Presstman v. Mason
| Decision Date | 15 December 1887 |
| Parties | PRESSTMAN ET AL. v. MASON ET AL. LYMAN ET AL. v. MASON ET AL. |
| Court | Maryland Court of Appeals |
Appeals from circuit court, Baltimore county, in equity.
John T Mason, Dwight E. Lyman, Cumberland Dugan and others, were in 1873 complainants in a proceeding for the sale and partition of land. After decree, John T. Mason and others filed a bill of review against their co-complainants and the defendants. Lyman and Dugan answered, as did also Mary H. Presstman George R. Presstman and others, purchasers under the decree who were made defendants to the bill at their own request. A decree was made setting aside the original decree. From this decree there are two appeals in one record, one by Mary H Presstman, George R. Presstman and others, the other by Dwight E. Lyman and Cumberland Dugan.
Geo. H. Williams, R. R. Boarman, and J. T. Mason, for appellants.
Bernard Carter, Wm. F. Wharton, and W. G. Smith, for appellees.
On the nineteenth of June, 1873, the appellees in these appeals, with certain other persons, filed a bill in the circuit court for Baltimore county, averring a tenancy in common with the mayor and city council of Baltimore, in an undivided fourth part of certain lands mentioned in certain exhibits filed with the bill; and averring that it would be for the interest and advantage of all the parties to have the same sold. Subp na was issued for the mayor and city council of Baltimore. The sheriff returned the writ, "Summoned;" and on the writ the city solicitor entered admission of service and subscribed it. By successive stages the case went to decree on the sixth of April, 1874. The decree was for a sale, and a trustee was appointed to make it. The sale, however, did not take place until the thirteenth of October, 1881, when the trustee did sell the property. The sale was duly reported, and the same was finally ratified in April, 1882. An auditor's report was made, and the proceeds were duly distributed between the complainants and the defendants, the mayor and city council; and the proceeds were duly paid over accordingly; and these appellees executed releases for their shares, which releases are a part of the record in this case. On the fourth of December, 1885, the appellees, who were some of the complainants, asked and obtained leave of the court to file a bill of review; and on the same day filed a bill of review against their co-complainants and the mayor and city council of Baltimore. The bill of review avers certain irregularities in the proceedings in the former case, which are alleged to have been fatal to its validity, and rendered the decree ineffective to pass good title to the land sold, and also charges a great sacrifice of the land and their interests by the sale, which they charge brought a grossly inadequate price. The irregularities insisted upon are, that in fact the mayor and city council were never "summoned," though so returned by the sheriff; and that the admission of service by the city solicitor was unauthorized, and ineffectual to do away with the need of actual and regular service; and that consequently the interlocutory decree was irregular and improvident; and that, as a consequence, all subsequent proceedings were invalid. To this bill, Lyman and Dugan, appellants, demurred; but the demurrer was overruled, and they answered. Subsequently, the appellants Mary H. Presstman and others filed a petition as purchasers under the former decree asking leave to be made defendants; which prayer was granted and they were accordingly made defendants and answered, as also did Lyman and Dugan, and the other defendants, who were originally complainants. All resisted a disturbance of the former decree, except the mayor and city council. Afterwards the appellees filed their petition alleging that the answer of some of the defendants made it necessary for them to amend their bill, and asked leave to amend the same. This leave being granted, they amended their bill by alleging a want of jurisdiction in the courts "to decree a partition of land, or a sale without having before it all the tenants in common of such land, and that in this instance the owners of one undivided fourth part only of the land of which partition was sought to be made were made parties to that suit, and that the entire proceeding is therefore null and void." They also averred that knowledge of the mistake had only recently come to their knowledge; and that they had not intended to ratify the proceeding by taking the money arising from the sale. Answers to the amended bill were filed; issue joined, and after testimony the court passed the decree setting aside the original decree, and from that decree appeal was taken.
We are all of opinion that there was error in entertaining this bill of review, and setting the original decree aside. The bill of review ought to have been dismissed. In so deciding it is not necessary for us to determine whether an undivided interest in land may be sold under such a proceeding as was had and which it is sought to review. In fact we ought to note that the question, as argued in this court, is not presented by allegation in the bill of review. The only question as to jurisdiction raised by the bill of review, by the fair reading thereof, is the failure to make certain persons parties defendants. Nor is it necessary for us to decide whether there are any irregularities or defects in the proceeding such as are claimed; for we do not think these appellees are so situated as to be entitled through bill of review to a consideration of any of those questions. Both on the ground of laches and estoppel are they disentitled to the relief they seek. "It is the universal law, that if a man, by words or conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been done without his consent, and he induces others thereby to do what they would otherwise have abstained from doing, he cannot question the legality of the act he sanctioned to the...
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