Billingslea v. Baldwin

Practice in Equitt: Trustee’s Sale, Ratification or Rejection of. — A trustee, under a decree in equity, having made sale of a remainder in fee, expectant upon a life-estate, reported the sale and obtained an order of ratification nisi; the purchaser, however, for nearly four years thereafter, failed to comply with the terms of sale, paying nothing on the purchase, and declaring that he would not take the land unless the title was guaranteed by the trustee; it also appeared that the purchaser was without the ostensible means of payment; that he left the State of Maryland, and remained absent until after the death of the tenant for life, and the consequent enhancement in value of the property; when he returned, and withholding the fact of the death of the tenant for life from the trustee, paid the purchase money and claimed .a ratification of the sale. On exceptions filed, objecting to the final ratification of the sale — Held; That there is nothing in the circumstances of the case requiring a Court of Equity to confirm the inchoate contract between its agent, the trustee, and the supposed purchaser, and that the sale should be set aside. Sale of Beal Estate of Parties Holding Jointly, Whether by Descent or Purchase; Jurisdiction in Equity: Acts of 1785, ch. 72, 1820, ch. 191, 1831, ch. 311, and 1839, ch. 23, Construed. — A bill in equity, for the sale of the reversionary interest in real estate, alleged: that the complainants were “seized in fee-simple, jointly with the defendants, of the reversion of a parcel of land devised to W. B. for life,” &c.; “ that the said lands are incapable of division, and it would be advantageous to all parties concerned to have the said lands sold;” and that “the complainants, with their joint owners, claim said land as the heirs-at-law of E. B., deceased, to whom the reversion in fee was devised,” &c.; and that certain of the defendants were infants; and prayed for a decree for the sale of the lands, and for general relief. Held: 1st. That under the allegations of the bill, the jurisdiction of the Court must be exercised under, and the proceedings regulated'by, the provisions of the Act of 1785, ch. 72, and its supplements. 2nd. That the words “joint interest,” in see. 12 of the Act of 1785, ch. 72, are not tobe construed technically as meaning only an estate in “joint tenancy,” hut includes estates in “co-parcenary;” — interests held jointly with other persons, within the meaning of the statute. 3rd. That the Acts of 1831, ch. 311, and 1839, ch. 23, are in pari materia with the Act of 1785, ch. 72; these Acts are to be construed together, and confer upon Courts of Chancery the power to decree the sale of any interest in lands, when it shall appear for the interest of all parties holding the same jointly, whether they hold by descent or by purchase. 4th. That the proceedings in this case being instituted under and in conformity - with the provisions of the Act of 1785, ch. 72, the Court had the jurisdiction and authority to pass the original decree, upon proof of the allegations of the bill, without pursuing the course prescribed by the Act of 1820, ch. 191. 5th. That the Act of 1820, ch. 191, is not in pari materia with the Act of 1785, ch. 72; these Acts are altogether distinct from .each other, and the jurisdiction and proceedings under them, respectively, are wholly distinct and dissimilar. Bill of Review: Pleading asd Practice in Equity: Decree, Rescission oe, — The petition for a bill of review of the proceedings aboye referred to, and for the rescission of the decree under which the aforesaid sale was made, set forth, among other reasons for the relief prayed: That “one of the original petitioners was a minor, who had come of age since the decree, and within nine months from the date of the petition,” and that “the estate belonged to the petitioners as heirs-at-law of JS. B., who died intestate thereof,” and that “the petitioners were entitled to the benefit of the Act to direct descents, of which, by said decree, they are deprived. The bill of review repeats these allegations, which were not controverted, but substantially established by the proof, from which it also appeared that the witness who, in the original proceeding, proved “that it would be to the advantage of the parties to sell,” &c., intended to prove, only, that it would be advantageous to sell the entire feo-simple, and not the reversionary interest of the parties, and would have then so testified, had he understood the interrogatory. Heud: That the bill of review in this case, and the proof adduced in its support, do not show any sufficient grounds for rescinding the decree, either by Leason of irregularity on the face of the proceedings, or on account of any newly discovered facts.

