Roche v. Waters

• Citation: 72 Md. 264,19 A. 535
• Parties: ROCHE et al. v. WATERS et al.
• Decision Date: 19 March 1890
• Court: Court of Appeals of Maryland

19 A. 535
72 Md. 264

ROCHE et al.
v.
WATERS et al.

Court of Appeals of Maryland.

March 19, 1890.

On rehearing. For former report, see 18 Atl. Rep. 866.

Laws Md. 1816, c. 154, as amended by various acts prior to 1859, provides that "where an infant is entitled to any real * * * property, * * * or entitled to a reversion, vested or contingent remainder, or an executory devise, in any such property,* * * the court may, if it shall appear to be for the benefit and advantage of such infant, decree a sale thereof, if the provisions of the following sections are complied with." The following sections require that no decree for sale shall pass, except on petition of the guardian or prochein ami of the infant; that the infant must be summoned, and must be pear and answer by guardian to be appointed by the court; and that it must be made to appear by proof that a sale would be for the benefit and advantage of the infant.

Laws Md. 1868, c. 249, provides that "whenever, upon petition of any infant or infants, by their guardian or next friend, a decree has been passed * * * for the sale of the lands * * * of said infant,* * * and a sale thereof has been * * * made in pursuance of said decree, which said sale has been * * * confirmed by the court in which such decree was had, and it shall appear that there was a failure to summon said infant or infants, and to have them answer by a guardian appointed by the court,* * *it shall and may be lawful for the circuit courts, * * * sitting as courts of equity, to confirm said sale; and all proceedings had thereon, upon the petition of the guardian or next friend of such infant or infants, or upon the petition of any party having an interest in said sale, and after summoning such infant or infants, and his, her, or their appearance by guardian to be appointed by said courts, and such other proceedings had as required for a decree of sale of infants' real estate: provided, upon a hearing and examination of all the circumstances, it shall appear to said courts that said sale was fairly and bona fide made, and that at the date of said decree it was for the benefit and advantage of said infant or infants to sell said lands * * *; and, upon the confirmation of said sale, all the proceedings had, in pursuance of said decree, and in conformity thereto, including the deeds of the

19 A. 536

trustees there made, shall be as valid and binding upon all parties, and shall confer as good title upon the purchasers, as if the proceedings upon which the original decree was passed had been in strict conformity to the requirements of the law."

Argued before ALVEY, C. J., and IRVING, ROBINSON, BRYAN, MCSHERRY, and FOWLER, JJ.

S. D. Schmucker and George Whitelock, for appellants. Thomas S. Baer, for appellees.

BRYAN, J. The appellants filed a bill in equity, in the circuit court of Baltimore city, for the sale of certain real estate lying in said city. The land in question was devised by the will of one Solomon Betts, and the appellants set up a title to a portion of it, by virtue of certain proceedings in the superior court of Baltimore, on the equity side of the court. The appellees are devisees under the said will. The circuit court dismissed the bill of complaint. As the appellants' title is founded on these proceedings, it is necessary to examine them with particularity. Solomon Betts, who died in the year 1841, devised a tract of land in the city of Baltimore to certain trustees for the sole and separate use of his daughter Sarah Hitch for the term of her natural life, without being subject to the control of her husband, and without being liable for his debts; and, after her death, for the sole and separate use of the testator's granddaughter Augusta Hitch for the term of her natural life; and, after her death, for the use of her lawful issue, and for the heirs and assigns of such issue, forever, if any child or descendant of hers should be living at the time of her death, and, if none, then in trust for the sole and separate use of the testator's daughter Mary Davies for the term of her natural life, and after her death for the use of his grandson Solomon Betts...