Presstman v. Mason

Irving, J., delivered the opinion of the Court. On the 19th of J une, 1873, the appellees in these appeals, with certain other persons, filed a bill in the Circuit Court for Baltimore County, averring a tenancy in common with the Mayor and City Council of Baltimore, in an undivided fourth part of certain lands mentioned in certain Exhibits filed with the bill; and averring that it would be for the interest and advantage of all the parties to have the same sold. Subpoena was issued for the Mayor and City Council of Baltimore. The sheriff returned the writ “summoned;” and on the writ the City Solicitor entered admission of service and subscribed it. By successive stages the case went to decree on the 24th ot April, 1874. The decree was for a sale, and a trustee was appointed to make it. The sale, however, did not take place until the 13th of October, 1881, when the trustee did sell the property. The sale was duly reported, and the same was finally ratified in April, 1882. An auditor’s report was made, and the proceeds were duly distributed between the complainants and the defendant, the Mayor and City Council; and the proceeds were duly paid over accordingly ; and these appellees executed releases for their shares, which releases are a part of the .record in this case. On the 4th of December, 1885, the appellees, who were some of the complainants, asked and obtained leave of the Court to file a bill of review ; and on the same day filed a bill of review against their co-complainants and the Mayor and City Council of Baltimore. The bill of review avers certain irregularities in the proceedings in the former case, which are alleged to have been fatal to its validity, and rendered the decree ineffective to pass good title to the land sold, and also charges a great sacrifice of the land and their interests by the sale, which they charge brought a grossly inadequate price. The irregularities insisted upon are, that in fact, the Mayor and City Council were never “summoned,” though — 88 — so returned by the sheriff; and that the admission of service by thé City Solicitor was unauthorized, and ineffectual to do away with the need of actual and regular service; and that consequently the interlocutory decree was irregular and improvident; and that, as a consequence, all subsequent proceedings were invalid. To this bill, Lyman and Dugan, appellants, demurred; but the demurrer was overruled, and they answered. Subsequently, the appellants Mary H. Presstman and others filed a petition, as purchasers under the former decree, asking leave to be made defendants; which prayer was granted and they were accordingly made defendants and answered, as also did Lyman and Dugan, and the other defendants, who were originally complainants. All resisted a disturbance of the former decree, except the Mayor and City Council. Afterwards the appellees filed their petition alleging that the answer of some of the defendants made it- necessary for them to amend their bill, and asked leave to amend the same. This leave being granted, they amended their bill by alleging a want of jurisdiction in the Court “ to decree a partition of land, or a sale, without having before it all the tenants in common of such land, and that in this instance the owners of one undivided fourth part only of the land of which partition was sought to be made, were made parties to that suit, and that the entire proceeding is therefore null and void.” They also averred that knowledge of the mistake had only recently come to their knowledge ; and that they had not intended to ratify the proceeding by taking the money arising from'the sale. Answers to the amended -bill were filed; issue was joined, and after testimony the Court passed the decree setting aside the original decree, and from that decree appeal was taken. We are all of opinion that there was error in entertaining this bill of review, and setting the original decree aside. The bill of review ought to have been dismissed. — 89 — In so deciding it is not necessary for us to determine whether an undivided interest in land may be sold under such a proceeding as was had, and which it is sought to review. In fact, we ought to note that the question, as argued in this Court, is not presented by allegation in the bill of review. The only question as to jurisdiction raised by the bill of review, by the fair reading thereof, is the failure to make certain persons parties defendant. Eor is it necessary for ns to decide whether there are any irregularities or defects in the proceeding such as are claimed; for we do not think these appellees are so situated as to be entitled through bill of review to a consideration of any of these questions. Both on the ground of laches and estoppel are they disentitled to the relief they seek. “It is the universal law that if a man, by words or conduct, has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been done without his consent, and he induces others thereby to do what they would otherwise have abstained from doing, lie cannot question the legality of the act lie sanctioned, to the prejudice of those who have so given faith to his words or the fair inferences from his conduct,” 2 Story’s Eq., sec. 1546. Row what have these appellees done ? They asked the Court to exercise the jurisdiction, under sec. 99 of Article sixteen of the Code, and to sell the property. They claimed the benefit of the return of the sheriff, notwithstanding it may not be technically sufficient for a return of service on a corporation. They claimed the benefit of the admission of service by the City Solicitor. They asked for an interlocutory decree for want of appearance. They took testimony and claimed a decree for sale and obtained it. All this they did by a most competent solicitor, and what