Schwallenberg v. Jennings

• Decision Date: 21 January 1876
• Citation: 43 Md. 554
• Parties: STEPHEN SCHWALLENBERG v. JOSHUA JENNINGS, Administrator of GRAYSON JENNINGS.
• Court: Maryland Court of Appeals

43 Md. 554

STEPHEN SCHWALLENBERG v. JOSHUA JENNINGS, Administrator of GRAYSON JENNINGS.

Court of Appeals of Maryland

January 21, 1876

APPEAL from the Orphans' Court of Baltimore City.

The case is stated in the opinion of the Court. The order of the Orphans' Court of the 29th of June, 1875, referred to in the opinion of this Court, adjudged, ordered and decreed that if the said Stephen Schwallenberg do not upon the tender to him at any time on or before the first day of August next after the date hereof, of a conveyance of all the interest legal and equitable, of the estates of Joshua Jennings, the father, and of Grayson Jennings, the son, in and to the said leasehold estate in the said parcel of ground sold to him either by a joint deed of the two administrators of the said estates respectively, or by a separate deed of each, comply with the terms of his said purchase as stated in the present petition and expressly or impliedly admitted correct by himself; the petitioner, as administrator of the estate of Grayson Jennings, do, after the usual notice by publication in one or more newspapers, of the time, place and terms of sale and description of the property, resell the said leasehold estate upon the same terms as heretofore ordered, at the risk and cost of the said Stephen Schwallenberg. It is further ordered, adjudged and decreed, that if the petitioner, as administrator as aforesaid, do not, on or before the first day of August next, as aforesaid, tender to the acceptance of the said Stephen Schwallenberg, a conveyance such as is hereinabove mentioned in this behalf, the order of this Court of the 26th April, 1875, finally ratifying the sale hereinbefore mentioned to the said Schwallenberg, be and the same thereupon shall be, and stand rescinded, and the petitioner, as administrator, do make a new sale of the said leasehold estate, under the authority of the original order of sale made by this Court on the 4th day of March, 1872.

The cause was submitted on briefs to BARTOL, C.J., STEWART, MILLER and ALVEY, J.

W. H. Cowan, for the appellant.

Joseph S. Heuisler and E. Beatty Graff, for the appellee.

STEWART J., delivered the opinion of the Court.

This is an appeal from the orders of the Orphans' Court of Baltimore City, directing a resale of leasehold property belonging to the estate of Grayson Jennings, at the risk and cost of the appellant.

In his brief, the counsel of the appellant states that it is impossible to submit to this Court the questions especially intended, because of the omission of important papers from the record. If the appellant was not satisfied with the record as transmitted, he had the right under 30th sec. Art. 29 of the Code, in an application for a writ of diminution, to specify in writing, the parts requisite to be supplied, and have them furnished.

Under the 13th rule, adopted by this Court, 29 Md., 6, the Register of Wills, in making out a transcript of the record of proceedings, is prohibited from incorporating therein any paper or proceeding not necessary to the determination of the appeal.

The counsel of the appellant, however, submits his points upon the record as it is, and it is only the case as found therein that we can review.

It appears that Joshua Jennings, administrator of Grayson Jennings, under the order of the Orphans' Court, of the 4th March, 1872, sold the property in question to the appellant, on the 24th March, 1875. The sale was duly reported to, and ratified by, the Orphans' Court. The appellant refused to comply with the terms of sale. The appellee, on the 13th of May, applied for an order to resell the property. The appellant, by his answer, admits the sale to him, and its ratification by the Court-denies his refusal to comply with the terms of sale, but claims to be allowed, as a credit on the purchase, for the amount of a claim he alleges he holds against the estate of Grayson Jennings.

The Orphans' Court, on the 4th of June, 1875, passed an order directing compliance, on the part of the appellant, with the terms of sale, on or before the 10th of June following, or to show good cause to the contrary, and on failure to comply...