Dorsey v. Thompson

• Decision Date: 05 December 1872
• Parties: JOHN T. B. DORSEY v. MARY A. T. THOMPSON and Others.
• Court: Maryland Court of Appeals

37 Md. 25

JOHN T. B. DORSEY v. MARY A. T. THOMPSON and Others.

Court of Appeals of Maryland

December 5, 1872

Appeal from the Circuit Court for Howard County, in Equity.

This was an appeal from the following orders of the court below The order of the 6th of January, 1864, decreeing the sale of the real estate mentioned in the complainant's bill, as the residue of the real estate remaining unsold, of the late Thomas B. Dorsey, and appointing James Mackubbin trustee to make the sale; the order of the same date, removing John T B. Dorsey, as trustee of Mrs. Mary A. T. Thompson, and appointing Priscilla M. Dorsey in his stead; the order of the 16th of August, 1864, ratifying the sales reported by James Mackubbin, as made on the 18th of May and the 1st and 2nd of June, 1864; the order of the 20th of December, 1864 ratifying the auditor's report and account; the order of the 4th of December, 1866, ratifying the report and account of the auditor; the order of the 15th of November, 1864 ratifying the sale to James S. Gary; the order of the 7th of April, 1871, suspending the further execution of the order of sale of the 6th of January, 1864, until further direction, and ordering a subpoena to issue to the appellant, commanding him to appear and answer the bill by a day named; and the order of the 21st of September, 1871, continuing James Mackubbin, the trustee appointed by the first order of sale, and directing him to sell the remainder of the real estate ordered to be sold, "as if his power and authority in the premises had not been suspended by the order of the 7th of April, 1871." The facts of the case will sufficiently appear from the opinion of the court and the arguments of counsel.

The cause was argued before BARTOL, C.J., STEWART, BOWIE, BRENT, ALVEY and ROBINSON, JJ.

Levin Gale and Louis T. Wigfall, for the appellant.

On the same day that the bill in this case was filed, an order was passed by the clerk directing publication against John T. B Dorsey, Samuel W. Dorsey and against Dorsey Thompson, Gilbert L. Thompson, Jr., and Edward L. Thompson, (children of the complainant, Mary A. T. Thompson,) all of whom the bill alleged to be non-residents--warning them to appear in person or by solicitor on or before the 1st of May next ensuing, (i. e., on 1st May, 1864,) to show cause, etc. And at the same time a subp na was issued for the other defendants, numbers of whom were infants, returnable on the 21st of March, 1864. On the 4th of January, 1864, John T. W. Dorsey, (not John T. B.) and also Comfort W. Dorsey, separately appeared and answered for themselves respectively. On the 6th of January, 1864, none of the other defendants having appeared or answered, and neither the time for the return of the subp na, nor the time for the appearance of the absent defendants having expired, the court without any evidence other than the will and administration accounts, passed an order directing the sale of the whole of the residue of the real estate of the late Thomas B. Dorsey, in which was included one-fifth belonging absolutely to John in his own right, and without any allegation in the bill, that it was incapable of advantageous partition. In point of fact it was susceptible of division with great advantage. None of the defendants, except the two above named, appeared according to the exigency of the subp na or order of publication. No interlocutory decree was obtained against them, nor decree pro confesso had.

In May and June, 1864, various sales of different tracts of land were made, which were reported to the court and ratified. In June and September, two sales, amounting in the aggregate to $13,845.75, were made by the trustee privately, and reported to the court and ratified without an order nisi, upon the consent of J. T. W. Dorsey, and Comfort W. Dorsey, none of the other defendants having appeared or answered, (except the infants,) or consented to the sale or ratification.

On the 15th of September, 1864, after these various sales had been made, a commission to take testimony was issued and returned a few days afterward. The only important evidence offered was to show the heirship of the parties--the accounts passed before the Orphans' Court in relation to the estate of Thomas Beale Dorsey, and the fact that John T. B. Dorsey, (the present appellant,) was in Richmond, Virginia. One of these Orphans' Court accounts was passed by Comfort W. Dorsey, widow and executrix of William H. G. Dorsey, in which it is alleged that she passes it on behalf of herself as executrix of William and John T. B. Dorsey, he "being in the State of Virginia, and, as it is believed, in the Confederate service."

