Roche v. Waters
| Decision Date | 19 March 1890 |
| Citation | 19 A. 535,72 Md. 264 |
| Parties | ROCHE ET AL. v. WATERS ET AL. |
| Court | Maryland Court of Appeals |
On rehearing. For former report, see 18 A. 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 appear 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 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.
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 exam ine 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 Davies, his heirs and assigns, forever. By appropriate proceedings William George Krebs was substituted in the place of the trustees named in the will. In May, 1859, a bill in equity was filed in the superior court of Baltimore city, in which Sarah M. A. Hitch, Augusta Waters, William Francis Waters, Mary Augusta Waters, and Edmund C. Waters, the three last mentioned being infants, and William George Krebs, trustee, were named as complainants. Sarah Hitch and Augusta Waters were married women, the said Augusta being the Augusta Hitch named in the will of Solomon Betts. The defendants were Mary Davies and Solomon Betts Davies. The bill alleged that an ordinance had been passed for the opening of certain streets through the land devised by the will of Solomon Betts, and that the paving and grading of one of them had been commenced; that the property was liable for the expenses of paving and grading; that a large arrearage of taxes had accrued on the property from the year 1849 until the filing of the bill; and that Mrs. Hitch and Mrs. Waters had effected a loan of $1,700, secured by their life-interests, to prevent a sale of the property, and a sacrifice of the rights of all persons interested therein. It was further alleged that it would be for the interest and advantage of all parties concerned that a sale should be made of such part of the property as would be necessary to make the required payments. The prayer of the bill was that the sale might be made under and by virtue of the provisions of the acts of assembly in such case made and provided. The bill was signed by "Hugh Davey Evans, prochein ami of infants," and by the trustee, and the married women, and by complainants' solicitor. The defendants, in their answer, denied the right of the lifetenants to incumber the property by their failure to pay the taxes, and by allowing assessments to accrue, which were alleged to be uncalled for at the time; and also maintained that the sale of the property was not sanctioned by any act of assembly. A sale was decreed in March, 1860, of so much of the property as might be required to pay the paving and grading taxes and assessments, and all other claims due and owing to the city of Baltimore, and also of so much of the property as would repay the money borrowed to pay arrearages of taxes. Sales were made to George Presstman and George U. Porter, and ratified by the court. The land sold to Presstman has been acquired by the appellants, and is that to which they claim title in the bill of complaint in this suit. After the ratification of the sales, a petition was filed in the names of Mrs. Hitch and her husband, Mrs. Waters and her husband, and the three infants by their next friend, reciting the above-mentioned proceedings, and praying for a decree or order authorizing the mortgage of the property for a sum sufficient to pay the taxes and sums due for grading and paving. A subp na was issued for the infants, and a guardian ad litem appointed for them, who filed an answer in the usual form. No further proceedings under this petition appear in the transcript of the record sent to this court.
We shall pass by without special comment the irregularity of a suit by married women in their own names, and without making their husbands parties on either side of the record. Matters of more serious moment now demand our consideration. The city taxes were due by the life-tenants, and they were bound to pay them in full, without contribution from these infants. The prayer of the bill is that the property in question may be sold for the purpose of paying certain paving and grading taxes, and also of reimbursing the life-tenants for the expenditure which they made in payment of their own debt. The reason alleged for the sale; the sole ground on which it is asked; the special jurisdictional fact which is supposed to authorize it,--is that it would be "for the interest and advantage of all parties concerned." We shall proceed to inquire into this ground of jurisdiction. It is aside from the present purpose to consider the question whether, by virtue of its general care and superintendence of infants and their property, the chancery court of England has power to sell their inheritance when it appears to be manifestly to their interest that it should be sold, because it is firmly held in this state that a court of equity had the right to convert the real estate of an infant into money previously to the legislation on the subject of these sales. But the jurisdiction has been very greatly enlarged by a series of statutes. Of course, we have no concern with any of these statutes which were passed...
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