Roessner v. Mitchell

Pattison, J., delivered the opinion of the Court. The bill in this case was filed in the Circuit Court for Baltimore County, in Equity, for the sale of the lands of which one Frederick G. Mitchell died seized and possessed, situated in Baltimore and Washington Counties, for the purpose of partition among those entitled thereto. The defendants to the bill answered, and to the answer a replication was filed, and on the 14th day of July, 1906, a decree was passed by the said Court for the sale of said .lands, including those in Washington County, in which the decedent, at the time of his death, was seized and possessed of *462 only an undivided one-half interest, and the appellee was appointed trustee to make sale of such lands. A copy of,the hill and decree was, on August 27th, 1906, filed in the Circuit Court for Washington County, in Equity, as required by statute. The trustee on March 5th, 1913, reported to the Circuit Court for Baltimore County that he had sold to I. Frank Boessner, the appellant in this case, “certain of the lands mentioned in these proceedings in Washington County, Maryland,” that are particularly described in the i*eport of sale therein filed hy him. The sale of said lands was finally ratified and confirmed hy the Circuit Court for Baltimore County and a copy of such report of sale, so ratified and confirmed, was thereafter, on the 4th day of April. 1913, filed in the Circuit Court for Washington County in the chancery proceedings in which the above mentioned copy of the hill and decree had been filed. In the sale of said property the purchaser made a cash payment and the balance or deferred payment, as reported to the Court, was to be made upon the final ratification of the sale, but when the sale was ratified the purchaser refused to pay the balance, and the trustee filed his petition on the 13th day of August, 1913, alleging, as we have stated, the course of his proceedings and the refusal of the- purchaser to comply with the terms of sale, and praying for tho passage of an order requiring the purchaser to comply therewith, and upon his failure to do so, asking that the property be resold at the. risk of the purchaser. Upon -this petition an order nisi was passed requiring the purchaser to show cause, on or before the date therein named, why the property should not he re sold as prayed. To the petition the purchaser filed his answer, averring therein that the Circuit Court for Baltimore County, sitting-in Equity, was without jurisdiction to decree the sale of the lands in Washington- County, because: First, such lands were many miles away from and not connected with the *463 lands in Baltimore County and were entirely separate and distinct parcels; and that none of the plaintiffs and defendants, or parties properly made defendants, resided in Washington County, hut were, at the time of the passage of the decree, residents of Baltimore County. Second, that Frederick G. Mitchell was, at the time of his death, seized and possessed of only an undivided one-half interest in such lands in Washington County, the other undivided ohe-half interest being owned and held by non-residents of the State of Maryland who were not made parties to the cause and whose interests in said lands were not thereby sought to be sold; and asked that the petition be dismissed with costs. The case was submitted, without argument, upon the petition and answer, and the Court on the 16th day of September 1913, passed its order decreeing that the property in the petition mentioned be resold at the risk of the purchaser. Tt is from that order or decree that the appeal is taken. The first reason given by the appellant in contending that the Circuit Court for Baltimore County was without jurisdiction to decree the sale of the land in Washington County, is that such land is not contiguous to and does not form a part of the tract or parcel of land that is located in Baltimore County, but is a separate tract or parcel of land. This contention arises from the appellant’s construction of section 87 of Article 16 of the Code of 1912. This section provides that in all proceedings to which it is applicable, “If the lands lie partly in one county and partly in another, o'* partly in one county and partly in the City of Baltimore-then such proceedings may be commenced in either counH or in the City of Baltimore,” and “that Court shall have jurisdiction in which proceedings shall have been first commenced.” We do not construe this language as it is construed, by the appellants to apply only in those cases where the lands situated in the different counties are contiguous and together form one tract or parcel of land. The language used should *464 be given a ■wider and more comprehensive meaning. The. purpose of the statute was to avoid a multiplicity .of suit-, and the costs and expenses of such suits. If the appellant’s construction is to be placed upon the statute, it would apply only to a very small number of cases. In the great number of cases, where the lands in the different counties form separate and distinct tracts, proceedings would have to he instituted in each county in which the land is situated, which