Appeal from fhe Equity Side of the Circuit Court for Harford county. On the 19th day of December 1843, during the life of Walter Billingslea, Sr., the devisee for life, under the will of Walter Billingslea, deceased, of certain real estate mentioned in the will, Pue and wife filed their bill on the Equity Side of Harford County Court, against John T. Baldwin and wife, and others, children of Elisha Bull, deceased, alleging that the complainants and defendants are jointly entitled to the reversion in the lands now in the possession of Walter Billingslea, Sr., the devisee for life; that the same are incapable of division, and it would be advantageous to all parties concerned to have the said lands sold; that they claim the same as heirs-at-law of Elisha Bull, deceased; that the defendants, Mary C. and Sarah Ann Bull, are infants, and praying a decree for the sale of the lands, and general relief. ■ Answers were filed by the adult defendants, admitting, the allegations and consenting to the sale, and answers for the infants, by their guardians, were filed in the usual forrnb On the 3rd of February 1849, a decree for a sale was passed, and a trustee appointed. The trustee, on the 9th of July 1849, reported that he had sold the lands (being the reversion belonging to the heirs of Elisha Bull, deceased, after the life-estate of Walter Billingslea, Sr.,) to Walter Billingslea, (the son,) for $695, payable according to the terms of the decree, -with which the purchaser agreed to comply by memorandum in writing. On the same day an order of ratification nisi was passed, but no further proceedings were had until the 30th of June 1853, when the defendants filed objections to the ratification of the sale on several grounds, viz: 1st. Because the decree was prematurely and erroneously passed. 2nd. The defendants, Baldwin and wife, were never duly summoned, never appeared or answered, or authorized any one to appear and answer for them, and their answers were filed by mistake, and without their knowledge and consent, 3rd. Because it was not for the interest and advantage of the parties in interest, or any of them, that the lands should be sold during the life of the tenant for life, and the sale was greatly below and not exceeding one-sixth or seventh of the actual value of the land. 4th. Because the purchaser abandoned the sale, and refused to comply with the terms of sale, and both the object-ants and purchaser understood and believed that the sale had been cancelled, and no sale would be made until after the death of the tenant for life. 5th. Because, since the death of the tenant for life, which has recently occurred, and by which the value of the interest decreed to be sold has been greatly enhanced, the purchaser has fraudulently procured the sale reported by the trustee to be renewed and revived at the same price, notwithstanding he had long before abandoned and relinquished the same. 6th. Because some of the objectants had no sufficient notice of the time and place of sale, and the proceedings are in other respects imperfect and erroneous. For which reasons the objectants prayed the sale might be set aside, and that they might have leave to file a bill of review, to have the decree for the sale reconsidered and va^ eated, as well for errors apparent on the face of the proceedings, as on the facts which have come to their knowledge since the date of the decree. On the 9th of September 1853, the sanie objectants filed a petition for leave to file a bill of review, in which itfis averred that Baldwin and wife were never summoned, and never appeared or answered, or authorised any one to appear for them, and none of the petitioners had any notice of the taking of testimony in the cause, nor did they know, until very recently, that any testimony had been taken; that recently, and within the last three months, and not before, it became known to Baldwin and wife that they had been made parties to the cause, and that an answer had been filed in their name, admitting the allegations of the bill, though they could at any time have proven the most material allegation in the bill was not true, and that it was not for the interest of the parties to have the land sold; that within the last two or three months they have ascertained there was no testimony, in fact, taken to prove that the sale would be advantageous to the parties, but that there are errors in the commissioner’s return, and the witnesses who were examined only proved that a sale of the entire estate, including the life-estate, would be advantageous, but that a sale of the reversionary interest, alone, would be very injurious and prejudicial to the parties entitled; that the decree was obtained by surprise and mistake; that the cause was submitted for decree by the complainants and their counsel, without the knowledge or consent of the petitioners ; and that these and other facts which have recently come to their knowledge, within the last two or three months, and of which they could not have the benefit at the date of the decree, would, if known to the Court, have prevented the passage of the decree; that they are, moreover, advised that the decree and the proceedings under which it was passed, are irregular and erroneous, as appears upon their face: 1st. Because the Court, by which the decree was passed, had no jurisdiction to decree the sale of the reversionary title, subject to the life-estate. 