Wampler v. Wolfinger

Eccleston, J.,

delivered the opinion of this court.

The appellant insists, that the decree ill this case is erroft'feóús, and should be reversed, because it excludes him from any opportunity of being reimbursed for any purchase money paid by him. Such an opportunity’he claims as his right, under the authority of Long vs. Long, 9 Md. Rep., 348 . But, in that case, it appears Ludwick Long, the party charged with committing the fraud, had executed niné promissory-notes of $100 each, to Henry Long, who was said to be defrauded. The bill mentions' these notes as having been given, and then states, that immediately afterwards they weré taken from Henry by Ludwick, Or his sons or agents; and were kept in his or their possession; that after Henry’s death, Ludwick administered upon his estate, and if he had charged himself with these notes, in his account in the orphans court, it had been with the' fraudulent intent of endeavoring to make good his title to the lands. The court below vacated the deeds as fraudulent. After hearing the argument upon the appeal,' this court held, that the proof was fully sufficient to establish the alleged fraud, and to entitle the complainants to the relief sought by them. The cause, however, was remanded for further proceedings. This, we think, was done for the purpose Of enabling Ludwick Long to be secured against the nine notes executed by him-.

*345 The present bill states, that the “consideration as set forth in the said deed, is in fact fraudulent, and merely pretended; and even if the said stated consideration was paid by the said Wampler to the said Wolfinger, it was wholly inadequate, and by fraudulent devices and contrivances of the said Wampler, it was extorted and taken from the said Wolfinger, and he was altogether deprived thereof.” This being a decree pro confesso, without any answer or proof, there is nothing on which to base even a presumption that any thing was either paid or secured to be paid, as purchase money, by the appellant, but such a presumption is clearly negatived. He, therefore, has no right to insist upon having the cause remanded for the purpose of allowing him to be reimbursed on account of purchase money.

The case of Strike vs M'Donald & Son, 2 Har. & Gill, pages 194, 243, 244 and 261, is an authority sufficient to show that this decree is not subject to objection, because it charges the appellant with issues and profits of the land.

It has been said in argument, that the averments in the bill are not sufficient to authorize a sale of a lunatic’s real estate; and such a sale having been directed by this decree, it is an error which should be corrected. But, even should it be conceded there is an error in this respect, the appellant is not injured thereby, and therefore, he cannot claim a reversal to correctthe error. Calwell vs. Boyer, 8 G. & J., 136 . Pratt, Adm’r of Kent, vs. Johnson, Adm’r of Johnson, 6 Md. Rep., 399 .

This suit was instituted by the lunatic and his committee, for the purpose of relieving the property of the lunatic from a fraudulent transaction, charged upon the appellant; he, therefore, can have no just claim to be regarded as the protector of the rights and interests of the lunatic.

Another ground relied upon for a reversal is, that the appellant had no notice of the order for taking the bill pro confesso, previous to the passage of the final decree.

The act of 1799, ch. 79, section 2, is the law which is relied upon by the appellees’ counsel as giving authority for the passage of this decree, without there being any necessity for *346 such previous notice to the defendants as has been insisted upon.

In the case of Burch vs. Scott, 1 Bland’s Ch. Rep., 112, the defendant having been summoned, and also attached,, without appearing, Chancellor Johnson, on the 30th of March 1824, passed an order requiring him, either in person or by his solicitor, to put in a good and sufficient answer to each interrogatory in the bill, or a plea or demurrer to the same, on or before the 4th day of the July term, next ensuing, or otherwise the chancellor, upon application of the complainants,, and at discretion, would either lake the bill pro confesso, or direct a commission to issue for taking depositions, and would finally decree, as to him should seem meet and consistent with the established principles of equity, in the same manner as if the-said defendant had appeared, and depositions had been taken in the usual way.. “Provided a copy of this order be-served on the said defendant, or left at his usual place of pbode, before the 20th day of June next.”

