Stallings v. Stallings
| Decision Date | 07 October 1864 |
| Parties | JOHN T. STALLINGS ET AL. v. EZEKIEL STALLINGS. |
| Court | Maryland Court of Appeals |
ON a bill in Equity filed by one of the heirs at law of a deceased person under the Act of 1820, ch. 191, alleging that the lands of the deceased were not susceptible of division amongst the parties entitled thereto, and praying for a sale of the same, & c.--it was HELD:
1st. That a commission to " enter upon * * * divide," & c. said lands, is fatally defective in not requiring the commissioners in case the land could not be divided into as many parts as there are parties entitled, to divide it into as many parts as it is susceptible of, and to ascertain the value of each part, & c. as required by said Act; and consequently a return of the commissioners in conformity with such commission is equally defective.
2nd. That a return of the commissioners reciting, " that after having given due notice according to law to the parties, they entered," & c., was insufficient in not showing affirmatively the character of the notice, as well as the manner in which it was given.
3rd. That said return was insufficient in not showing the condition of the lands as regards incumbrances.
4th. That said return was insufficient in not shewing, in case the lands were not susceptible of division without loss and injury, & c., that the parties interested according to their order in point of age, were allowed the opportunity of availing themselves of the right of election under the 9th 10th and 30th Secs. of said Act.
5th. That where it appeared from the answer of the defendants though not alleged in the bill, that the deceased, the partition or sale of whose lands was in question, left a widow, still surviving when the answers were filed, the omission of the commissioners to show by their return the ascertainment and location of her dower interest, as part of their proceeding, was a fatal defect.
6th. That where a defendant having a vested interest in the share of his wife, one of the heirs at law, as tenant by the curtesy, has been summoned and has failed to appear and answer, and no proceeding has been had as by law in such case made and provided, the passing of a final decree of partition was an error.
APPEAL from the Equity side of the Circuit Court for Allegany County.
The bill of complaint in this case, filed on the 1st of May 1850 by the appellee, alleged that his father, Samuel Stallings, died in the month of May 1849, seized of certain lands, intestate, and leaving the complainant and the defendants, his children and heirs at law, all of whom were above the age of twenty-one years, and " that the said Samuel Stallings, deceased, left no debts whatever." The bill further charged, that the lands of which the said Samuel Stallings died seized were not susceptible of partition, and prayed that the same should be sold and the proceeds thereof distributed amongst the said parties in proportion to their respective interests.
The defendants, by their answers filed on the 31st day of March 1853, aver " that the real estate of the said Samuel Stallings, deceased, is susceptible of a fair and equal partition amongst his children and heirs at law, without loss and injury to all the parties entitled; that there is no necessity for a sale thereof, and these defendants do not desire that any sale of the same or of any part thereof should be made." They also aver that the said Samuel Stallings left surviving him a widow who " is still alive."
On the 20th of August 1860, and 12th of February 1862, interlocutory decrees for partition were passed, and a commission issued to " enter upon * * * divide," & c. the lands in question, which was returned on the 5th of May 1862.
The substance of the commission and return of the commissioners, upon which the questions in this case chiefly arise, will be found set forth in the argument of the appellants' counsel and the opinion of this Court. On the 1st of October 1862, the report of the commissioners was ratified; and on the 19th of November 1862, a final decree for the sale of the real estate was passed by the Court below, (SMITH, Special Judge,) from which this appeal was taken.
It appears from the record that David House, the husband of one the heirs at law, and having children by his said wife then alive, made a party to the bill of complaint, and returned summoned, had failed to appear and answer, and was still in default at the date of the final decree for a sale, and that no further process to compel his appearance had issued subsequently to the issuing of said summons, and that no further proceedings were had against said delinquent defendant prior to the passage of said final decree.
The cause was argued before BARTOL, GOLDSBOROUGH and COCHRAN, J.
J. H. Gordon, for the appellants.
The appellants claim a reversal of this decree for the following reasons:
1st. The bill does not state that the parties entitled to the real estate " could not agree upon the division thereof," and therefore the Court had no jurisdiction of the subject. 1 Dor. Laws, 748. Act of 1820, ch. 191, sec. 8. Hardy vs. Summers, 10 G. & J., 318, 323. Tipton vs. Chaney, 11 G. & J., 253, 255.
2nd. Because the commission issued in this cause does not give such powers and directions to the commissioners as are required by the Act of 1820, ch. 191, sec. 8, requiring them in case that the land could not be divided into so many parts as there were parties, then to divide it into as many parts as it is susceptible of, and to ascertain the value of each, and because said commission is defective in other respects, and therefore void. Tipton vs. Chaney, 11 G. &. J., 255. Bennett vs. Bennett, 5 Gill, 463, 467.
3rd. Because there is not sufficient evidence to show that the commissioners gave the notice required by law before proceeding to make partition. Act of 1820, ch. 191, sec. 14. Nesbitt vs. Dallam, 7 G. & J., 496, 510.
4th. Because said commissioners do not show whether there are any incumbrances upon said land, or whether they estimated or ascertained the value of said land subject to such liens, if there are any. Act of 1820, ch. 191, sec. 8.
5th. Because said commissioners, by their return, do not show whether the said lands were capable of partition into a less number of parts than there were parties entitled, and the value of such several parts, as required by said Act of 1820, ch. 191, sec. 8.
6th. Because it does not appear that an opportunity was given to the several parties entitled thereto, or that notice was given to them to elect to take said real estate, as provided by said Act of 1820, ch. 191, secs. 9, 10, and 30, or that the said parties severally refused to take the same as thereby provided. See sec. 30 of Act of 1820, ch. 191. Nesbitt vs. Dallam, 7 G. & J., 496, 510.
No counsel appeared for the appellee.
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Basford v. Cranford
...notice required by section 34. The appellant, however, cites and relies upon the cases of Cecil v. Dorsey, 1 Md. Ch. 223, and Stallings v. Stallings, 22 Md. 41. In Cecil v. Dorsey, the return stated that the had given "reasonable notice," and the chancellor said: "They must say, either that......