2nd. Because the said estate belonged to the petitioners, as heirs-at-law of Elisha Bull, who died intestate thereof, and they were entitled to the ¡benefit of the Act to direct descents, of which they are deprived by the decree. And 3rd. Because the proceedings are in other respects irregular and erroneous. Upon this petition leave to file a bill of review was granted, and on the llth of October 1853, the hill was filed by the defendants against the complainants in the original hill, not mating either the trustee or the purchaser a party thereto. In this hill the allegation of the original hill, that it would he advantageous for all parties concerned to have the land sold, is denied to be true, and the complainants especially deny that it was, or that any judicious person ever believed it was for the interest of the parties to have the land sold subject to the life-estate, and this would have been proved if they had ever had an opportunity to do so j that it was manifestly for their interest that the land should not he sold before it had vested in possession, and that the Court had no power or jurisdiction to decree the sale of the remainder. It contains the further allegation, by Street, that he never did consent, nor was he willing for a decree for a sale, nor did he or his wife ever authorize or employ any solicitor or other person to appear for them, or mate any agreements, or do any act in the premises in their name and on their behalf, and only recently, and long since the decree, to wit: within the last six months, has it come to their knowledge that they have been represented by a solicitor, whose appearance and acts in the case, they aver to have been entered by some mistake; and Street avers that throughout the whole proceedings he understood and believed that Messrs. Scott and Eernandis were the joint solicitors of the complainants^ and not of the defendants, or of any of them: that the decree is erroneous, hecanse it directs the sale of a remainder, and because the estate decreed to be sold was one to which the parties were entitled by descent, and no valuation of the land was made by commissioners, and no opportunity given any of the heirs to take the land and pay the others their proportionate shares; and because the proceedings were irregular and defective, and not in accordance with the Acts of Assembly in such case made and provided; that at the last May Term of this Court, Baldwin and wife ascertained that they were made by the proceedings to appear to have been parties thereto, &c., but that no subpoena was ever issued for them to the county in which they resided, and to the best of their knowledge and belief, they never were summoned, and never did appear or answer, or employ or authorize any solicitor to appear or answer for them, or make any agreements for them in the case, and that the answer and agreements appearing to have been filed, were so filed without their knowledge, authority or consent; that they had no notice of the taking of testimony, and that they* have recently ascertained that two witnesses were examined, one of whom would have proved that the sale would be very injurious to them, but the interrogatory on that point was not put to him, and that the other witness misunderstood the question, and only meant to testify that a sale of the whole estate would be advantageous and advisable, and in support of these allegations the affidavits of the two witnesses are filed as exhibits with the bill; that the decree was obtained and passed by mistake and surprise, and that they are greatly injured thereby; and prayed that it be reversed, and the original bill dismissed. Hoskins, in his affidavit, filed as an exhibit to this bill, swears that he knows the lands, and thinks they would sell at public sale for over $5,000, but to sell them subject to the life-estate, would necessarily cause a great sacrifice, and he thinks that during the life of the tenant for life, it must have been apparent to every judicious man who knew the property, that it would be very prejudicial to the tenants in remainder to sell their estate at public auction, subject to the life-estate, and that his opinion is not founded on the fact that the life-tenant is since dead, but upon the fact that persons can seldom, if ever, be found to purchase such titles, except at prices far below the real value; that the land was not deteriorating in value, and if it had been, that