Without any further order or proceedings, and still without the appearance of the other defendants, and without any decree, either interlocutory or pro confesso, the auditor apparently of his own motion, states an account, distributing the proceeds of the various sales--in which he makes allowances against John T. B. Dorsey, not in any matter growing out of the common interest of the parties to this proceeding, but out of some alleged attachments in other causes, none of which are shown to be connected with this cause. This report was made on the 2nd of December, 1864, and ratified by the court on the 20th of the same month, without any order nisi, although by the rules of the court it was required to lay at least one term.

Afterwards, on the 17th of January, 1865, a further sale was made privately, amounting to $2,157.50, and on the following day ratified by consent of the two defendants before named, no order nisi having been obtained; and the proceeds were distributed as before, by the auditor, without further order or decree, and ratified without any preliminary notice or order.

In June, 1868, James Mackubin, who claimed to be trustee under the order of sale heretofore mentioned, filed a petition, which alleged, that he had been resisted and obstructed in his efforts to sell through the interpositions of John T. B. Dorsey, who when the proceedings in this cause were instituted, "resided within the limits of the so-called Confederate States;" that said Dorsey returned to this State some time in the summer of 1865, and since his return, had instituted actions of ejectment against each and every one of the parties, (except his sister Eliza,) who purchased of the petitioner, and had also instituted a like action of ejectment against the petitioner, for the recovery of the only parcel of land remaining unsold. The petition invoked the protection of the court, and prayed that said Dorsey might be enjoined from the further prosecution of his action against the petitioner, and from all manner of interference with him in the discharge of the trust devolved upon him.

A copy of this petition, and an order to answer it having been served on John T. B. Dorsey, he, in obedience to the exigency of said order, filed an answer to the petition, denying that he was a party to the cause or bound thereby--and setting up other reasons why the order prayed for should not be passed. The petitioner abandoned the proceeding, and nothing whatever was done under it.

On the 17th of March, 1871, the same alleged trustee, James Mackubin, filed a further petition asking the court what he should do. To this petition and to the last preceding one, there were no parties, except the alleged trustee and the defendant, John T. B. Dorsey. Upon this petition, without the application of a single party to the cause, the Circuit Court, on the 7th of April, 1871, passed an order reciting that the case had been finally decreed upon, except as to the property remaining unsold, and that as to that, (although John T. B. Dorsey, had denied that he was a party, and pleaded substantially to the jurisdiction in the cause, and that question had never been submitted to or decided by the court,) he should be summoned to appear to the original bill and answer. He did not do so. Without any interlocutory decree or decree pro confesso, the decree from which this appeal is taken was passed.

The proceedings in the cause were so irregular and defective, that they were entirely out of the jurisdiction of the court which undertook to act upon them. But whether that be so or not, upon this appeal the court must reverse the proceedings since this case comes up on appeal from the last decree or order passed; and opens up, not only the question of jurisdiction, but also the regularity of the proceedings. Code, Art. 5, sec. 22.

The bill in this case was not a proceeding strictly in rem. It did not describe any particular property; and there was no levy, schedule, appraisement or return of it. It only attacked the land through the parties. If the absent defendants had not been made parties no decree could have bound their interests.--Code, Art. 16, secs. 88, 98. The section 129 of same article, authorizing a sale before final decree, must be taken as subject to and qualified by secs. 88, 98--they being in pari materia. Hollingsworth v. Barbour, 4 Pet. 466; Harris v. Hardeman, 14 How. 343; Clark v. Bryan, 16 Md. 178; Woodruff v. Taylor, 20 Vt. 66-72; McKim v. Mason, 3 Md. Ch. 212.

There were no interlocutory decrees. Art. 16, sec. 115. Nor decrees pro confesso. Art. 16, secs. 116, 120; nor attachment for contempt. Art. 16, sec. 118.

There were no final decrees within the meaning of the Code, Art. 16, sec. 129. The ratifications of sales are irregular, as also the auditor's reports, and do not amount to final decrees.

At the time of the institution of this suit, and up to the conclusion of the late civil war, John T. B. Dorsey and other of the defendants, as appears by the proceedings in the case were alien enemies, and could not be sued, nor could any notice of publication be given to...