Eakle v. Smith

• Decision Date: 05 December 1865
• Citation: 24 Md. 339
• Parties: JACOB EAKLE and Others v. GEORGE W. SMITH, Insolvent Trustee of Amos Eakle.
• Court: Maryland Court of Appeals

24 Md. 339

JACOB EAKLE and Others v. GEORGE W. SMITH, Insolvent Trustee of Amos Eakle.

Court of Appeals of Maryland.

December 5, 1865

Appeal from the Circuit Court for Washington County:

A decree was passed by the Circuit Court for Washington County as a Court of Equity, bearing date the 20th day of July, A D., 1860, in the case of George W. Smith, the appellee, as insolvent trustee of Amos Eakle, against the appellant, Jacob Eakle, and a certain Amos Eakle, and decreeing that the defendant, Jacob Eakle, pay or bring into this court to be paid unto the complainant, George W. Smith, as insolvent trustee of the said Amos Eakle the sum of $4,201.30, current money, with interest and costs.

From this decree the said Jacob Eakle appealed on the 14th of August, 1860, and on the 24th day of November, A. D., 1862 filed his appeal bond, which was duly approved on the day following, and before the property was sold by the Sheriff on this decree and without any order or leave of the court first had, a fieri facias was issued out of said court, on the 29th day of January, 1861, directed to the Sheriff of said county, and reciting, " Whereas, at a Circuit Court, sitting as a Court of Equity, begun and held at Hagerstown, in and for said county, on the first Monday of July, A. D., 1860, a certain George W. Smith, trustee of Amos Eakle, an insolvent debtor, by the decree of said court recovered against a certain Jacob Eakle and Amos Eakle, late of Washington County, as well the sum of $4,201.30, with interest thereon from the 20th day of July, A. D., 1860, till paid, as the sum of $545.68 2/3 for his costs and charges by him about his suit in that behalf laid out and expended, whereof the said Jacob and Amos are convict, as appears of record. Therefore you are hereby commanded, that of the goods and chattels, lands and tenements of the said Jacob Eakle and Amos Eakle, being in your bailiwick, you cause to be made," etc. This execution was stayed by injunction granted upon a bill filed by Christian Eakle, to whom the said Jacob Eakle had conveyed the lands taken in execution by his deed dated the 3rd day of August, A. D., 1860. The defendant in said bill, George W. Smith, answered the same, and upon a hearing upon bill and answer, the said injunction was dissolved.

The Sheriff then proceeded to sell said property, and advertised the same, and in such advertisement stated that " by virtue of a writ of fieri facias issued out of the Circuit Court for Washington County, as a Court of Equity, at the suit of George W. Smith, trustee of Amos Eakle, and to him directed against the goods and chattels, lands and tenements of Jacob Eakle and Amos Eakle, I have seized and taken in execution all the estate, right, title, interest, trust, property, claim and demand at law and in equity of the said Jacob Eakle and Amos Eakle, in and to the following real estate, (here describing the said farms.) And I hereby give notice that on Tuesday, the 25th day of November, 1862, in front of the Court House in Hagerstown, I will proceed to sell the interest at law and in equity of the said Jacob Eakle, in and to the above described tracts of land at public sale to the highest bidder for cash." On said day, as advertised, he sold at public sale the tracts aforesaid, and the Sheriff so made return of his proceedings.

Upon the return of said execution the said Jacob Eakle, the defendant in the decree, came into court and in two several motions moved the court to quash said execution and set aside said sales, and at the same time the said Caleb Eakle and William Hammond, as devisees of Christian Eakle, deceased, came also into court and made the like motions, and thereupon the said George W. Smith, by his petition, prayed the court that his said execution be amended by striking out the name of Amos Eakle, upon the ground that the same was a clerical error or misprision of the clerk.

The plaintiff and the purchasers at the Sheriff's sale made answer to these motions, and affidavits were taken and filed by the respective parties, and the cause was heard and the court, (Frederick Nelson being special Judge,) passed an order allowing the amendment of the execution, and overruling the several motions to quash the execution and set aside the sales thereunder, from which said order the appellant, Jacob Eakle, and the appellants, Caleb Eakle and William Hammond, severally appealed.

