Herbert v. Rowles

• Decision Date: 10 March 1869
• Parties: JAMES R. HERBERT v. THOMAS ROWLES.
• Court: Maryland Court of Appeals

30 Md. 271

JAMES R. HERBERT v. THOMAS ROWLES.

Court of Appeals of Maryland

March 10, 1869

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

The bill in this case was filed on the 3d day of February, 1863 by the appellee. It set forth that Rowles contracted to buy a tract of land from Herbert, at $51.75 per acre, on the 4th of April, 1856; that the tract was believed and represented to contain 244 1/2 acres; and that on that assumption the price was calculated at $12,652.88; that Rowles received a deed from Herbert, on the 3d day of October, 1856, having then paid all the purchase money except $2,826, for which latter amount he gave a mortgage of even date with the deed, to secure the payment of said sum with interest semi-annually. The bill charged that since the date of the deed, Rowles had paid on account of the mortgage debt, $1,350, on the 17th April, 1857; $800, on the 15th February, 1860, and $500 on the 5th May, 1861, leaving a balance still due to Herbert; " that by a survey of the farm made since October 3d, 1856, the complainant had ascertained that there was a deficiency of nineteen acres in the quantity sold; and that Herbert left the State in 1861 and, at the present time resided in Virginia, or elsewhere out of the jurisdiction of the Court.

The bill then prayed for an account of the mortgage debt, to ascertain the amount then due upon it, and that in stating the account allowance might be made for the deficiency, and that on payment by the complainant of the balance found due Herbert should be decreed to release the mortgage, and for further and other relief.

An order of publication against Herbert as a non-resident was also prayed, and was passed on the same day. In the notice of the substance and object of the bill published under the order, the complainant stated that the object of his bill was to precure a release of the mortgage upon payment by him of the balance that might be found due thereon, after allowing for the deficiency.

The order was published, warning Herbert to appear on or before June 10th, 1863. On the 11th of September, an interlocutory decree was passed, and a commission ordered to be issued to the regular commissioner of the Court to take testimony. The evidence taken under this commission is sufficiently stated in the opinion of the Court.

After the return of the commission, which was the 30th July, 1864 nothing was done until the 9th day of June, 1865, when Samuel Snowden appeared as solicitor for James R. Herbert, and filed a paper in the following words:

"Rowles )

vs. ) In the Circuit Court for Howard Co. in Equity.

Herbert. )

It is admitted that the amount of indebtedness in this cause, is eight hundred and eighty-six dollars and forty-eight cents, said amount including interest to the 6th June, 1865."

On the 5th day of July, 1865, the Court passed a decree, based upon the foregoing proceedings, directing Herbert to execute a release of the mortgage, and to pay Rowles $886.48/100, with interest from June 5th, 1865, until paid.

On the 26th of April, the defendant, Herbert, filed a petition for leave to answer the bill, based on facts and reasons set forth in the petition. And the Court thereupon passed an order permitting him to answer, unless cause to the contrary was shown on or before the 22d of May. Before the matter of the petition was heard, the defendant filed an amended petition, upon which the Court passed an order dated June 13th, 1866, directing that the decree passed on the 5th of July, 1865, "be vacated and annulled, and that no execution shall issue thereon, and that the defendant have leave to file his answer to the original bill in said cause unless cause to the contrary be shown on or before Monday, the 2d day of July, 1866," &c.

The petition and amended petition to which the complainant filed answers, came on to be heard together, and on the 15th of June, 1867, the Court passed an order dismissing the petitions with costs; and on the 13th of July, 1867, the defendant took this appeal from said order and from the original decree; accompanying his order for the appeal, with an affidavit, which stated (among other things,) that the "said decree was obtained through the mistake of the complainant, as set forth in the petition and amended petition filed in this case."

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

William A. Fisher and Charles Marshall, for the appellant:

The appeal from the decree in the original cause was taken more than nine months after the date of the decree, but not after it was actually filed. The affidavit that the decree was obtained by mistake is, however, conclusive on the right of Herbert, to appeal. Oliver vs. Palmer and Hamilton, 11 G. & J., 141; Code, Art. 5, sec. 20.

