Bratt v. Bratt

Goldsborough, J.,

delivered the opinion of this Court:

The bill of complaint which was filed in this case on the 13th day of November 1858, in the Circuit Court for Baltimore County, alleges, that the complainant, as administratrix of John Bratt, sold and conveyed to the appellant, certain leasehold property in the City of Baltimore, which belonged to her intestate, — the purchase money therefor, amounting to $9100; that at the time of the sale, there were'outstanding mortgages against this property to the amount of $1000, for the payment of which, the appellant was allowed to retain that sum, leaving a balance due the complainant of $2100; that she did not take any note or obligation to secure the payment of this sum, and claims to hold a vendor’s lien on the property for the same; that the appellant has wholly failed to pay the amount claimed, and resists the payment on the ground that there are unsettled accounts between the complainant and himself, and that she has repeatedly requested him to state his account, but has never been able to induce him to do so. The bill further prays that an account may be stated under the authority of the Court,

*583 The appellant being summoned failed to appear and answer the bill, and ¡vdccroe pro confesso was taken, against him. A commission to take testimony ex-parte was issued; and on the return thereof, the Circuit Court passed a final decree directing the appellant to bring into Court the sum of $2100 by a day therein named, with interest from the 8th day of December 1852; failing go to do, the Court ordered the property conveyed to the appellant, to be sold for the payment of appellee’s claim. Shorn this decree this appeal was taken.

We are therefore to consider whether the allegations in the bill supported by the exhibits and testimony in the cause, will justify a Court of Equity in extending its aid in support of the appellee’s claim. We entertain no doubt that the appellee is fully justified in claiming a vendor’s lien on the leasehold property sold by her, and that the same may be enforced in tills case in equity for unpaid purchase money. Such an estate as this, being for ninety-nine years, renewable forever, so far partakes of tbe realty that tbe title can only pass by deed executed with all the solemnities which are prescribed by law for the sale and conveyance of real estate, different in all respects from the sale and transfer of personal chattels, the title to which may pass by simple delivery accompanying the sale. The point made by tbe appellant, that the appellee has mo lien against leasehold property, is not supported by the authorities cited by bim. Those are cases relating to the salo of personal chattels, and we think the distinction is obvious.

Tbe appellant, without any appearance, or making any defence in tbe Circuit Court, comes into this Court and excepts to the jurisdiction of the Circuit Court as a Court of Equity. This he is not permitted to do, by the express terms of the Act of 1841, ch. 163. In the case of Knight & Wife, vs. Brawner & Dunnington, 14 Md. Rep., 1 , this Court said: “That no objection to the jurisdiction appearing by the record to have been made in the Court below, *584 the Act of 1841, ch. 163, precludes the Appellate Court from considering the question.”

The appellant however contends, that the appellee should have shown by the allegations in her bill, that she had exhausted her remedy at law against the appellant, or have satisfied the conscience of the Court from the evidence in the cause, that a prosecution of her claim at law would not have availed to secure the payment of her claim.

There have been conflicting decisions on this question, which is now set at rest by the 130th section of the 16th Art. of the Code. We deem it unnecessary to express any opinion upon this point, as it is not material to the disposition of this case.

The complainant’s right to resort to a Court of Equity, is clearly established by the allegations and prayer of her bill. She seeks to adjust conflicting claims, and a discovery of the appellant’s unsettled accounts, that thereby she may, in her capacity of representative or trustee, properly dispose of the trust fund to those to whom it of right belongs.

It was certainly competent for the Court, upon, an adjustment of the unsettled accounts between the appellant and appellee, in view of the character of her claim, which we have said was a lien upon the-property sold, to enforce the payment' of the unpaid purchase money by a sale of the property on which the lien rested.

Eor the reasons assigned, we cannot sanction the appellant’s first, second, and sixth points. As to the third, the only evidence of payment apparent in the record, is the recital in Exhibit A, which being but prima facie, is rebutted by the testimony taken under the commission. The fifth point is fully met by the statement in Exhibit A, the deed under which the appellant obtained his title to the property, and also by the other exhibits in the cause. We think the appellant’s fourth point, is substantially correct. “At the time the decree was passed, the cause was not ready for final decree, but should have been referred to the *585 auditor to state an account between tbe parties,” more especially as the complainant set out in her bill the cause of the appellant’s refusal to come to a settlement, because there were unsettled accounts between them, and, in the prayer of the bill, she prays for an account.

(Decided June 3rd, 1864.)

Without affirming or reversing the decree, we will sign a decree remanding the cause, that an account may be stated between the partios in conformity with the views expressed by us in this opinion.

Causa remandad for further proceedings.