fact would have caused a still greater sacrifice in a sale subject to a life-estate; that the land has been greatly increasing in value for the last ten years, and that the heirs of Elisha Bull were in easy circumstances, so that there was no necessity for sacrificing their property by selling the land before their title had vested in possession. Ady swears he did not understand he was questioned whether it would be more to the interest of the parties to sell their reversionary title, or to wait until the death of the life-tenant, and that he only meant to testify that in his opinion it would be more advantageous to the parties entitled to sell the land (meaning the entire estate in fee-simple) than for the parties to hold it jointly or attempt to divide it; that the farm could- not be expected to sell subject to a life-estate, without great sacrifice, and if he had understood the question, he must have so answered on his examination. The answer of Pue and wife to this bill, was filed on the 14th of November 1853, in which, after making certain admissions and averments not important to be here noticed, they submitted their case for such decree as might be proper. Upon this bill and answer the cause was submitted for a decree, and on the 30th of May 1854, a decree was passed vacating and annulling the original decree of 1849. On the 1st of June 1854, the day after the passage of the above decree, the purchaser filed his petition, in which he avers all the proceedings to be regular; that due notice of the sale was given by publication, according to the terms of the decree; that he had bought the land, paid his purchase money, and deems himself entitled to the'land; that the objections to the sale have not been decided on, and he has always been and is now ready to contest their validity; that in a case to which he was not a party, and of which he had no notice, the original decree has been annulled, by which his interests have been set aside and disregarded; and he prays that the annulling decree he opened, so as not to affect his rights as purchaser. On the same day (1st June 1854) the trustee, H. D. Ear-nandis, Esq., filed his answer to the objections to the sale, in which he states, that as far as his knowledge extends, the proceedings in the cause were proper, regular and legal; that all the parties were duly returned summoned by the sheriff; that the answer of Street and wife was signed by themselves, and the answer of the infant defendants taken by a guardian regularly appointed, John E. Bull, their step father; that the answer of Baldwin and wife appears to be signed by him as their solicitor, and he believes he had satisfactory authority to sign the same, as, without such, he would not have volunteered to do so; that he saw Baldwin after the sale, and certainly to the time of filing the objections to the sale, never heard any objections to his so acting; that he sold the land at public sale, after advertisement, in accordance with the decree, fairly and for the best price he could obtain, and at- the time deemed it satisfactory ; that he never heard the price complained of during the life of the tenant for life; that the purchaser did not comply at the time with the terms of sale, having had, as the trustee was informed, the opinion of distinguished counsel, that the heirs of Elisha Bull had no title to the premises, hut that the trustee never did cancel or agree to cancel said sale; that proceedings to compel him were not had, because, in consultation with the complainant, Pue, it was determined that it would he advisable to let the matter stand as it was until it would he ascertained that on a re-sale a sufficient price could he had to pay the costs of the proceedings, which it was not supposed could he enforced from the purchaser; that the purchaser did propose to relinquish or to transfer, at the original price, said lands, which was communicated to Pue, but not assented to; that tbe sale was made on tbe 7th of May 1849, was confirmed nisi on tbe 9tb of July 1849, and tbe order nisi, running to tbe 20tb of August 1849, was duly published in tbe Harford Gazette, for three successive weeks, before said 20th of August 1849, and no objections were filed until tbe 30tb of June 1863; that in May or June 1853, tbe purchaser called on tbe trustee and professed bis willingness to comply with tbe terms of sale, and the trustee received part, and a few days afterwards tbe whole, of tbe purchase money; that be did not at that time know of tbe death of tbe tenant for life, but in a few days after tbe first payment, Pue called on him, informed him of tbe death of tbe life-tenant, and requested him not to receive tbe purchase mo'ney, as the land would sell for a good deal more, but be bad already received part, and did not suppose be bad any discretion in tbe matter; that tbe objection filed to tbe ratification, on