Mealey v. Page

• Decision Date: 03 December 1874
• Citation: 41 Md. 172
• Parties: ISAIAH MEALEY v. WALKER Y. PAGE, Executor of WILLIAM TYLER, deceased.
• Court: Maryland Court of Appeals

41 Md. 172

ISAIAH MEALEY v. WALKER Y. PAGE, Executor of WILLIAM TYLER, deceased.

Court of Appeals of Maryland

December 3, 1874

APPEAL from the Orphans' Court of Frederick County.

The appellee, as executor of the last will and testament of Dr William Tyler, deceased, in pursuance of the power contained in the will, and by virtue of an order of the Orphans' Court of Frederick county, offered at public sale certain real estate of the decedent. The appellant, was the highest bidder for a tract called "Long Acre," containing seventy-five acres, and the same was knocked down to him at the price of $121.50 per acre; the whole purchase money amounting to $9,112.50. The terms of sale were "one-third cash, the residue in two equal annual payments, bearing interest from the day of sale, the purchaser to give bond with approved security for deferred payments." The appellant signed immediately after said sale, an acknowledgment of purchase, in which he promised "to comply with the terms of sale, upon ratification of sale by the Orphans' Court of Frederick county." He was reported by the executor as the purchaser, and on the 13th day of October 1873, the sale was finally ratified by the Court. On the following day a petition was filed by the executor, under oath, alleging that the appellant had failed to comply with the terms of sale, and praying for an order requiring him to comply by some certain day. Upon this petition an order was passed by the Court, requiring the appellant to comply with the terms of sale, or shew cause to the contrary on the 21st day of October, 1873. This order was duly served upon the appellant. He failed to comply with the terms of sale, or to shew cause to the contrary, and the Court, on the 23rd of October, 1873, passed an order directing the executor to re-sell said real estate on the terms originally prescribed, or for all cash, at the option of the purchaser. And further ordered, that the same be re-sold at the risk of the appellant. On the 3rd of November 1873, the appellant and a certain Joseph A. Fleming filed a petition, alleging the former's inability to comply with the terms of sale, and that an order of resale had been passed, and praying the Court to rescind the order of re-sale, and to substitute Fleming as purchaser; the petition alleged Fleming's ability to comply, and the appellant's tendered payment of all the costs and expenses which he had incurred, or for which he was legally liable by reason of his default. On the 8th of November, the executor filed an answer to the petition, alleging under oath the appellant's failure to comply with the terms of sale in every respect, although compliance had been demanded of him, his failure and utter inability to make the cash payments, or to give good bond for the deferred payments, and that he had no means to make the cash payment--and denying the right of the appellant, who was then in contempt for non-compliance with an order of the Court, to transfer his purchase, and substitute a purchaser after the ratification of the sale and an order of re-sale. Upon the hearing of the petition and answer, on the 11th of November the Court dismissed the petition.

The farm was re-sold, as directed by the order of the Court, and Joseph A. Fleming became the purchaser at $140.35 per acre the purchase money amounting to $10,526.25 in the aggregate. The sale was duly reported to, and ratified by the Court. The excess of the second sale over and above the first, was $1,413.75.

On the 20th of December, 1873, the appellant filed a petition setting forth the first sale and the proceedings thereon, the order for a re-sale and the proceedings preliminary thereto the petition of the appellant and Fleming, and the proceedings thereon; the second sale and the amount thereof; alleging that the appellant bought the property for the benefit and on account of two of his daughters, who, as it was understood between them and the petitioner, were to furnish the money and security; that they owned considerable property; that a large portion of the funds necessary for the cash payment had been promised to the appellant, on security to be given by his daughters; that the parties from whom said funds were to have been obtained, informed the petitioner that they were prevented from furnishing said funds by the temporary stringency in monetary affairs; and that the same stringency prevented the petitioner from raising the money to comply with the terms of sale. The petition prayed the Court to pass an order declaring the $1413.75, the difference between the first and second sale, to be the property of the petitioner, and to direct the executor to pay over the same, after deducting all expenses, costs and charges for which the petitioner was liable by reason of his default, and for general relief.

