Phelps v. Stewart

Tuck, S.,

delivered the opinion of this court.

We do not think that the appellants have assigned sufficient reason for reversing the order of the 3Jst of January 1859, dismissing this petition.

When the papers in a cause are transmitted from the chancery office to a circuit court, sitting in equity, under the Acts of 1854, ch. 149, and 1856, eh. 132, it must be proceeded in as if it liad not been removed. This was the rule applicable to cases removed from the county courts to the court of chancery, and the same reason applies here. Brown vs. Gilmor, 8 Md. Rep., 322 . Dugan vs. Hollins, 11 Md. Rep., 41 . Considered as the same cause between the same parties, the law imputes to them knowledge of the transmission, and likewise of all subsequent proceedings, as if the papers liad remained in the chancery office. On application to the proper officer the appellants might have known that the cause liad come under another jurisdiction, and by following and noticing the proceedings have avoided their present predicament.

We concur with the court below without passing any opinion upon the manner in which this question is presented, that point having been waived by the appellee’s counsel. But an appeal was taken, also, from the decree of December 15th, 1858, which makes it our duty to examine further into the record, and to notice other points urged in behalf of the appellants.

However the practice may have originated, the jurisdiction of the court of chancery and county courts, as courts of equity, in cases of partition, where tile land is situate in one county only, is too well established to be disturbed. Under the Act of 1786, ch. 45, instances occurred in chancery, and many more in both courts since the Act of 1820, ch. 19J. The proceedings may be by ex-parle petition, or by bill and answer, but in both they must conform to the requirements of the descent laws, and decrees have been reversed *240 for error in this respect. Corse vs. Polk, 1 Bland, 233 , note. Howard’s case, 1 Bland, 366 . Hewitt’s case, 3 Bland, 186 . Warfield vs. Warfield, 5 H. J., 459. Roser vs. Slade, 3 Md. Ch. Dec., 91. Wilhelm vs. Wilhelm, 4 Md. Ch. Dec., 330. Chaney vs. Tipton, 11 G. & J., 253. Tomlinson vs. McKaig, 5 Gill, 256 . Bennett vs. Bennett, 5 Gill, 463.

Many cases also show, that where the proceedings are by bill and answer, according to the usual course of the court, sales have been made by trustees instead of commissioners, and without objeclion in the Court of Appeals, although the decrees might have been reversed, if erroneous, on that ground. The cases of Jamison vs. Chesnut, 8 Md. Rep., 34 , and Purviance vs. Glenn, 8 Md. Rep., 206 , do not apply here, if considered with reference to the reasons assigned. Those decisions were made in accordance with what this court understood to be the principle of the case of Alexander vs. Ghiselin, 5 Gill, 138 , to the end that insolvents’ estates may be settled by one trustee under the appointment and control of one court, and thereby avoid contests with the officers of other courts, and possible conflict among the coarts themselves. Here there can be no such result, because whether the sale be made by a trustee or commissioners, the same tribunal must direct the distribution of the fund.

But we think there was error in the proceedings in other respects, for which they must be remanded, under the Act of 1832, ch. 302. The answer of two of the defendants shows that James Phelps, the ancestor, left a widow. The Act of 1820, ch. 191, sec. 27, expressly requires the dower to be laid off and assigned before partition among the heirs, unless a sale be had, with her assent., as provided by the 28th sec. Here the commissioners divided the land into several parts, and made all of them subject to the incumbrance of the widow’s dower. It is quite manifest that this may operate against her interests if she should desire to have her dower assigned, and be compelled to claim it in the hands of several purchasers, whilst the heirs might be prejudiced by a sale of the land injparcels, each charged with its proportion of the dower.

*241 The commission should set forth this as part of the duty of the commissioners, and they must perform it where there is a widow, and so make known to the court in their return. 1 Bland, 4 .6. Md. Ch. Pr., 329.

The proceedings being defective in this respect, it. follows that the court erred in ratifying the return and ordering a sale. To have a new partition and assignment of dower, the commission should be remanded to the commissioners, on the return of which the heirs will have the right to elect, and to this end the cause will be sent back to be proceeded with according to the views here expressed. The costs will be paid by the estate. Cause remanded.

On the 6th of June 1861, the appellee, by his counsel, P. H. Stockett, moved to affirm the cause absolutely, and countermand the transmission of the record to the court below, upon the ground that the appeal was taken on the 1st of February .1859, by the defendants below, from the decree of the 15th of December 1858, and the order of the 31st of January 1859, dismissing the petition of one of the defendants, desiring that said decree should be opened; that in the opinion of this court both the decree and order are sustained but the cause was remanded by reason of error in the return of the commissioners, which bad been finally ratified, on the 21st of July 1858, from which order of ratification no appeal was taken by the defendants or complaint alleged al any time, and the appellee submits that under the circumstances of this case, the defendants are concluded by that order, not having appealed from it. On this motion— Bartol, J.,

delivered the opinion of this court:

Upon consideration of the motion filed in this cause by the appellee, on the Gth day of June, this court adhere to the opinion heretofore expressed, and therefore, overrule the motion.

By the first section of the Act of 1830, ch. 185, it is provided that, “upon appeal from a final decree, or order in the nature of a final decree, within the time limited by law for *242 such appeals, all previous orders and decrees passed in the cause, shall be open in the appellate court in the same manner as if such previous orders or decrees had been as heretofore appealed from, within nine months from the time of the passing of the same.”

This Act has been several times before this court and the former Court of Appeals for construction. In the case of Dugan vs. Gittings, 3 Gill, 153 , the court say:

“The language of the Act has been made so comprehensive, as to embrace all orders or decrees, whether they are matured decrees professing to establish all the rights in controversy between the parties, as in the case of Strike vs. McDonald, 2 H. & G., 260, or mere interlocutory and preparatory orders, as in the case of Snowden vs. Dorsey, 6 H. & J., 114 .”

In the same case it was decided, that this provision of the Act of 1830 was not repealed by the Act of 1841, ch. 11.

By the Act of 1845, ch. 367, sec. 3, the same right is saved to an appellant, which before existed, of having all previous orders and decrees passed in a cause, open for review, on an appeal from the final decree.

Before the decision of the case of Dugan vs. Gittings, the late Court of Appeals was called on to construe the Act of 1830, in the case of Porter vs. Askew, 11 G. & J., 346 , in which a bill was filed to have certain lands sold for partition among alleged tenants in common, the same being incapable of division in specie'. A decree for sale was passed on the 15th of May 1835, which was executed, and on the 15th of April 1839, an order was passed, confirming the account of the auditor; from which last order an appeal was taken, and the court decided, that the decree of the 15th of May 1835 was not open for review upon that appeal. Although that decision would seem to be in conflict with the general language employed by the court in the case of Dugan vs. Gittings, before cited, we adhere to the decision in Porter vs. Askew, and are of opinion that the court properly refused to examine into the validity of the original decree in that case.

The case before us, however, does not, in our opinion, fall within the decision of Porter vs. Askew.

*243 (Decided Sept. 20th, 1861.)

ia (this case, the error in the proceedings of the circuit court was in the order of the 21st of July 1858, ratifying the commissioners’ report. That order was, in its nature, interlocutory — a part of the preliminary proceedings leading to the decree of sale, which, according to our construction of the Acts of 1830, 1841, and 1845, before referred to, was before us for review on this appeal, although no appeal therefrom had been taken or prayed. See Stem & Wife vs. Cox, 16 Md. Rep., 534 .

Motion overruled.