Bell v. Gosnell

Brent, J., delivered the opinion of the Court. The appeal in this case is from a decree of the Court below dismissing a bill of review, filed by the appellant for the purpose of vacating and setting aside a decree, which had been passed against him upon the complaint of Gosnell, one of the appellees. The ground upon which it is asked that this decree may be reviewed, is that there are errors of law apparent upon its face. These are alleged to be, First. That Gosnell, the complainant, had no vendor’s lien upon the land decreed to be sold. Second. That the decree is so ambiguous, that it is not clear whether the Court included or not, in the lien adjudged, claims for ground-rent and taxes. And lastly. That the case was not ready for final decree without reference to the auditor. In determining “ errors of law,” the bill, answer and other pleadings, together with the decree itself, under the well-established law of this State, will be looked at. Where errors apparent of law are assigned, they must consist of .some defect disclosed upon the record, which in law is sufficient to vitiate and avoid the decree. A merely erroneous conclusion or judgment of the Court will not answer. These are the proper subjects of redress upon an appeal, and not by a bill of review — as said by Lord Eldon, 17 Ves., 178, “ The cases of error apparent, found in the books are of this sort; an infant not having a day to show cause, &c., not merely an erroneous judg [573] ment.” "With the testimony in this ease we have nothing to do, and it has been, very properly, omitted from the record. Are there any such errors apparent as will vacate this decree ? The original bill in this case does not aver that the deed of conveyance from Ferine to Gosnell, exhibited with it, is the evidence of the vendor’s lien claimed by Gosnell. That a lien of this description may be assigned by special contract is admitted law, and whenever a decree, which recites, as the present one does, that it is rendered upon the pleadings and evidence in the case, is brought under examination by a bill of review, it will be presumed that all necessary and sufficient evidence was offered to support it. The original bill filed by Gosnell avers that he had a vendor’s lieu, and, non constat, that it was not in proof that it had been assigned to him by a special contract on the part of Ferine. As the bill clearly leaves open the question of vendor’s lien for proof, it cannot be successfully maintained that the record in this case presents, for the decision of this Court,- the question of such a lien as an error of law apparent upon the face of the decree. The second objection, that of ambiguity in the decree, must also be overruled. There is nothing contained in it which shows that the amount decreed to be due is for ground-rent or taxes. The prayer of the bill is, that the land mentioned in the deed exhibited may be sold for the lien which the complainant holds as substituted vendor by assignment, and does not embrace eithertaxes or ground-rent. The decree is not inconsistent with the prayer, and the amount fixed upon and allowed, is a conclusion of fact as to what was the true amount of vendor’s lien due, both principal and interest. Being a question of fact, it might -*■- [574] but cannot be made the subject of inquiry upon a bill of review assigning errors of law. (Decided 21st December, 1869.) "We do not perceive that there was any necessity or sufficient reason for referring this case to the auditor. The bill does not allege, as in the case of Bratt vs. Bratt’s Admrz., 21 Md., 578, that there were unsettled accounts between the parties, and ask that an account may be taken. There was but a single item charged, being a balance of purchase-money, which was properly the subject of proof, and which the Court, in its discretion, could ascertain without the aid and unnecessary expense of an audit. Koons vs. Shaffer, 27 Md., 90. We do not find any error in the decree of the Court below, and it will be affirmed with costs to the appellees. Decree affirmed.