Trustees of Samuel Ready School for Female Orphans v. Safe Deposit & Trust Co. of Baltimore

• Decision Date: 26 June 1913
• Citation: Trustees of Samuel Ready School for Female Orphans v. Safe Deposit & Trust Co. of Baltimore, 88 A. 261, 121 Md. 515 (Md. 1913)
• Parties: TRUSTEES OF SAMUEL READY SCHOOL FOR FEMALE ORPHANS v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.
• Court: Maryland Supreme Court

88 A. 261

121 Md. 515

TRUSTEES OF SAMUEL READY SCHOOL FOR FEMALE ORPHANS v. SAFE DEPOSIT & TRUST CO. OF BALTIMORE.

Court of Appeals of Maryland

June 26, 1913

Appeal from Circuit Court of Baltimore City; Thos. Ireland Elliott Judge.

Proceedings by the Safe Deposit & Trust Company of Baltimore, Trustee for partition or sale of trust property. From an order overruling exceptions to a sale of ground rent and confirming the sale, the purchaser, the Trustees of the Samuel Ready School for Female Orphans, appeals. Order affirmed.

Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Wilton Snowden, Jr., of Baltimore, for appellant.

John Hinkley, of Baltimore, for appellee.

BRISCOE J.

The appeal in this case is from an order of the circuit court for Baltimore city overruling exceptions to a sale of a ground rent of $2,000 per annum, issuing out of a lot, situated on Boston street, in the city of Baltimore, and ratifying and confirming the sale. The sale was made by the appellee, as trustee, to the appellant, on the 21st of February, 1913, for the sum of $39,000, under a decree of court passed on the 10th day of May, 1898, in the case entitled the Safe Deposit & Trust Co. of Baltimore, Trustee, v. Kensett et al. In the report of sale made by the trustee it is stated that the trustee has sold all of the property mentioned in these proceedings and has continuously endeavored to sell the rent but has been unable to sell the same at an adequate price that, subject to the ratification by the court, a private sale has been made to the appellant of the ground rent for the sum of $39,000, to be paid in cash upon the ratification of the sale; that the price is a fair and adequate one and is more than could be obtained at public sale; and that it is to the benefit, interest, and advantage of all persons interested that the sale be ratified and confirmed. There was filed with the report a certificate of two real estate brokers as to the adequacy of price at which the ground rent was sold.

The objections to the ratification of the sale are based upon the following grounds: (1) Because the trustee cannot give a good and merchantable title to the property; (2) that the appointment of the Safe Deposit & Trust Company as sole and substituted trustee was in violation of the provision of the testator's will, which provided that the number of trustees should always be three, and, even if the substitution be valid, the appellee was not a proper party to institute the partition proceedings; (3) because the jurisdictional averments contained in the bill are not sufficient to bind unborn persons, and the case is not therefore brought under the Acts of 1862, c. 156, and 1868, c. 273, section 198, art. 16, of the Code of 1888, as stated by the auditor and master in chancery; (4) because the decree under which the property was sold is too old, having been passed nearly 15 years ago, and was not a decree for sale and immediate reinvestment of the property but was intended to operate in the future and is not now a valid and subsisting decree.

It will be seen that the objections relate to and are based upon the form and validity of the proceedings adopted by the trustee prior to the decree and not in any way to the title of the testator, Mr. Kensett, the owner of the property, or those from whom he acquired the property. Some of the objections, in our opinion, are not open for review and cannot be regarded as sufficiently jurisdictional to defeat the sale under the decree or to require the appellee to procure a new decree in order to accomplish the same result as has been obtained here. Hamilton v. Traber, 78 Md. 28, 27 A. 229, 44 Am. St. Rep. 258; Wickes v. Wickes, 98 Md. 308, 56 A. 1017; Slingluff v. Stanley, 66 Md. 220, 7 A. 261.

The property here in question, and the decree for its sale, were before this court in Kensett v. Safe Deposit & Trust Co., 116 Md. 526, 82 A. 981; and, while the objections here raised were not directly presented, the decree was treated in that case as a valid and subsisting decree, and it was held that the parties in that case would be bound by the decree.

Whether the appointment by the court in 1889 of the Safe Deposit & Trust Company as trustee upon the resignation of the three trustees named in the will was a proper compliance with the sixteenth clause of the will is not a matter which can affect the appellant on this appeal.

The sale was made by the appellee, as a specially appointed trustee under the decree of 1898, and not under its substitutional appointment in 1889. The court had the undoubted power to appoint less than three trustees to make the sale.

The substituted trustee appears to have been properly appointed under section 94, art. 16, of the Code; and, if the court had jurisdiction of the subject-matter and the parties, a mere irregularity in the proceedings will not be inquired into or deemed sufficient to sustain exceptions on the purchaser's appeal because they do not in any manner affect the title of the purchaser. Taylor v. Monmonier, 120 Md. 101, 87 A. 513; Jencks v. Safe Deposit Co., 87 A. 1031; Offutt v. Jones, 110 Md. 233, 73 A. 629; Kennard v. Bernard, 98 Md. 513, 56 A. 793; Sloan v. Safe Deposit Co., 73 Md. 239, 20 A. 922; Newbold v. Schlens, 66 Md. 587, 9 A. 849; Benson v. Yellott, 76 Md. 159, 24 A. 451.

The bill appears to have been filed under article 16, § 198, of the Code of 1888, now section 228 of article 16 of Bagby's Code, and we think its averments were sufficient to give the court jurisdiction to pass the decree.

The prayer of the bill was in the alternative for partition or sale of the real estate, if the same shall be found beneficial. It is as follows: That a sale or sales may be made of the lots of ground and improvements in Baltimore city and the proceeds divided under the direction of the court, or that partition of some or all of them may be made if the same shall be found beneficial. There was also a prayer for general relief. The object of the bill was to have the property partitioned, and, if not susceptible of partition without loss or injury, then to have it sold.

In Ballantyne v. Rusk, 84 Md. 650, 36 A. 361, a bill containing somewhat similar averments was held to contain the necessary jurisdictional facts required by the statute. Scarlett v. Robinson, 112 Md. 206, 76 A. 181; Campbell v. Lowe, 9 Md. 500,...