tbe 30th of June 1853, gave tbe trustee tbe first intimation of their purport. This answer was sworn to by tbe trustee. On tbe 14th of December 1854, an agreement was filed, by which it was agreed that tbe annulling decree should be opened, and that it stand-for bearing with tbe objections to tbe sale, to be beard together at tbe next term. On tbe 26th of February 1857, a supplemental bill of review was filed by tbe same parties, for tbe purpose of making tbe purchaser a party, in which the complainants reiterate all tbe allegations of tbe original bill of review, and again aver and charge them to be true. On tbe 6th of September 1858, depositions taken before, a justice of tbe peace, by both parties, were filed in tbe cause, and on tbe same day an agreement was filed that tbe purchaser be made a party to tbe bill of review, and that the affidavits filed by tbe respective parties be read as evidence, to have tbe same effect as if regularly taken under a commission, and submitting the cause for final order of Court. On the 21st of September 1858, the purchaser filed exceptions to the evidence of the complainants, not for the mode in which it was taken, but for the matter and substance thereof, and because the same is insufficient and inadmissible, if it had been taken under a commission for that purpose regularly issued. On the 5th of August 1862, Judge Price filed an opinion in the case, in which he simply says: “It seems to me that the cases of Tomlinson vs. McKaig, 5 Gill, 256, and Cheney vs. Tipton, 11 Q. &J., 255, are decisive of the present case. There has been no compliance with the provisions of the Act of 1820, ch. 191, and for this reason I am of opinion that the decree should be vacated, and the sale set aside;” and on the next day he passed an order setting the sale aside, and also signed a decree vacating and annulling the original decree of 1849. On the 18th of August 1862, the purchaser appealed from both, the order and the decree, and filed his appeal bond, which was duly approved. The questions presented by the record are: 1st. Is there any thing on the face of the proceedings, or' has any thing occurred since the decree, to warrant setting it aside on a bill of review? 2nd. Is there any thing connected with the sale to invalidate it? 1st. There is nothing on the face of the proceedings that is irregular, unless, indeed, the praying for the sale or partition of a remainder bé error. A remainder is an interest in land, and all interests in lands may be sold under the Act of 1185, ch. 12, sec. 12. This Act does not say “where lands are held jointly by infants,” &c., but “where an interest in lands is so held.” The Act of 1831; ch. 311, sec. 7, authorizes the sale of any interest or estate, or benefit held jointly or in common, or otherwise, concurrently by adults. This is supplementary to the Act of 1785. • The Act of 1839, ch. 23, authorizes the sale of any lands or real estate held jointly by any persons. The Act of 1847, ch. 150, recognizes the right to decree a sale of. reversionary interests. These Acts being in pari materia, are to be taken together, and they give the power to sell any interest held ” jointly. ° Why should not a joint remainder be sold, as well as a joint estate in possession? The words of the law are broad enough to include them, and there is the same reason why a joint holder of a remainder should have his part turned into money, as, if it were an estate, into possession; and, in many cases, a stronger reason, because a remainder must necessarily be unproductive. Then, if the words of the law and its reason both include remainders and all interests in lands, why exclude them? The idea that the word jointly only includes joint tenants, and does not apply to parceners, is too technical to be true; such a construction would, perhaps, nullify the Act of 1785, for as joint tenants could only be created by purchase, all holding by descent would be excluded. The true rule, deducible from all these Acts, is, that whenever the parties are entitled to have partition, either by common law or by statute, a sale may be decreed, if more advantageous to the parties. If we are right in our views, there is no error on the face of the proceedings. Then what newly discovered matter is there? None that we can perceive. The rule is, that any thing the party might have ascertained by due diligence, will not avail him, and there is nothing alleged that Baldwin, by ordinary en-quiry, might not have ascertained, and he certainly had sufficient notice to put him on inquiry. But it is alleged Baldwin and Street bad no notice of the decree; as to Street, this, when it was ascertained he and his wife had signed their answer, was prudently abandoned, Baldwin and wife were returned summoned, by the sheriff, and their answer filed by H. 13. Earnandis, who says he must have been authorized, or he would