Sellman v. Sellman

• Decision Date: 28 May 1885
• Citation: 63 Md. 520
• Parties: JOHN B. T. SELLMAN v. JOSHUA SELLMAN and Others.
• Court: Maryland Court of Appeals

63 Md. 520

JOHN B. T. SELLMAN v. JOSHUA SELLMAN and Others.

Court of Appeals of Maryland

May 28, 1885

Appeal from the Circuit Court for Carroll County in equity.

This appeal was taken from an order of the Circuit Court dissolving the injunction previously granted, sustaining the demurrer to the bill and dismissing the bill. The case is stated in the opinion of this court.

The cause was argued before ALVEY, C.J., YELLOTT, ROBINSON IRVING and BRYAN, JJ.

Wm. P. Maulsby, for the appellant.

Charles B. Roberts, Attorney-General, for the appellees.

Alvey C.J., delivered the opinion of the court.

The bill in this case was filed by the children and grandchildren of Joshua Sellman against Joshua Sellman and Jane Sellman his wife, and others, for the purpose of having two deeds of conveyance declared void, as having been procured from the said Joshua Sellman by fraud and undue influence. In effect the bill charges that Joshua Sellman, the grantor, was, at the date of those deeds, a very old and infirm man, and greatly subject to the control and undue influence of a comparatively young wife, whom he had married a few years previous, she being his second wife, and not the mother of his children. It is charged that the grantor was, at the time of the making of those deeds, and still is, by reason of old age and other infirmities, of feeble and imbecile mind, and was "without capacity to dispose of his property with judgment and discretion;" and being in that weak and infirm state, he was made a victim to the fraud and undue influence of his designing wife, and was induced to make the deeds in her favor, which the complainants, by their bill, seek to have vacated. It is alleged that the wife procured the deeds to be made by the husband with the fraudulent intent and purpose of investing herself with the property of her husband "and of depriving his lawful heirs, on his death, of their just participation in his estate." The grantor is still living, and he and his wife are made defendants to the bill; and the complainants are parties who would be the heirs-at-law of the grantor if he were dead. The grantor has never been declared to be of unsound mind by inquisition, and the present bill does not ask for or contemplate any proceeding for having him so declared. The object of the bill is simply to have the deeds declared void and the proposed sale of the property enjoined.

The defendants, Joshua Sellman and wife, and Reifsnider, the trustee to whom one of the deeds was made, demurred to the bill, and the demurrer was sustained and the bill dismissed, upon the ground that the complainants had no such right or interest in the property as would entitle them to maintain a bill for the relief prayed. And this court fully concurs in that opinion.

It is a fundamental principle of equity pleading that, to entitle a party to sustain a bill, he must show an interest in the subject of the suit, or a right to the thing demanded, and proper title to institute the suit concerning it; and if such interest or right to sue be not fully shown by the bill itself, the defendant may demur. Mitf. Eq. Pl, 272, 329; Sto Eq. Pl. secs. 728, 730. And this being the requisite in pleading, the complainants, upon the maxim nemo est haeres viventis, can have no standing in court, for that maxim is of equal force in equity as at law. The children and grandchildren of a living ancestor cannot claim a right or maintain a suit in respect to the property of that ancestor while their interest in such property is merely in expectancy, depending upon a future inheritance that, by possibility, may never occur. The...