In the motion made by said Jacob Eakle to set aside said sale, he assigned for cause:

1st. That prior to said sale he sued out an appeal from said supposed decree, to the Court of Appeals of Maryland, and also, had prior to said sales filed an appeal bond, approved by the clerk of the Circuit Court for Washington County, which said bond operated in law as a supersedeas or stay of proceedings upon said supposed decree and said fieri facias.

2nd. That due and legal notice of the time and place of sale was not given by said Sheriff.

3rd. That no decree, such as is recited in said fieri facias, was ever passed by the Circuit Court for Washington County, sitting as a Court of Equity.

4th. That said fieri facias was issued against wrong parties, because there is one decree of said court for said sum of money against the defendants named in said execution.

5th. That no schedule or list of the property taken under said fieri facias, with the value set upon it by proper appraisers, was made by said Sheriff and returned with said execution.

6th. That said lands were sold at a grossly inadequate price.

In the motion of the said Jacob Eakle to quash said execution he assigned for cause:

1st. There is no such decree of the Circuit Court for Washington County, as that recited in the writ of execution.

2nd. The said writ of fieri facias was issued at the instance of the said George W. Smith, trustee, without first having obtained the order of this court authorizing it, and was issued without authority--was premature and contrary to law.

The said Caleb Eakle and William Hammond, as devisees of Christian Eakle, deceased, came into court at the same time, and filed their motion to set aside said sales, and assigned the same causes as the said Jacob Eakle, as aforesaid, and also filed their motion to quash, and assigned the same causes assigned by the said Jacob Eakle, with the additional third cause, that the decree, under which the said fieri facias was alleged to have been issued, was not passed by said court until after the execution and recording of said deed from said Jacob to Christian Eakle; and although it bears date anterior to said deed, the said Christian Eakle gave no consent to its being ante-dated, and that the same was done by said court in derogation and violation of his rights, and that as to him, and those claiming under him, the said decree was illegal. The said Caleb Eakle and William Hammond claim a right to come into court and make their motions, upon the ground that the said decree, whilst bearing date as of the 20th day of July, A. D., 1860, was not, in fact, passed by the court until a considerable time thereafter, and on or about the 14th day of August, 1860. That on the 3rd day of August, and before the passing of said decree, the said Jacob Eakle sold and conveyed by his deed of that date, duly executed and recorded, said real estate to said Christian Eakle; and that afterwards, and on the 4th day of April, 1861, the said Christian, by his last will and testament, devised one of said farms to said Caleb, and a certain sum of money, to be derived from the sale of the other of said farms, to said William Hammond, by reason of which they are affected by said sales, and have a right to be heard in these proceedings.

The cause was argued before BOWIE, C. J., and BARTOL, GOLDSBOROUGH, and COCHRAN, JJ. Wm. T. Hamilton and O. Miller, for the appellants.

Under such motions " it is the necessary practice to examine into all the facts by parol or other proof, and not regard technical estoppels." Moreland v. Bowling, 3 Gill 501. Marshall v. Greenfield, 8 G. & J. 349. Miles v. Knott, 12 G. & J. 442. Manahan v. Scammon, 3 Md. 471. Trail v. Snouffer, 6 Md. 309. Jackson v. Robins, 16 John. 573.

Then as to the first cause assigned by the appellant, Jacob Eakle, for setting aside said sales, viz: That prior to these said sales he had sued out his appeal bond, which was duly approved by the clerk. The appeal in the cause was taken in time, being taken on the same day or the day after the decree was in fact passed.

The Act of 1826, chap. 200, provided that no execution should be stayed or delayed, unless the person appealing should immediately on praying such appeal enter bond, & c.; the same provision is in the Code, page 25. The practice has been not to file it immediately. The bond is designed to stay execution, and in such stay at the same time protect the rights of the party having the judgment or decree, and secure him against loss or injury. But we contend that by the Act of 1840, chap. 232, it is provided simply, that in all cases of appeal from the judgment or decree of any court of this State, wherein an appeal is by law allowed, the filing of an appeal bond, approved as the law prescribed, shall stay any motion which may or has been, or shall be issued on any such judgment or decree, whether such execution may have been in part executed or not, & c. Where, then an appeal is taken in time, as in this case, this Act allows the bond to be filed where the execution has in part been executed, and without limit as to time, so that the execution is not fully executed. And this appears to be right in principle, for whilst the party for whose benefit the bond is given is altogether protected, and so the party giving the bond if the cause should be ultimately decided for...