not have done it, and his appearance for them is conclusive upon them. Hench vs. Todhmder, 10 G. & J., 358. And the return of the sheriff is prima facie proof of service. State vs. Lawson, 2 Gill, 62. Keedy vs. Newcomer, 1 Md. Bep., 241. Bather vs. Sedwich, 5 Id., 281. That he and his wife were summoned, is matter of record, and whether he lived in Harford county, or just over the line, in Baltimore county, is wholly immaterial. No matter where he lived, if the sheriff found him in this county, it was his duty to summon him. Baldwin and wife, for any thing that appears in the proceedings, then lived in Harford county. But whether they did or not, the sheriff could summon them, if he found them here; and he has returned that he did, and his return is made under oath. A sheriff cannot arrest a person out of the county where the party lives, under the Act of 1801, but this does not apply to summons from Chancery. Any person except the complainant can serve a subpoena. See Alexander’s Oh. Brae., 18. But there is abundant proof that Baldwin had notice of the decree; the affidavit of Mrs, Bull, if admissible, shows the matter was frequently talked about. The affidavit of Jacob Warn shows Baldwin knew of the sale, and gives the reasons for the objections to the sale, to wit, the tenant for life had unexpectedly died, which increased the value of the property. But there is no reason why Baldwin and wife should not be bound by their answer; it is put in as answers generally are in undisputed cases, and it is clear neither Baldwin, Street nor Pue ever designed resisting the sale till after the death of the tenant for life, then they all resisted it; and there is reason to believe that Street would have denied his answer, if he bad not signed it bimself. See Munmlthuysen vs. Dorset, 2 H. é a., 374. The sale was advertised, and made publicly at Belair, when the order of ratification was published; Baldwin lived within seven or eight'miles of Belair, and was in the habit of visiting his mother-in-law, Mrs. Bull, who lived within three miles of Belair; he saw the trustee after the sale. Under all these circumstances, it is impossible he should not have had notice, at least such notice as should have put him on inquiry. Respecting Baldwin and wife’s answer, there is no proof to invalidate that. Tf the mere denial of the party, either from not recollecting or otherwise, that he did not authorize a solicitor to appear, would invalidate a decree four years after it was passed, how many decrees might be vacated? The fact that the complainant’s and defendants’ counsel were generally partners in their practice, could make no difference in undisputed cases. Partnership between lawyers does not so unite their persons as to make them one. Either could undertake business separately, and, by consent, would take the opposite sides of a case, and would be bound to be faithful to their respective clients. A power of attorney is not necessary to authorize the appearance of an attorney in this State, and the party is bound by the acts of his attorney. Hench vs. Todlmnter, 7 S. & J., 275. And if this were not so, no one could tell when his judgment or decree was valid, or whether it might not be vacated at any time by some of the defendants coming in and denying the authority of their attorney. If such an objection could be made in this case, it would be made in a case where the purchaser had made expensive improvements; and, in fact, all manner of injustice might be done, and done to persons who had no means of knowing any thing of the relations between the parties and their attorneys, except what is shown by the record. In this case if the purchaser looked at the record — and, as he was a stranger to tbe decree, it is ail be was required to do, — be there saw that every thing was regular and in the usual form, and be bad a right to consider tbe parties to that suit bound by tbe acts of tbe attorneys who appeared for them. Assuming, then, that Baldwin and wife are bound by their answer, there is nothing in the proceedings to affect tbe decree. A Court of Equity is not a Court of limited jurisdiction, it has vast powers exclusive of those conferred by statute. In Dorsey vs. Gilbert, 11 G. & J., 81, tbe Court say: “It was the undoubted power of tbe Court of Chancery, before onr Acts of Assembly, to convert tbe real estate of infants into money.” And in Young vs. Frost, 1 Md. Bep., 398, tbe Court say, citing Judge Story: “In cases of partition, a Court of Equity founds itself on its general jurisdiction,” &c.; so that it has large powers independent of even legislation. It could sell tbe real estate of infants before the Act of 1185. It can certainly sell any interest held by adults under tbe Tib section of tbe Act of 1831, ch. 311. Under its general powers and tbe Acts of Assembly, it can sell any interest of infants. These powers confer jurisdiction in this case clearly. A Court of Equity has a right to apply all its powers to a case, whether derived from statute or otherwise. 