Ridgely v. Bond

• Decision Date: 26 June 1862
• Parties: JOHN RIDGELY, of JOHN, v. JOSHUA B. BOND, and REBECCA J. BOND, his wife.
• Court: Maryland Court of Appeals

18 Md. 433

JOHN RIDGELY, of JOHN, v. JOSHUA B. BOND, and REBECCA J. BOND, his wife.

Court of Appeals of Maryland.

June 26, 1862

A decree for a sale of land, and directing the proceeds to be brought into court for distribution, does not fix the rights of the parties, but where parties have executed a deed, containing admissions as to the state of the title, and these admissions are confirmed by their answers, such parties, and all claiming under them, are estopped thereby.

A devise, by implication, is sometimes allowed, but the implication must be plain, and not merely a possible or probable one: no words in a will ought to be construed so as to defeat the title of the heirs at law, if they can have any other signification.

A testatrix devised all her lands to her daughter, Elizabeth during her single life, but if she marries, then the land is to be equally divided between her and her sister, and their heirs: but if her sister Sarah should die without issue, then the land shall be the right and estate of Elizabeth and her heirs, but if Elizabeth should die without issue, then the land shall be equally divided between my two sons and their heirs. HELD:

1st. That the first section of this clause invested Elizabeth with a life estate in all the lands, subject to be divested of one-half in the event of her marriage, which moiety would then vest in Sarah, and if she died without issue, would revert to Elizabeth.

2nd. The subsequent sections, by implication, give Elizabeth a fee-tail in the whole, and the devise over in favor of the sons, being, after an indefinite failure of issue, is void.

3rd. The effect of this construction is, under our Acts of Assembly, that upon the death of Elizabeth, intestate, and never having been married, the fee descended to her heirs at law.

A defendant to the original bill is entitled to revive the decree which had abated by the death and marriage of some of the parties, in order that he may be allowed his costs and charges, a defendant; or his representative, may revive a suit in every case where he may derive a benefit from further proceedings.

Where the decree, sought to be revived, directs land to be sold for distribution among the parties entitled, not as heirs only but as incumbrancers also, (some of the parties claiming large liens,) these incumbrances are personal assets, and the personal representatives of such parties must be made parties to the bill of revivor.

The character of a bill is determined rather by the allegations and relief prayed, than the title it assumes: a bill called a bill of revivor, will be treated as an original bill in the nature of a bill of revivor, if it contains the proper allegations.

The chancery or equity pleadings of this State are not held to a rigid compliance with the rules of English practice, or the technicalities that control proceedings at law.

Where under the original decree, one of the parties would have been held to account for rents and profits, if he had continued to occupy and enjoy the land, it is not new matter of litigation, for the bill of revivor to require a similar account of one deriving title from, and claiming under, such party, and who held and occupied the land.

Where to a bill for an account of rents and profits the defendant pleads limitations, and claims allowance for improvements, such allowances must be deducted from the amount of the rents and profits for the whole period the land was lawfully in the possession and occupancy of the defendant.

APPEAL from the Equity side of the Circuit Court for Howard County.

This appeal is from a decree passed September 10th, 1858, for a sale of land and an account of rents, and profits and improvements, on a bill filed by the appellees against the appellant. The facts of the case are fully stated in the opinion of this court. The court below, (BREWER, J.,) on passing the decree, delivered the following opinion:--

" The bill professes to be a bill of revivor, when, as the defendant contends, it should have been an original bill in the nature of a bill of revivor. A decree passes for a sale of the land, but before it was sold, the complainant died, and also the defendant. The defendant's interest in the property passed through several hands by devise or descent, and was finally purchased by the present defendant. The object of the present bill is not only to revive the present decree, but claims rents and profits from the defendant. The proper proceeding is, therefore, by original bill in the nature of a bill of revivor. This bill although called a bill of revivor, contains all the necessary allegations of an original bill, which would be required to accomplish the object sought, and the prayer also seems to be sufficient. I do not see any necessity for delaying the case, that the complainants might amend, which is what the court would direct, and am ready therefore to pass a decree on the present bill.

