S. Baltimore Brick & Tile Co. v. Kirby

• Citation: 89 Md. 52,42 A. 913
• Parties: SOUTH BALTIMORE BRICK & TILE CO. v. KIRBY. OWEN v. SAME.
• Decision Date: 14 March 1899
• Court: Court of Appeals of Maryland

42 A. 913
89 Md. 52

SOUTH BALTIMORE BRICK & TILE CO.
v.
KIRBY.
OWEN
v.
SAME.

Court of Appeals of Maryland.

March 14, 1899.

42 A. 913

Appeals from circuit court, Baltimore county, in equity; N. Charles Burke, Judge.

In proceedings against the South Baltimore Brick & Tile Company, receivers were appointed and a sale of the property ordered. A sale was made to John E. Kirby, to which the company, and Wyatt Owen, its president, filed exceptions, and from an order overruling the exceptions and ratifying the sale they separately appeal. Reversed, and resale ordered.

Argued before McSHERRY, C. J., and BRISCOE, PAGE, ROBERTS, PEARCE. and SCHMUCKER, JJ.

Thomas R. Clendinen, for appellant South Baltimore Brick & Tile Co.

Oscar L. Quinlan, for appellant Wyatt Owen.

D. G. McIntosh and Thos. Foley Hisky, for appellees.

PEARCE, J. In this case are presented two appeals, in one record, from an order of the circuit court for Baltimore county ratifying a sale of a tract of land made by trustees and receivers appointed, by a decree of that court, for the sale of the property of the South Baltimore Tile & Brick Company, an insolvent corporation. The case was submitted for decree, without testimony, upon the following agreement: "It is agreed that the above case be submitted for decree, and that the above decree is a proper decree to be passed in this case." The court thereupon passed the decree agreed on, appointing Stevenson A. Williams, John P. Horsey, and George M. Sharp "trustees to make sale, and receivers of said property and of said corporation," and directed that they should "sell the real estate and plant of said corporation, dividing the same in such manner as they should deem best, and make such terms as to payment as in their judgment may be most advantageous, and they shall give at least three weeks' notice thereof by advertising in a newspaper published in Baltimore county and in one published in Baltimore city." The debts of the corporation are from $60,000 to $70,000, and its property consists of six lots of land, near the middle branch of the Patapsco river, aggregating 83 1/2 acres; but the only lot here involved is lot No. 7, on Warners Point, opposite to Ferry Bar Bridge, in Baltimore city, and on the Shore Line Railway, containing 16 1/2 acres. It contains large deposits of line day for brickmaking, and a large plant for this business, which has been carried on there, but the plant has been neglected and is of little value. The lot is shown to be of great value for an excursion resort, the adjoining lot having been successfully used for that purpose for some time. It has also two large wharves, extending to navigable water, and is thus accessible both by rail and water. The trustees have never advertised any of the property as directed by the decree, but on the 2d of February, 1898, sold lot No. 7 at private sale to John E. Klrby for $18,000, of which $500 was paid in cash, $4,500 was to be paid on ratification of sale, and the balance

42 A. 914

to be secured by mortgage on the lot, payable in installments, in one, two, and three years, with interest at 5 per cent. from date of mortgage. On February 26, 1898, the receivers and trustees filed a "petition and report," setting forth that they believed it would be for the advantage of their estate if there could be a private sale of lot No. 7 in lieu of public auction, and that a public auction would not realize as much as a private sale; that they had diligently endeavored to sell said lot, employing brokers, and enlisting certain mortgagors of the property who were still liable upon covenants; that the best offer received for said lot was $18,000 from said Kirby, who states he will use it as a summer resort; that larger sums were at one time suggested, but no formal offer made beyond that of Kirby; that they believed the price fair and reasonable, and submit the affidavit to that effect of two experienced brokers; and they then "pray leave to make private sale without advertisement, and for authority to accept said offer, and, leave of the court being first had and obtained, to file this as their formal acceptance of said offer and report of sale to said John E. Kirby." On the same day, the court, without notice to any of the parties to the proceedings, passed an order accordingly, authorizing the sale made, to be reported for final ratification. On March 29, 1898, Wyatt Owen filed a petition showing that he was a stockholder in the defendant corporation, and praying to be made a party, in order that he might except to the sale, and the court passed an order accordingly. On the same day he filed exceptions to the sale reported. On April 9, 1898, Julia R. Warner and others, the mortgagors heretofore mentioned as liable on their covenants and parties to the decree, filed exceptions identical with those of Owen, and on April 21, 1898, the defendant corporation also filed exceptions. Testimony was taken, and the exceptions were all overruled, and the sale was ratified. From this order overruling these exceptions and ratifying the sale, Owen and the defendant corporation have both appealed, but the Warners have not appealed.

The exceptions of Owen may be condensed as follows: (1) That the private sale made was in violation of the terms of the decree; (2) that the price was inadequate, and much less than public auction would have realized; (3) that the chief value of the property consisted in fine clay for brickmaking, of which the general public was never informed by advertisement or otherwise; (4) that an offer of $20,000, on better terms, had been made by a responsible party since the attempted private sale.

The exceptions of the defendant corporation are in substance: (1) That, as the decree and its terms were fixed by consent, a...