2nd. Is there any unfairness in tbe sale? Tbe Courts lean to tbe support of trustees’ sales, as -will be seen by tbe authorities cited at tbe end of these notes. Tbe sale was publicly made, after due notice, and fairly made, and for a fair price. There is no allegation that tbe sale was not advertised regularly, or was not fairly made, and tbe trustees’ answer shows that all was regular and. fair. Tbe affidavits of value all relate to tbe unincumbered value; no witness says the sale of tbe reversion was too low, and the affidavit of George Mecbien, and tbe conduct of tbe parties, Pue and Street and Baldwin, show tbe price was fair, and perhaps high, for they never complained of the price for four years after tbe sale, nor until tbe life-estate fell in. Tbe extravagant estimates put on tbe land are not deemed material to tbe questions in tbis case, but when we learn from tbe affidavit of J. Mecbien that tbe land was of tbe poorest quality, some of it broken and rough, without fences or buildings, and without timber, and with not more wood than would supply fuel for a few years, we cannot perceive what these witnesses base their opinions of its value upon. Tbe counsel on tbe other side estimates it at $6,000 ; I am authorized by Billingslea, the purchaser, to say that any one may have the land for less than half that sum, although he has put considerable improvements on it. Another objection to the decree and sale is, that the witness, Ady, who proved it would be advantageous to sell, was mistaken, and Ady, himself, says he was mistaken. This objection goes to the decree, not to the sale. Can such an objection be urged against a decree four years after its passage? If so, no decree is final. In this case all the parties of full age consent to the decree, and the proof is only necessary because there are infants, and as the parties of full age have identically the same interest as the infants, the Court would not require many witnesses to prove what the parties of full age admitted in their answers. But the witnesses who say that a sale was not beneficial, found their opinion, as will be seen from their affidavits, on tbe theory, that no estate in remainder ought to be sold. If the remainder men were ever so pressed for money, «till, in the opinion of these witnesses, the remainder ought not to be sold, because if they would wait long enough, the estate might be sold unencumbered. Sometimes, every common sense man knows, that it is more advantageous to sell a remainder, which is unproductive, than to keep it. How often is land sold subject to dower, or to curtesy ? According to these witnesses, such sales should never be made, because if the party would wait, he could sell the land for more, by selling it unencumbered. Sometimes tbe remainder man would wait fifty years. But in this case it is fair to presume, that Pue and Street understood their interests, and they thought that it was advantageous to all concerned, to sell, rather than to wait for Billingslea’s death, when from his health and constitution, he was as likely to live twenty years as any body. The purchaser never abandoned the sale, and would not abandon it. The trustee never intimated he would be discharged. The purchaser, as his answer shows, and he is confirmed by C. Bussey, was doubtful of his title, having been informed by counsel, that this remainder did not pass under W. Billingslea’s will to Elisha Bull, and thought he would demand a warranty of the trustee. Events subsequent to the sale, ought not to affect its validity. Cunningham vs. Schley, 6 Gill, 208. Gibbs vs. Cunningham, 1 Md. Ch. Dec., 44. Banlc vs. Martin <& Travers, 3 Id., 224. The purchaser was bound by the trustee’s report, and the purchaser being bound, the trustee was bound:— one could not be bound without the other. For these reasons it is submitted, that the bill of review ought to be dismissed, and the sale confirmed. The authorities cited in support of the aforegoing are appended, as well as the authorities cited by the complainants. Cases cited by Purchaser:' — Harris vs. Harris, 6 G. & J., 111. The Chancellor, under the Act of 1785, may order a sale of an executory devise. The opinion of the Court seems to be based on the word interest, in the Act. The Court italicises that word. Burh vs. Scott, 1 G. & J., 424. A bill of review must be for some matter appearing upon the face of the decree, or for some new matter discovered since the decree. Story’s Eg. PI., secs. 404, 411. Danl. Ch. Pr., 1*726, 1727. Mew-shaw vs. Mewshaw, 2 Md. Chan. Dec., 12, was a case of a bill of sale of lands under the Act of 1831, though objected that the proceedings should have been under the Act to direct descents. Johnson vs. Dorsey, 7 Gill, 269, and Cunningham vs. Schley, 6 Gill, 208, show how trustees’ sales will be sustained. See, also, Tomlinson vs. McKaig, 5 Gill, 258, Cheyney vs. Tipton, 11 G. Óc J., 255; and 3 Gill, 327. 