The affidavit referred to the petition and amended petition to show what the mistake was. Though it was unnecessary to do this, it is important to observe that the papers referred to, fix the time when the mistake was discoverd by the appellant. It appears that the appellant was under legal disabilities until the 25th July, 1865; that he did not employ Snowden, and that it was not until the affidavit of Mr. Donaldson was filed on the 22d May, 1866, with Rowles' answer to the first petition, that Herbert knew that the mistaken use had been made of Snowden's admission. This mistake is indicated but not charged in the first petition, but is distinctly charged and insisted upon in the second, and Mr. Donaldson's affidavit is referred to therein as evidence of the mistake. The appeal was therefore taken within nine months from the time when the appellant became aware of the mistake, and is in good time.

The proceedings show that the decree itself had disappeared from the papers until May, 1866, so that the appellant could not have known its purport before that time. If, then, the appeal be in time, it is submitted that the error in the decree, which must be tried on the face of the record, without reference to the explanatory affidavits on either side, is apparent. The decree must be supported either as a decree against a non-resident, or as a decree by consent. Regarding it as a proceeding against a non-resident, it is erroneous for the following reasons:

1st. There is no proof in the case that Herbert was a non-resident. This fact is essential to the jurisdiction of the Court, and should have been proved. Boyd vs. Boyd, 6 G. & J., 29; Bennett vs. Bennett, 5 Gill, 467, n. The material allegation being that Herbert had gone to and was residing in Virginia, he must be regarded as an alien enemy, so that the bill was demurrable, and the Court without jurisdiction of the subject. Act of Congress of July 13, 1861; Act of Congress of July 17, 1862; Tomlinson vs. M'Kaig, 5 Gill, 274; Hanger vs. Abbott, 6 Wallace, 532; Conn. Ins. Co. vs. Hall, American Law Reg., for August, 1868.

2d. There was no affidavit of the fact of non-residence as required by the 26th rule of Court. Oliver vs. Palmer, 11 G. & J., 440.

3d. The appearance of Snowden, conceding that he had authority to appear, did not change the character of the proceedings. It was still a proceeding against a non-resident. It appears by the record, that Snowden did not appear until June 9th, 1865, nearly a year after the commission to take testimony had been returned. The appearance could not affect the validity of the previous proceedings. Code, Art. 16, sec. 117.

The decree passed was not one that could be passed upon a prayer for general relief. It was inconsistent both with the case made by the bill and the relief specifically prayed, and was calculated to take the defendant, or those acting for him, by surprise. The order of publication does not notify the defendant that the complainant sought to recover money from him, but to pay money to him. This is not an objection to the sufficiency of the averments of the bill; but admitting the sufficiency, the decree is not in conformity to any case made by those averments. 1 Daniell's Ch. Practice, 351, 384, 435, 441, note a; Chalmers vs. Chambers, 6 H. & J., 29; Tomlinson vs. McKaig, 5 Gill, 276.

The decree cannot be supported as a decree by consent.

The decree professes to rest on the bill, answer and testimony, and other proceedings. It is not a decree by consent in form, nor is the admission broad enough to support it. Williams vs. Williams, 7 Gill, 305.

Snowden's admission must be read in connection with the bill and other proceedings. The bill alleges that there is an indebtedness from Rowles to Herbert, and offers to pay it when ascertained. It does not pretend that Herbert owes Rowles anything. The proof before the Court does not show that Rowles has paid any part of the debt. Nor does the proof show any deficiency in the quantity of land, but only that there was a disputed title to a part. The amount mentioned in the admission is about the amount remaining due on the mortgage without any abatement for the deficiency, and is $235.16 more than the amount claimed by Rowles.

In view of these facts, the admission cannot be understood as meaning a debt from Herbert to Rowles, without proof that it was so intended; and there is no such proof in the record in this appeal.

Thomas Donaldson and Wm. M. Merrick, for the appellee:

The petition and amended petition were rightly dismissed.

The decree was enrolled, having been signed by the Judge and filed by the clerk, and three terms had passed before either of the petitions was filed. Dorsey vs. Clark, 4 H. & J., 553; Lovejoy vs. Irelan, 19 Md., 56; Pfeltz vs. Pfeltz, 1 Md. Ch. Dec., 455; Ducker vs. Belt, 3 Md. Ch. Dec., 13; Stewart vs. Beard, 3 Md. Ch. Dec., 227.

The appeal from the decree itself of July 5th, 1865, should be...