To this petition the executor, on the 1st of January, 1874, filed his answer under oath, admitting the sale to the appellant and the ratification thereof; but alleging that he did not know whether or not the appellant purchased on account of his two daughters, or whether or not they had agreed to furnish him the purchase money, and requiring full proof thereof; and further alleging, that the appellant signed the acknowledgment of purchase in his own name, and knowingly permitted the sale to be ratified, he being reported as the purchaser; after the order of re-sale, he filed a petition in his own name, under oath, in connection with J. A. Fleming, in which he declared himself the purchaser, and never intimated that his daughters had any interest in the purchase, until the filing of the petition claiming the $1413.75. The answer insisted that all the allegations of the petition in regard to the appellant's daughters, were irrelevant, even if true. The answer further alleged, that the respondent knew nothing as to the worth of the daughters, the efforts of the appellant to borrow money, and the causes of his failure to obtain the same, and required full proof thereof, and insisted that the allegations in this respect, whether true or false, were irrelevant. It further alleged the order of re-sale, and the failure of the appellant to shew cause why such order of re-sale should not be passed, and his failure even to appear or resist such order; denied that the appellant tendered to him any part of the cash payment, or of the cost or expenses, alleged that he refused to treat Fleming as a substituted purchaser, because he had been trifled with in every possible way by the appellant, and because after final ratification of the sale, and the passage of an order of re-sale in addition, he had no right to treat with any person as a substituted purchaser. The respondent claimed all the proceeds of the second sale, and insisted that the real estate was re-sold simply at the risk of the appellant, and not as his property, and that the order of re-sale destroyed any inchoate title which he might have acquired by the first sale and the ratification thereof. The answer further alleged that the petitioner was utterly insolvent, and notoriously so, but not so known to be by the respondent at the time of the first sale; that the appellee called upon the appellant time after time, and almost day after day, requesting him to comply with the terms of sale, but that the appellant was utterly unable either to pay the cash payment, or to give notes with surety, for the deferred payments; that the appellant bought merely for speculation, and wanted to retain only one-fifth of the farm, and had no reasonable expectation of paying except by selling the property; and that he disclosed no agency so long as any risk attached. The respondent insisted that even if he were not entitled to all the proceeds of the second sale, the petition should be dismissed, as the excess over and above the costs, charges and commissions, would belong to the daughters and not to the appellant.

To this answer the appellant filed a general replication. Testimony was taken, and the Court, on the 28th of April, 1874, passed an order dismissing the petition. From this order the present appeal was taken.

The cause was argued before BARTOL, C.J., BRENT and ALVEY, J., and BOWIE and MILLER, J., participated in the decision.

George K. Shellman, for the appellant.

From the testimony, it is clear that Mealey purchased in perfect good faith, and had his daughters' property upon which to raise the first payment, and that they were ready and willing to give bonds with good security; he is therefore a bona fide purchaser and entitled to be treated as such, notwithstanding that from circumstances beyond his control, he could not receive the money in time.

The land was regularly sold to the appellant at public sale, and the appellee waived his right to demand the first payment in cash, and gave the appellant time until the ratification. It was ratified and afterwards re-sold to pay the purchase money. This is merely a summary mode given by the Act of Assembly, of collecting the purchase money.

Mealey was bound to make good the price he had bid on the property, and when that was done, the executor had got all he was entitled to except the additional expenses consequent upon the re-sale.

All the decisions speak of the re-sale as being the enforcement of the lien for the payment of the purchase money. Gordon vs. Matthews, 30 Md., 244; Andrews vs. Scotton, 2 Bland, 656, 657, 663, 664, 669, 670, 672; Simmons vs. Tongue, 3 Bland, 341, 348; Stephens and Crain vs. Magruder, 31 Md., 168.

There does not appear to be any case in which more was claimed than the full payment of the purchase money at the first sale, and the additional expenses of the re-sale.

The power given to the Orphans' Court to order a re-sale, is the same as that given to Courts of...