1st. That the original decree was erroneous, and was properly vacated. — The title as stated in the complainant’s bill makes a case under the Act to direct descents, 1820, ch. 191. And the preliminary proceedings required by the Act were omitted. Cheyney. vs. Tipton, 11 G. & J., 255. Tomlin-son vs. McKaig, 5 Gill, 256. Phelps vs. Stewart, 17 Md. Pep., 239. 2nd. That the court had no power to decree the sale of the estate in remainder, without including the preceding life estate. The land may be sold, but the title must be conveyed without encumbrance. The title must not be divided. The Act of 1785, ch. 72, sec. 12, was manifestly not intended to apply to such a case. The Act of 1816, ch. 154, sec. 13, authorises the Court to decree sales of estates of infants in reversion or remainder, but it and its supplements prescribe particular mode of proceeding, to prevent abuses and improper sales, — which have not been followed. The Acts of 1785, ch. 72, sec. 12; 1816, ch. 154, sec. 13; 1818, ch. 133, sec. 2; 1831, ch. 311, sects. 6 and 7; 1839, ch. 24; 1820, ch. 191; must be taken in pari materia, but force must be given to each, except where they clash. The Act of 1785, refers to estates in possession. Partition cannot be made of estates in remainder or reversion. 1816, uses the word “possessed;” 1831, the words “concurrently seized of any lands.” Infants’ estates are to be sold according to the provisions of 1816 and 1818, the estates of adults under the Act of 1785. The Act of 1839, explains 1785 and 1831. 3rd. That the return of the commission to take testimony is defective and void, and the commission in other respects is. so imperfectly and irregularly executed, that the evi-donee taken under it was inadmissible, and cannot be used as evidence to support fcbe decree. Story’s Eq. PI., 404, 411 and 412. Scott vs. Burch, 1 G. (It J., 423. 4th. That it was not in fact ‘ ‘ for the interest of all the parties concerned,” that the reversion should be sold, and the evidence relied on to prove that it was, was taken by mistake. 5th. That Baldwin and wife were not summoned. And as to the other defendants, who were entitled — being all infants or married women, — no laches can be imputed to them, and their rights will be protected by the Court. Bar-ret vs. Oliver, 7 Gill & John., 207. U. S. BTe. vs. Bilchie, 8 Peters, 128. Knight vs. Brononer, 14 Md. Pep., 70. There is no limitation to a bill of review, but it may be filed at any time within which an appeal or writ of error may be taken, — by analogy, — except in cases of surprise, fraud or mistake. Palmer & Hamilton, vs. Oliver, 11 G. & J., 143. U. S. Banhvs. Ritchie, 8 Peters, 128. In support of the order setting aside the sale to the appellant, the appellee will contend: 1st. That if the decree is vacated, the sale made under it must share the same fate, especially as it had never been ratified, and could not be considered an absolute sale until confirmed by the court. Tomlinson vs McKaig, 5 Gill, 275. U. S. Bh. vs. Ritchie, 8 Peters, 128. Wagner vs. Cohen-, 6 Gill, 99, 102. 2nd. That the price at which the land was sold, was so grossly inadequate, as to furnish prima facie evidence that the sale ought not to be ratified. And in connection with the' other circumstances of the case it was sufficient to justify the final order passed by the court. Tomlinson vs. McKaig, 5 Gill, 273. Johnson vs. Dorsey, 7 GUI, 282, 292. Duncan vs. Dodd, 2 Paige, 99. Gross inadequacy of price is evidence of want of discretion. Sug. on Vend., 249. 3rd. That the sale was not made according to the terms prescribed by the decree, and was therefore more liable to be set aside than if the terms prescribed had been adhered to. 8 Peters, 146. Cohen vs. Wagner, 6 Gill, 252. Tyson vs. Miclde, 2 Gill, 384» 4. That the appellant having refused to comply with the terms of sale, and held himself in a position in which it could not be enforced against him for four years, and until after the value of the property was greatly enhanced, — was not entitled after that to insist upon its ratification, life-Oay vs. Oa/rrington, 1 MbLean’s G. O. It., 59. 6 Gill, 102 and 252. 2 Gill, 384, 2 Story Eg., seg. 736. Geiger vs. Green, 4 Gill, 472. Stoddart vs. Bowie, 5 Md.B&p., 18, 35. Livingston vs. The Penn. Iron Oo., 2 Paige, 391. 5. That the appellant, when he came to pay the purchase money in 1853, practiced a fraud on the trustee by concealing the fact that his father, the tenant for life, was dead, and the value of the estate was thereby greatly increased. Story’s Eg. Goultervs. Dawson, 2 Bl. Oh., 204. 'Andrews vs. Scotton, 2 Bl. Oh., 639, 644. . The sheriff’s return is not prima facie of service of a writ against one not in his bailiwick.