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, contended:

1st. That the proceedings offered in evidence are of a special and limited character, and must shew on their face a full compliance with the requirements of the statute. Shivers vs. Wilson, 5 H. & J., 130; Williamson vs. Carnan, 1 G. & J., 184, 196; Owings vs. Worthington, 10 G. & J., 283; Savage Manufac. Co. vs. Owings, 3 Gill, 497; Koechlept vs. Hook's Lessee, 10 Md Rep., 173; Combs vs. Jordan, 3 Bland, 284; Code of Pub. Gen'l Laws, Art. 83 secs. 3, 4, 9, 10.

2d. That they are defective in not describing the property; in the fact that the order was not made on motion; and particularly because no notice was ordered or given. Williamson vs. Perkins, 1 H. & J., 449; Waters vs. Duvall, 6 G. & J., 76; McCabe, et al. vs. Ward, 18 Md. Rep., 505; Clark & Jackson vs. Bryan & Lunt, 16 Md. Rep., 171; Shriver's Lessee vs. Lynn, 2 Howard, 43; Penobscot R. R. Co. vs. Weeks, 52 Maine, 457, 463.

3d. That the description in the constable's deed did not relieve the objection to the want of a description of the property, but even if it did, it cannot relieve the proceedings from the other objections. See same authorities referred to on the first and second points.

4th That as the plaintiff's title is admitted, should this Court hold the proceedings offered by the defendant to be insufficient, it should render judgment at once for the plaintiff, and not send it back to be tried over again.

James Mackubin, for the appellee:

The appellee claims title under a constable's deed executed on a sale finally ratified and confirmed by the Circuit Court for Howard county, made under executions on three judgments against the appellant. Two of these judgments were of condemnation on attachments against him as a non-resident, and the property condemned is described in the officer's schedule as "one office and lot," " attached in the hands of John Dorsey. " However insufficient, therefore, the general description "one office and lot," the further designation as being "in the hands of John Dorsey," sufficiently identifies "to afford means of location," which is all that is required. And, if this were not sufficient, the defect was fully cured by the description in the order of ratification, as well as in the constable's deed. Wright, et al. vs. Orrell, 19 Md. Rep., 151; But it is objected that the Circuit Court's ratification is a nullity; because it was in the exercise of a special authority, and its proceedings do not show on their face a full compliance with the requirements of the statute, in that no motion for, or notice of ratification appear to have been made or given. A substantial compliance is all that is required. Boarman vs. Israel and Patterson, Ex'rs, 1 Gill, 380.

The requirement in this case is, that such sales "shall by the Court have been, on motion and notice as the said Court as to mode and parties shall direct, finally ratified and confirmed." That a motion substantially was made, is a necessary inference from the order of ratification itself; for it will hardly be supposed that the Court would volunteer action; the mere absence of any minute of such motion does not show that none was made. Cases of this kind are not docketed, nor are the motions made ever entered upon the minutes of the Court. As to notice, two of the judgments under which the sale was made, were against the appellant as a non-resident, and the docket entries in three other cases before the same Court, (introduced into this case by the appellant for another purpose,) evidence the Court's judgment, that he was at that very time indeed a non-resident of the State. Substantially then, the application in open Court, was as good notice as any other that could be given. Any other could only have involved more delay, and a further diminution, through costs of publication, of a fund already insufficient to pay the claims against it.

The Code commits to the discretion or direction of the Court the " motion and notice," " as to mode and parties," and that discretion must be presumed to have been exercised, and properly. And in the 13th section it declares the Court's ratification " conclusive evidence of the sufficiency and regularity of the notice," as well as of the "manner of making said sale." Code, Art. 83, secs. 12 and 13.

Courts of justice guard and maintain with zealous vigilance the titles of purchasers under judicial sales. Elliott and Wife's Lessee vs. Knott, 14 Md. Rep., 134; Warren vs. Twilley, 10 Md. Rep., 52; Tomlinson's Lessee vs. Devore, 1 Gill, 345.

And though the Circuit Court's order of ratification be a nullity for want of sufficient motion and notice, this Court would not give judgment for the appellant, inasmuch as the appellee having purchased and complied with the terms of sale, would still have a possessory right, with an inchoate title to the property in suit.

OPINION

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