The complainants' title to relief was established by the former decree, and the present defendant claiming directly from and through the defendants in that case, is bound by the decree.

The defendant claims, in his answer, to be allowed for improvements and repairs, and pleads limitations as to the rents and profits. I think he ought to be allowed for improvements, repairs, & c., but only out of the whole rents and profits. Limitations would apply in this case to all the rents accrued prior to three years before the filing of the bill, but I do not think there would be any equity in allowing the defendant for improvements, out of that portion of the profits which have accrued within that period. It is not an equitable plea. The court, however, cannot reject it, but it can refuse the allowance for improvements to that extent. A decree may be prepared, in conformity with these views, for a sale of the land, and an account of the rents and profits and improvements."

From the decree, the purport of which is stated in the opinion of this court, the defendant appealed.

The cause was argued, originally, before TUCK, BARTOL and GOLDSBOROUGH, J., and on a re-argument ordered by the court, was again argued before BOWIE, C. J., BARTOL, and COCHRAN, J.

Thomas Donaldson for the appellant.

1st. The appellants were not entitled to a revivor of the decree as heirs of Henry Howard, because under the devise in Achsah Howard's will, the land affected by the decree, after the death of Elizabeth Howard, became the property of Sarah Elder alone, subject, perhaps, to the debt due to Henry Howard for moneys advanced for the support of Elizabeth, to secure the payment of which it was conveyed by the deed of 1814; if any one could revive it, it could only be the personal representative of Henry Howard. This point depends upon the construction of this provision of the will of Achsah Howard: " I give and bequeath unto my daughter, Elizabeth, all my land during her single life, but if she marries, it is my desire that the land shall be equally divided between her and her sister, their heirs and assigns, but if her sister, Sarah Elder, should die without issue, it is then my desire that the land shall be the right and estate of Elizabeth, her heirs and assigns, but if Elizabeth should die without issue, it is then my will and desire, that my land shall be equally divided between my sons Brutus and Ephraim, their heirs and assigns." It was evidently the intention of the testatrix, that the daughters and their issue should be preferred to the sons, and a fee, by necessary implication, is raised in favor of Sarah Elder, to the exclusion of the sons, Brutus and Ephraim. This construction seems to be the only one that will gratify the intention, and it becomes more apparent by careful consideration, and by long study of the will, and brooding over the language used. It is submitted, also, that such a construction is fully sustained by the authority of 1 Jarman on Wills, 488 to 498, and cases there cited.

2nd. Even if the complainants have any interest in the land as heirs of Henry Howard, they could not revive the decree without joining with them, as a co-plaintiff, the administratrix of Henry Howard, or making her a defendant on her refusing to join in the bill. If there was no such administrator living, then letters d. b. n. should have been taken out for the purposes of this suit, for the debt claimed in the original suit by the administratrix of Henry Howard can only be represented by an administrator d. b. n.

3rd. Supposing the personal representatives of Henry Howard to have joined in the bill, yet a bill of revivor can be brought only against the legal representatives of the deceased parties, as the heirs and personal representatives of Sarah Elder. It could not be brought even against a devisee of Sarah Elder, much less against the appellant, the assignees of devisees of a devisee of Sarah Elder.

4th. The personal representatives of Charles and Sarah Elder should have been made parties as directly interested in the distribution of the proceeds on account of their claim for advances to Elizabeth, under the provisions of the deed of 1814.

In support of the three preceding points, see Alex. Ch. Pr., 103, 104; Story's Eq. Pl., secs. 335, 354, 363, 374, 377 to 379, and notes, 382; 1 Merivale, 364, Boddy vs. Kent; 11 Ves., 306, Fellowes vs. Williamson; 2 Sumner, 383, Bettes vs. Dana; 3 Mason, 508, Slack vs. Walcott; 13 Ves., 161, Merrywether vs. Mellish.

5th. By the decree appealed from, the decree of 1829 was revived as against the appellant, and a trustee appointed to make sale of the land. Although the judge, in his opinion declares that an original bill, in the nature of a bill of revivor, would have been the proper proceeding in such a case, yet, he says, he does not see...