Stallings v. Stallings

CocheaN,. J., delivered the opinion of this Court. The bill in this case was filed for the purpose of obtaining a partition of the real estate, of which Samuel Stallings died seized and intestate, among his heirs at law; and the decree from which the appeal was taken, was passed upon a return made hy the commisioners appointed to enter upon and divide the lands in question. The objections [45] relied on as a ground for reversing this decree, are founded chiefly on an alleged failure of the commissioners to comply with the provisions of the Act of 1820, ch. 191, which points out and particularly describes the course of proceeding in such cases. It is settled that upon an appeal from a decree for a sale in a case of partition, the previous order ratifying the commissioners’ return may be reviewed, though no appeal was taken therefrom, the order being merely interlocutory and a part of the proceedings preliminary to trie decree. Phelps vs. Stewart, 17 Md. Rep., 231. We find by an examination of the record that the objections made are most of them well founded; and indeed the errors suggested seem to bo so manifest, that it is scarcely necessary to do more than point them out, in a review of the action of the commissioners in connection with the course of proceedings prescribed by the Act. The first objection stated by the appellants, that the Court below had no jurisdiction, because the bill does not aver that the parties in interest could not agree upon a division of the property in question, might have been presented at the proper stage of the case, whether with or without effect, it is not necessary for us to decide. That, however, does not appear to have been done, nor does it appear to have been suggested in the Court below, and for that reason wo are not at liberty to consider it here. Act of 1841, cb. 163. Knight vs. Brawner, 14 Md. Rep., 1. The commission authorizing the commissioners to enter upon, divide and apportion the lands mentioned in these proceedings is clearly defective in several particulars. The 8th sec. of the Act of 1820 provides, in case the parties cannot agree, that the Court shall issue a commission, authorizing and .empowering the commissioners, or a majority of them, if the land cannot be divided fairly and equally among all the parties interested, to divide it into as many parts as it is susceptible of, [46] without loss or injury, and then to ascertain the value of each part. The commission in this case conferred no Such power, nor did it require the commissioners to divide the lands into as many parts as it was susceptible of, or to ascertain the value of the several parts upon such a division, and in that respect their return seems to conform to the terms of the commission. It thus appears that neither the commission nor the proceedings of the commissioners were in accordance with the requisitions of the Act, and on" that ground we think they were erroneous and irregular. Bennett vs. Bennett, 5 Gill, 463. The return of the commissioners is also objected to, because it does not show that they gave the notice prescribed by the 14th section. The return states, “that after having given due notice, according to law, to the parties, they entered,” &c. What notice was given does not appear; and at most, the return only shows that such a notice was given as the commissioners thought was sufficient to satisfy the terms of the Act. That, in our opinion was not sufficient. The return ought to show affirmatively what the notice was, as well as how it was given, so that the real fact would appear to the Court entirely disconnected and free from the inferences of the commissioners in regard to its sufficiency. We think also, that it ought to have .been shown that the lands were unincumbered, or at least have disclosed their condition in that particular. The 8th sec. requires that the condition of the lands as to incumbrances should be inquired into and ascertained. The only thing appearing in these proceedings, from which the absence of incumbrances might be inferred, is the averment in the supplemental bill, that Samuel Stallings left no debts at the time of his decease, which the appellants neither admit nor deny in their answer. This being a statutory proceeding, a strict compliance with the Act authorizing it is necessary; and we are of opinion, that the return of the Commissioners should show whether the [47] land is incumbered or not, so that its true condition would appear. It may be inferred from the return that there were no incumbrances, but the fact does not appear with the degree of certainty necessary to show to the Court, that the commissioners had performed the whole duty required of them by the Act. But there are other fatal defects. In case the land for the partition of which proceedings are instituted, is not susceptible of division without loss or injury, the 9th, 10th and 30th secs, vest the parties interested according to their order in age, with the right of election to take the property, and pay the other parties their respective shares of the valuation in money. There is nothing here to show that the parties were permitted to avail themselves of the right or privilege thus conferred. This was a valuable right, of which they could not be deprived either by the return of the Commissioners or the subsequent action of the Court thereon. Chaney vs. Tipton, 11 G. & J., 253. And again, the 27th sec. expressly requires that the widow’s dower, if the intestate leave a widow, shall be laid off to her before partition is had amongst the heirs, unless she assent to a sale as provided in the 28th section. The widow of Samuel Stallings was not even made a party to this case, nor does the bill allege that he left a widow, although the appellants aver in their answer, that he not only left a widow, but that she was still surviving when the answer was filed. The commissioners by their return were bound to show the ascertainment and location of her dower interest, as a part of their proceedings; but in that respect the return is entirely silent, and therefore erroneous. Phelps vs. Stewart, 17 Md. Rep., 231. We must also observe that so far as David House is interested as one of the defendants in this case, such proceedings do not seem to have been had as would authorize the passage of a final decree. He has neither filed an [48] answer, nor appeared as a party in tbe case, although he has a vested interest in the share of his wife, Polly House, as tenant by curtesy, which it is necessary to respect in making a partition or sale. It is enough to say that the course of proceeding necessary to obtain a final decree against a defendant who does not obey the summons to appear and answer, was not followed here. (Decided October 7th 1864 ) The decree must be reversed with costs to the appellants, and the cause remanded for further proceedings. Decree reversed and cause remanded.