Garritee v. Popplein

• Decision Date: 16 January 1891
• Parties: GARITEE ET AL. v. POPPLEIN.
• Court: Maryland Court of Appeals

20 A. 1070

73 Md. 322

GARITEE ET AL. v. POPPLEIN.

Court of Appeals of Maryland

January 16, 1891

Appeal from circuit court, Baltimore county, in equity.

Argued before ALVEY, C.J., and MILLER, ROBINSON, IRVING, BRYAN MCSHERRY, and BRISCOE, JJ.

Charles E. Garitee, for appellants.

William H. Dawson, for appellee.

BRISCOE J.

This appeal is from an order passed by the circuit court for Baltimore county, in equity, on the 20th of December, 1889 finally ratifying a sale of real estate made by P. E. Tome and John J. Yellott, trustees under and by virtue of a decree of said court. The decree was passed on the 21st of June 1889, upon a written submission for decree signed by the plaintiff and defendant, and on the 20th of August of the same year, one day before the advertised day for the sale of the property, an appeal from the final decree was prayed. There was no appealbond, however, filed to stay the execution of the decree, so the trustees sold the property, and duly reported its sale on the 21st of August, 1889. The appellants on the 14th of September, 1889, filed certain exceptions to the ratification of the sale, (which we will consider hereafter,) and, after proof taken, they were heard on the 20th of December, and overruled by the court. The sale was then finally ratified and confirmed. The auditor's account distributing the fund was regularly made, and, after due notice, was finally ratified on the 20th of the same month. The fund was distributed by the trustees, and the releases of the parties entitled to the fund obtained and filed. It was not until the 14th of February, 1890, that this appeal which we are to consider was ordered. The transcript of the record was not made up until the 5th of June, and was not transmitted to this court until October 3, 1890. The clerk of the county court, however, files affidavits in this court, stating that these last delays are not chargeable to the appellants, the costs of the record having been paid, but were occasioned by his neglect and omissions; otherwise we should have to dismiss this appeal under the rules of this court. The motion to dismiss will be overruled. It is, however, clear from the decisions of this court that, as there was no appeal-bond filed by the appellants to stay the execution of the decree, the right acquired by the purchaser under the sale would not at all be disturbed or affected by a reversal unless it can be shown that there was unfairness or collusion in making up the sale by the trustees. Wampler v. Wolfinger, 13 Md. 337; Lenderking v. Rosenthal, 63 Md. 28. And of this there is no proof in the record, or any reasonable contention on behalf of the appellants. There were a large number of exceptions (13) filed to the ratification of the sale, but only two urged at the hearing. The first states that the amount reported as the sum for which said property was sold is grossly inadequate, and far below its value; the second, that the time of the year at which said property was sold was an...