Woelfel v. Tyng, 113

• Decision Date: 29 February 1960
• Docket Number: No. 113,113
• Citation: 158 A.2d 311,221 Md. 539
• Parties: George B. WOELFEL, Exceptant, v. Franklin Somes TYNG and Charles E. Edmondson, Trustees.
• Court: Maryland Court of Appeals

Page 539

221 Md. 539

158 A.2d 311

George B. WOELFEL, Exceptant, v. Franklin Somes TYNG and Charles E. Edmondson, Trustees.

No. 113.

Court of Appeals of Maryland.

Feb. 29, 1960.

George B. Woelfel, Annapolis, for appellant.

Franklin Somes Tyng, Bel Air (Charles E. Edmondson, Cambridge, on the brief), for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HENDERSON, Judge.

This appeal is from a decree of an equity court overruling exceptions by, and ratifying a sale to, a purchaser at a judicial sale of certain marsh land described as parcel No. 3. There is a cross-appeal by the Trustees from another part of the decree sustaining the exceptions of the same purchaser as to a one-half interest in parcel No. 5.

The case originated as a bill for partition filed by George W. Robbins, one of the heirs of the late Alexander G. Robbins, against the other eight heirs, his brothers and sisters. Trustees were appointed and they were directed to sell the properties at public auction. These properties consisted of two parcels of about 29 acres in the 'home' place, improved by a frame dwelling, and six other parcels of marsh land, that had been acquired by the decedent, principally by patents from the State. Parcel No. 3 had been acquired by patent in 1901, and contained about 16 acres. Parcel No. 5 had been acquired by patent in 1918, and contained about 244 acres.

The advertisement of sale described the various parcels to be offered. It was stated that no deed was on record as to the first parcel, containing about 40 acres, but it was claimed to have been used by Alexander G. Robbins and his heirs for at least 50 years. The second parcel, containing about 69 acres, was described by metes and bounds, and a reference given to the patent records. The third parcel was similarly described, as was the fourth, containing about 456 acres, and the fifth, containing about 244 acres. The sixth and seventh parcels, constituting the 'home' place, have already been referred to. The eighth parcel, containing about eight acres, adjoined the second parcel, and was described by metes and bounds and identified by patent references. The advertisement further stated: 'All of the above described parcels consist primarily of marshland suitable for duck shooting (especially black ducks) and muskrat trapping. All of the said tracts are located on the Blackwater River or its tributaries, with the exception of 'Robbins Expectation' (paragraph fifth) which is located near the head of Fishing Bay.' The terms of sale were stated to be 'cash at the time of sale, or one-third cash * * * and the balance in three months thereafter, or the balance in cash, at the option of the purchaser or purchasers, upon final ratification of said sale * * *.'

The sale was duly advertised and held on April 1, 1958. Parcels 1 and 5 were struck off to George Robbins for $4,200 and $2,750 respectively, parcels 2, 4 and 8 were struck off to Mr. Matthews, a real estate agent, who later announced that he was acting for Baker Robbins. Parcels 6 and 7 were struck off to Pauline Leopard, one of the heirs. Parcel 3 was struck off to Mr. Woelfel. The bidders then went to the office of one of the Trustees, where Mr. Woelfel paid cash for parcel 3, and also paid one-half the amount bid by George Robbins for parcel 5. (Through mistake, his payment was $50 less than one-half.) This sale was reported as having been made to George Robbins and George Woelfel. A heated argument arose as to how the parcels bought by Mr. Matthews as agent should be entered, and as to whether the heirs who were successful bidders should be entitled to credit their interests in the proceeds of sale against their purchases. Mr. Woelfel then left. None of the other purchasers made any payments on their purchases, although Matthews subsequently paid for the three parcels knocked down to him. George Robbins and Mrs. Leopard have never paid anything and they are reported to have left the State. The parcels on which they bid have been ordered resold. Mr. Woelfel duly excepted to the report of sale.

