Young v. Diedel

• Decision Date: 17 November 1922
• Docket Number: 26.
• Citation: 119 A. 448,141 Md. 670
• Parties: YOUNG v. DIEDEL.
• Court: Maryland Court of Appeals

119 A. 448

141 Md. 670

YOUNG v. DIEDEL.

No. 26.

Court of Appeals of Maryland

November 17, 1922

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

"To be officially reported."

R. E Lee Young filed exceptions to the ratification of a judicial sale by Adolph V. Diedel, receiver, at which he was the purchaser. From an order overruling exceptions and ratifying the sale, he appeals. Affirmed.

Wm. M Travers, Richard E. Preece, and R. E. Lee Young, all of Baltimore, for appellant.

David Ash, of Baltimore, for appellee.

URNER J.

The purchaser of the property decreed to be sold in this case excepted to the ratification of the sale on the theory that the court was without jurisdiction to pass the decree. The appeal is from an order overruling the exceptions and ratifying the sale.

It was expressly determined by the decree that the real estate to which it referred could not be divided in kind among the parties to the cause, who owned the property as tenants in common, and the evidence in the case fully justified that conclusion, but the bill of complaint omitted an allegation that such a division could not be made without loss or injury to the parties interested. The contention is that an averment to that effect was essential to meet the requirements of section 137 of article 16 of the Code, which provides as follows:

"The court may decree a partition of any lands *** or any right *** therein, *** on the bill or petition of any joint tenant [or] tenant in common, *** or if it appear that said lands *** or right *** therein cannot be divided without loss or injury to the parties interested, the court may decree a sale thereof, and a division of the money arising from such sale among the parties, according to their respective rights."

The property decreed to be sold consisted of irredeemable ground rents in two lots of ground in the city of Baltimore which the parties to the cause claimed as heirs at law of a deceased grantee to whom the property had been conveyed by a deed which was a proper subject of judicial construction in regard to the question as to whether it granted a fee-simple or a life estate. It was the purpose of the bill of complaint to have the deed construed, and, if the title were adjudged to have vested in the grantee in fee simple, then to have the property sold and the proceeds divided among the grantee's heirs at law, all of whom were parties to the proceeding. The bill also requested the appointment of a receiver to collect the ground rents, and sell the property under the court's direction. A receiver was duly appointed, by an interlocutory order, to collect the rents, and by the final decree he was further empowered and directed to make the sale which is the subject of the pending exceptions.

The court unquestionably had jurisdiction in the case for the purpose of construing the deed upon which the title of the parties to the suit depended. Equitable jurisdiction having been invoked and assumed for that purpose, it could rightfully be retained and exercised to the end that other suitable relief might be afforded. Linthicum v. W. B. & A. Elec. R. R. Co., 124 Md. 263, 92 A. 917; Shipley v. Fink, 102 Md. 220, 62 A. 360, 2 L. R. A. (N. S.) 1002. It has been held that the test of jurisdiction is to determine whether a demurrer to the bill could properly have been sustained. Slingluff v. Stanley, 66 Md. 225, 7 A. 261; Johnson v. Hoover, 75 Md. 486, 23 A. 903; ...