Onderdonk v. Onderdonk

• Decision Date: 14 June 1974
• Docket Number: No. 726,726
• Citation: 320 A.2d 585,21 Md.App. 621
• Parties: William H. ONDERDONK et al. v. Alexandrina R. ONDERDONK et al.
• Court: Court of Special Appeals of Maryland

Page 621

21 Md.App. 621

320 A.2d 585

William H. ONDERDONK et al. v. Alexandrina R. ONDERDONK et al.

No. 726.

Court of Special Appeals of Maryland.

June 14, 1974.

William H. Onderdonk with whom was James O. Onderdonk, on the brief, for appellants.

H. Emslie Parks, Towson, with whom were Wright & Parks, Towson, on the brief, for appellees.

Argued before MORTON, THOMPSON and LOWE, JJ.

MORTON, Judge.

The first phase of the controversy involved in this appeal was resolved by the Court of Appeals in Onderdonk v. Onderdonk, 269 Md. 563, 307 A.2d 710. As Judge William J. McWilliams, speaking for the Court, depicted the setting, at 563-564, 307 A.2d 710: 'There are eight Onderdonks. In common they own a 6.29 acre lot at the northeast corner of Joppa Road and Bellona Avenue in Baltimore County. Around the turn of the century the lot was improved by a 20 room frame dwelling now somewhat the worse for wear, tear and neglect. Alexandrina, who is 66, wants to sell the property; Barbara 49, Anna, and Phillip have agreed; Robert, 53, and John, 65, do not object; James, 59, and William, 56, do object. The ages of Anna and Phillip are not mentioned but it is possible to infer they are between 55 and 60.'

Alexandrina Onderdonk filed a bill seeking the sale of the property in lieu of partition. After a hearng before Judge John E. Raine, Jr., in the Circuit Court for Baltimore County, at which there was testimony that the property could not be equitably partitioned, a decree was issued appointing trustees to sell the property provided that 'any private sale of said property shall not be less than $130,000." Both James and William Onderdonk, appellants here, filed an appeal and in Onderdonk v. Onderdonk, supra, the Court of Appeals affirmed Judge Raine's decree of sale. Thereafter, the trustees negotiated a sale of the property for the sum of $150,000 and duly reported the sale to the court. The appellants herein filed exceptions to the report of sale. A hearing was held on October 10, 1973, during which the appellants offered no evidence. Their exceptions were overruled, the sale was ratified and the trustees executed a deed conveying the property to the contract purchaser.

Appellants have appealed from the court's ratification and pose the single issue: 'Did the court err in overruling the exceptions to the report of sale?'

The appellee, Alexandrina Onderdonk, has filed a motion to dismiss the appeal on the ground that the issue is moot, since the sale has been ratified and a deed executed by the trustees conveying the property to a bona fide purchaser. We think the motion is well taken.

Md. Rule 1017(a) (substantially identical with Rule 817(a)) provides: 'An appellant may stay the execution of a civil judgment from which an appeal is taken * * * by filing a supersedeas bond in the form and approved in the manner prescribed by Rules 1018 * * * and 1020.' Rule 1017(b) provides: 'A supersedeas bond may be filed with the clerk of the lower court at any time before satisfaction of the judgment from which the appeal is taken, but execution shall not be stayed until the bond is filed.' It is clear from the record before us that no supersedeas bond was filed by the appellants.

Failure to file a supersedeas bond as provided by the Rules does not, per se operate to invalidate the appeal. On the other hand, it is well established that the rights of a bona fide purchaser of property through a judicial sale cannot be affected by a reversal on appeal of the order ratifying the sale in the absence of the filing of a supersedeas bond. Lowe v. Lowe,219 Md. 365, 149 A.2d 382; Sawyer v. Novak, 206 M.D. 80, 110 A.2d 517; Cook v. Boehl, 188 Md. 581, 53 A.2d 555; Middendorf v. Baltimore Refrigerating and Heating Company of Baltimore City, 117 Md. 17, 82 A. 1047. The only exception to this rule is in those cases where there is manifest unfairness in the sale or evident collusion between the purchaser and the trustee or trustees. Lowe v. Lowe, supra, 219 Md. 368-369, 149 A.2d 382; Sawyer v. Novak, supra, 206 Md. 88, 110 A.2d 517. There is no evidence in the...