he did for them was their doing. They insisted that the trustee should make the sale when lie had been deferring in hope of a better price than had been offered. On their importunity the land was — 90 — sold; and,the purchaser is in Court, resisting a review of the decree under which he bought, and paid his money; which purchase money, after ratification of the sale at their instance, has been divided by the auditor among the parties; and they have received their share and executed releases therefor. Now more than eleven years after the decree for sale was passed they ask its review and rescission. More than four years after the sale and its ratification, and the payment of the money by the purchaser, and more than three years after they received their money, the whole thing is asked to be set aside by some of the very persons who procured it to be done. Under such circumstances a very strong case ought to be made of serious injury to the party complaining, to justify a Court in entertaining a bill for review and disturbing a decree passed so long ago. Such case the appellees did not make in their bill or proof. It is well settled that -a party to entitle himself to a bill of review must show himself to have been injured. Lansing vs. Albany Ins. Co., Hopkins Ch. Rep., 102; Hughes vs. Stickney, 13 Wendell, 280. This the appellees have entirely failed to do. Indeed it is difficult to see in what respect, on their own contention, they have .been injured, unless it be in the inadequate price which it is alleged the land brought; and so far as this proceeding is concerned they have no testimony on that subject, and rely wholly on. what was testified to in the original proceeding on that subject before decree was passed. Yet the sale was made and ratified without objection ; and now the sale is sought to be set aside through a review of the decree. Clearly the price which the property brought can have no hearing on whether the original decree was right or wrong. If a plaintiff who has caused an execution to be issued on a judgment he has procured, and which has been returned satisfied, and receipted by his attorney, cannot be allowed a writ of error, which is clearly the law, (Her — 91 — man on Estoppel, sec. 552); it is clear, that parties situated as these appellees are, under all the facts of this case must be estopped from claiming a hill of review. Having received their money and released the trustee, they cannot be heard now in a Court of equity to say that the Court had no right to do what they asked and procured to be done. Long vs. Long, 62 Md., 33. But besides all this, these appellees have failed to file their bill of review within the time which practice in this State has thoroughly established as necessary. Both in England and in this country the filing of bills of review is ordinarily restricted to a period within which an appeal may be taken. 2 Daniel’s Chancery Practice, 1580 and 1581, and note; Alex. Chy. Pr., 179 ; Berrett vs. Oliver, 7 G. & J., 207; Hitch vs. Fenby, 4 Md. Chy. Dec., 190, and 6 Md., 218. The Maryland authorities just cited, fix the period after which bills of review ordinarily cannot be filed, at nine months, which was the period within which appeals in equity could be prosecuted before the adoption of the new equity rules, which have shortened the time for appeal; and as this Court under constitutional authority have made a rule for the expediting of business, requiring all appeals to be taken within sixty days, we are not hereby to be understood as deciding that hereafter hills of review must be filed within that period instead of nine months as heretofore practiced. Parties are required to use reasonable diligence, and as respects the ignorance alleged, the question is not what a party actually did know, but what by using due diligence he might have known. 4 Md. Ch., 190. Here the-only ignorance alleged is of alleged irregularities in the proceedings. That the land brought less than its value, we do not understand the bill to allege ignorance; for that, of necessity, if true, they must have known as well then as now. The evidence of 'its value was given before original decree and none in this proceeding ; and, as we have already said, that cannot now — 92 — possibly be a ground for disturbing the original decree, whatever its effect might have been, if the sale had been excepted to before ratification. As to the irregularities, of which ignorance is averred, we have already said, that if they be irregularities, they were availed of to secure the decree ; and although they personally may not have known of them till recently, the facts were known to their counsel, or must, from their nature, have been known to him, a very competent person, or ought to have been ; and the appellees, as to such matters, are to be held as affected by the actual or constructive knowledge of their solicitor entrusted with the case ; unless it could be shown that they were the victims of fraud practiced on them by their solicitor; which in this case is not supposable, and was not suggested as possible, but on the contrary, was actually disclaimed. Weeks on Attorneys-at-Law, sec. 327; Worsley vs. Scarborough, 3 Atkyn’s, 392; Pepper & Co. vs. George, et al., 51 Ala., 190 ; May vs. LeClaire, 11 Wallace, 217. (Decided 15th December, 1887.) In no aspect of this case do we think there was any sufficient ground laid to justify the decree setting aside the original decree. If the proceeding was absolutely null and void on its face, a proceeding to set- it aside would seem needless. If in fact, as is contended, the appellants’ title was defective because of it, the appellees were not the persons to seek to remedy it. The decree must be reversed and the bill must be dismissed. Decree reversed, and bill dismissed.