would be attended with much cost and expense. This we think was not the intention of the Legislature as expressed by the statute. In our opinion, the meaning of the language of the statute is, that if all the lands to be affected by the suit are not situated in one county or in the City of Baltimore, but some of them are in one county and some in one or more of the other counties, or some in the City of Baltimore and some in one or more of the counties, then such proceedings may be commenced in either county, or in the City of Baltimore, where any part of said land is situated, and the Court in which the proceedings shall have been first commenced shall have jurisdiction as to all of said lands, without regard to the fact that such lands are contiguous and form one tract or parcel of land. The Courts throughout this State have universally adopted the construction that we here place upon the statute and have so acted upon such construction, and until now such practice has never been questioned, or if so. it has never been brought to the attention of this Court, although in the case of Marguiondo v. Hoover, 72 Md. 9, the Circuit Court for Baltimore City, construing the statute as we have here construed it, passed a decree for the sale of certain ground rents and reversions in the City of Baltimore and twenty acres of land in Baltimore County for the purpose of partition. The Baltimore City property was sold under the decree, the land in Baltimore County was offered for sale, but withdrawn Several years thereafter an undivided interest therein of one ■of the tenants in common was sold under a mortgage executed *465 by the holder of such undivided interest before the passage of said decree, which was passed with the consent of the mortgagee, and the purchaser at the sale of such undivided interest filed his bill for the partition of said land, alleging therein that the land was divisible and that he had received no notice of the passage of the decree in the Baltimore City Court and that no copy of said decree and bill had been filed in the Circuit Court for Baltimore County prior to his purchase of said interest and the conveyance of the same to him. A demurrer to the bill was overruled and the case came to this Court upon the ruling of the lower Court overruling the demurrer’. This Court sustained the validity of the decree to the extent that it had been properly passed, but affirmed the ruling of the Court below on the demurrer, because a copy of the decree with the bill of complaint had not been filed in due season in the Circuit Court for Baltimore County, as provided by the statute. In that case the land located in Baltimore County could not have formed a part of the ground rents and reversions in Baltimore City, and in that respect it is lite the case before us. The second reason assigned for the want of jurisdiction in the Circuit Court for Baltimore County to decree the sale of the land in Washington County, in which the parties to the bill had only an undivided half interest, is fully answered by the opinion of this Court in the case of Dugan and Lyman v. Mayor and City Council of Baltimore, 70 Md. 1. In that case a decree was passed by the Circuit Court for Baltimore County for the sale of an undivided one-fourth inte,rest of a tract of land in said county for the purpose of partition among those entitled thereto, and the Court there said, for the reasons stated in its opinion, the lower Court erred in decreeing the sale of such undivided fourth interest, but added, “While such is our construction of the statute, we cannot agree that the Court in passing the decree had no jurisdiction of the subject-matter and that the purchaser *466 acquired no title to the interest sold under it. The hill was filed for the partition or sale of an undivided fourth part of the property in which the plaintiffs and defendants were tenants in common. The Court had a general jurisdiction to decree a sale of property held by co-tenants, and it had the jurisdiction to determine whether, under the Code, it had the power to sell an undivided interest in the property. Jurisdiction is a power to hear and determine. If the judgment of the Court is erroneous, the remedy is by appeal, and until rversed on appeal, the judgment is binding on the parties to the suit. The decree and sale under it could not, of course, affect in any manner the rights or interests of the owners of the remaining three-fourths of the property. The purchaser merely acquired the interest of the parties to the suit in the undivided fourth, and as such he is a tenant in common with the owners of the remaining three-fourths of the property.” In this case, as in that case, no appeal was taken from the granting of the decree, and what was said in that case fully applies to this case and in our opinion is a complete answer to the question here raised. In this case the purchaser of the Washington County lands merely acquired the interest of the parties to the suit in the undivided one-half and as such he is a tenant in common with the owners of the remaining half of the property. The decree of the lower Court will be affirmed. Decree affirmed, with costs to appellee.