In a- note on page 114', Chancellor Bland says: “The-terms and form, of this order were adjusted by Chancellor Hanson, according to the provisions of the act of 1799, ch. 79, sec. 2, in the case of Walsh & others vs. Delassere & others, 19th February 1800, and it has been followed ever since.” Thus, it appears that, in.a few months after the passage of the statute, it received a construction from an experienced chancellor, which has been acquiesced in by all his-successors in office, including Chancellor Bland. We are-also informed that the late able chancellor followed the example of his.predecessors, until the Chancery court was abolished by our new Constitution. The early interpretation of the act has, therefore, been sanctioned by a uniform practice of more than fifty years. Under these circumstances we do not feel authorized to overrule it by an affirmance of the decree before us.

In Fitzhugh and others, vs. McPherson, 9 G. & J., 61 , it appears an order, pro confesso, had been passed, requiring nptice of the same to be given before the 25th of February 1834, then ensuing. The third ground urged by the counsel *347 for the appellants for reversing the decree, was, because the order had not been served upon the defendants by the day named therein, or at any other time. The experienced counsel for the appellees did not pretend to deny the necessity for giving the notice, but insisted that the decree, pro confesso, having recited that the order had been served, it must be presumed to have been done. On page 71, the court say: “In the absence of all direct proof to the contrary, we regard the statement of the chancellor, in his order of the first of April 1834, ‘that the above mentioned order had been duly served,’ sufficient evidence of the truth thereof.” Assigning this as a proper ground for refusing to sustain the defendants’ third objection to the decree, affords a reasonable inference that the court considered notice of the order necessary. If they had thought otherwise, it is most probable they would have said so, instead of relying upon the statement of the chancellor in his order or decree, as furnishing sufficient evidence that proper notice had been given.

In Porter, Exe'x of Earlougher, vs. Timanus, et al., 12 Md. Rep., 283 , the appellant objected to the correctness of a final order passed by the orphans court, revoking her letters, and appointing an administrator in her place. The order was said to be erroneous/because no notice had been given to her of a prior order passed on the subject. But, because the record showed that she was in court, represented by counsel, when the prior order was passed, this court considered that ample and complete notice was given. It was argued by the appellees’ counsel, that no notice of such an order was required by the terms of the act of 1831, ch. 315, relating to the matters in controversy, and that none was necessary. The court, however, said: “ We are of the opinion notice ought, in all cases, to be given to the party upon whom the order is designed to operate, and that he should be allowed his day in court to comply with its exigencies, or to show cause to the contrary, before the revocation of the letters.”

No notice of the order pro confesso, having been given in the present case, the decree will be reversed; but-, notwithstanding this reversal, nothing herein contained shall be held or *348 construed to affect, or in any way to impair, any right which any purchaser may have acquired to the property, or any part thereof, decreed to be sold in this case, under any sale which may have been made of such property under or by virtue of the said decree; but any such right shall be as good and valid as the same would have been in case the said decree had been in all things affirmed by this court, or as it would have been if the said cjecree had not been appealed from. The court below, however, will be fully authorized to pass all and every such order or decree in the premises as may be necessary to carry into effect the principles set forth in this opinion.

(Decided May 6th, 1859.)

As authority for reserving and protecting the right of a purchaser under a decree, even where the decree may be reversed upon appeal, see the case of Chase vs. M’Donald & Ridgely, 7 H. & J., 199. See, also, 6 H. & J., 204 ; 11 G. & J., 242 ; 12 G. & J., 453 ; 1 Gill, 345 , and 3 Md. Rep., 471 .

In the case before us the trustee reported a sale of the property, which was ratified and confirmed before this appeal was taken. The trustee is required to bring the proceeds of sale into the court below; and there they should be ultimately applied, according to the equitable rights which may be made to appear •to the satisfaction of the court, upon the final hearing of the cause. It will therefore be remanded» for further proceedings.

The costs are to await the final result.

Reversed and cause remanded.