The appellant contends that the sale to him of parcel 3 should be set aside because he discovered after the sale that there was no right of way by land to that parcel or to parcel 5, and because the bidding was 'puffed' by the other successful bidders. He testified that he obtained from the trustees prior to the sale the appraisal made for them in the partition proceeding and obtained a detailed map of the county. He asked them where the properties were located, and who could show them to him. Mr. Tyng, one of the trustees, referred him to Mr. Wheatley, the auctioneer, and to Mr. George Robbins. Possibly because he came down only on Saturdays, he did not succeed in obtaining either one as a guide, and did not locate the properties until after the sale. It may be doubted whether he used due diligence under the circumstances. In DeTamble v. Adkins, 210 Md. 414, 420, 124 A.2d 276, 278, in connection with the sufficiency of a notice of sale we said: 'Each advertisement described the property so that it could be located by the exercise of ordinary intelligence and so that more detailed information concerning it could be obtained, if desired.' In that case the property was described by metes and bounds, but its general location was given as "'adjoining the development known as 'West View Shores' on the east shore of the Chesapeake Bay."' This was held sufficient, citing Sawyer v. Novak, 206 Md. 80, 110 A.2d 517; Preske v. Carroll, 178 Md. 543, 16 A.2d 291; Clemens v. Union Trust Co., 170 Md. 520, 185 A. 462, and Shaw v. Smith, 107 Md. 526, 69 A. 116. See also Stofberg v. Levland, Inc., 213 Md. 477, 482, 132 A.2d 122, Ivrey v. Karr, 182 Md. 463, 473, 34 A.2d 847, and Columbia Paper Bag Co. of Baltimore City v. Carr, 116 Md. 541, 544, 82 A. 442. It is well settled, under these decisions, that complete accuracy is not required in an advertisement, and that a judicial sale will not be set aside without a clear showing that an omission misled anyone, or had a prejudicial effect.

The advertisement in the instant case described the parcels as marsh land, suitable for ducking or trapping. There was no representation as to rights of way. On the contrary, a careful reading of the descriptions shows that all of the parcels were taken up as unoccupied lands as patents from the State, and that they were located on navigable waters at varying distances from the 'home place', even in different election districts. There was no reference to rights of way in any of the descriptions. Only in the case of the 'home place' was there any call to a public road. The appellee could hardly have supposed that he would be allowed access on foot or by motor vehicle over the contiguous lands of strangers. Indeed, it has been held in some cases that a way of necessity cannot be implied over contiguous lands of a grantor, where there is access over navigable waters. See Hildreth v. Googins, 91 Me. 227, 39 A. 550, Flood v. Earle, 145 Me. 24, 71 A.2d 55, and 3 Tiffany, Real Property § 794 p. 296 (3d ed.). We think Jay v. Michael, 92 Md. 198, 48 A. 61, relied on by the appellant, is distinguishable on the facts.

Mr. Woelfel testified he was familiar with gunning practices in that area. He admitted that there was access by boat to the parcels from at least two public wharves, and that he had no difficulty in locating them after the sale. Had he been diligent, he could have located the parcels before making his bids. His real complaint seems to be, not that they can only be reached by boat, but that the boat ride is too long.

On the question of 'puffing', the chancellor found no evidence that the bids by the various heirs were not made in good faith. 'Puffing' has been described as fraudulent or collusive action between the seller and the bidder, and no fraud or collusion between the trustees and the bidders is alleged. Cf. Kenyon v. Kenyon, 81 R.I. 223, 101 A.2d 477, 480. The bids made on behalf of Baker Robbins were ultimately made good, and the defaulting purchasers were not excused from liability. While it has been said that the court is not bound to depart from the terms of sale, Camden v. Mayhew, 129 U.S. 73, 9 S.Ct. 246, 32 L.Ed. 608, it has been recognized that distributees of the proceeds of sale may, under some circumstances, properly be allowed, as credits against the purchase price, their distributive shares. Murdock's Case, 2 Bland 461, 468; cf. Hopper v. Williams, 75 Md. 191, 193, 23 A. 352. In the instant case it was not shown that Woelfel's bid of $1,900 on parcel 3 was induced by bids of any of the heirs. As to the successful bid of George Robbins for parcel 5, the appellant can hardly be heard to complain that it was the result of 'puffing' when he sought to take advantage of it by agreeing to take a half interest in the property purchased.

On the cross-appeal, parcel 5 was struck off to George W. Robbins by the auctioneer, and the appellee undertook to take a one-half interest in that purchase. But George Robbins never completed...