Slingluff v. Stanley

Alvey, C. J., delivered the opinion of the Court. The appellant in this case has adopted the novel method of exception to the ratification of the sale, in order to have the decree reviewed and declared void, for supposed defects in" the proceedings upon which the decree is founded, or the want of jurisdiction in the Court to pass the decree. If it be apparent upon the face of the proceedings that there was an entire want of jurisdiction of the Court to decree the sale of the property, then, doubtless, the objection could be availed of in this mode. But clearly such mode of attacking the decree for mere defects, errors, or irregularities in the proceedings, though apparent upon their face, is wholly without precedent, and entirely unwarranted by any principle of equity pleading. Such defects, errors or irregularities, if they exist, could only be reached and corrected by a direct appeal from the decree, or by bill of review for errors apparent. Tomlinson vs. McKaig, 5 Gill, 256; Bolgiano vs. Cooke, 19 Md., 375; Gregory vs. Lenning, 54 Md., 51. It.is urged, however, as an objection to the sale under the decree, that the allegations of the bill, upon which the decree’of sale was founded, are not sufficiently clear and definite to confer jurisdiction upon the Court to pass the decree for sale of the property. That there is no sufficient allegation of the seizin by James Sanford, under whom the complainants claim, of the land decreed to be sold, nor of the extent of his interest therein, at the time cf his death. But in this we cannot agree. The bill was filed, under section 99, of Article 16 of the Code, for sale of the real estate described, for the purpose [225] of partition among the parties entitled; it being alleged that such real estate was not susceptible of division in kind without loss and injury to the parties concerned. The bill alleged that James Sandford was, in his life-time, seized and possessed of seven-fifteenths undivided parts of a tract of land of one hundred and twenty acres ; and that, being so seized, entitled, or possessed of such undivided interest, he died intestate, leaving the complainant, James Anna Page, his only child and heir-at-law, and also his widow, surviving him. It is also alleged that the other part of said tract of land, being eight-fifteenths thereof, was owned., by the appellant. It is further alleged, that “ if it he found, as your orators charge, that •said real estate is not susceptible of division, and that no division can be made, except by greatly injuring and depreciating the value of said real estate, then they are entitled to a decree for sale for the purposes of partition arid a sale is accordingly prayed of the estate. These allegations clearly make a case for the exercise of the jurisdiction of the .Court, under the section of the Code referred to. The test is, whether a demurrer would have been sustained, if interposed to the bill (Tomlinson vs. McKaig, supra); and that it would not, we think is clear. Bolgiano vs. Cooke, supra. The allegations bring the case within the reason, though they do not pursue the strict letter of the statute ; and therefore there was enough alleged on the face of the bill to give the Court jurisdiction to decree the sale of the property. It is further objected to the .validity of the decree, and the sale thereunder, that there was no sufficient legal proof furnished, before the passage of the decree, of the actual seisin by Mrs. Page of that portion of the land alleged to have been owned by her father, in his life-time. But to this we cannot assent, as furnishing any ground for declaring the decree void. It is the allegations of the bill that confer jurisdiction, and determine the power of [226] the Court to decree the sale; and though the proof may be defective, or the decree be passed without proof, that does not affect the question of the jurisdiction of the Court. Such defect may show error in the exercise of jurisdiction, but not the want of jurisdiction. Tomlinson vs. McKaig, supra; Bolgiano vs. Cooke, supra. If the appellant had desired to avail himself of the objection to the supposed insufficiency of the proof to support the allegations of the bill, he should have paid heed to the summons of the Court, and appeared and interposed his defence. But instead of that he contemned the process ofthe Court, and allowed the bill to be taken pro confesso against him; and notwithstanding a considerable delay occurred before the final decree was passed, up to which time he could have appeared and answered, he wholly neglected to appear to the case, and never did appear until after the sale made and reported, when he appeared in the case for the first time, and then only to object to the sale. He is certainly in no position to object to the decree ; and his objection to the sale is not founded upon anything occurring subsequent to the decree. There is nothing alleged by him to impeach the terms of the sale, or the manner of making it; and the purchaser makes no objection, but is anxious to take the property as sold and reported by the trustee. The case falls directly within the well settled principle, that Courts have no power, under exceptions to a sale made under a decree, to review and decide upon the merits of the decree ; for as between the parties to the suit the decree is conclusive of the subject-matter involved; and if the Court had jurisdiction to pass the decree, that decree must be executed, unless it he reversed by regular proceeding had for the purpose. Bolgiano vs. Cooke, 19 Md., 395; Patapsco Guano Co. vs. Elder, 53 Md., 463. Being of opinion that the Court below was clearly right in overruling the exceptions to the sale, and finally ratify [227] ing the sale as reported, we affirm the order from which the appeal is taken. (Decided 16th December, 1886.) Order affirmed, and cause remanded.