Summary
Appeal from the Circuit Court of Baltimore City.
This appeal was brought before the Court on the original papers, under the 25th section of the 5th Article of the Code of Public General Laws.
The original bill in this cause was filed in 1860.
It charged amongst other things, that under the last will and testament of David Barnum, late of Baltimore city, deceased, the appellants had become entitled to undivided shares or parts of certain lots of ground in the said city of Baltimore, and the erections thereon, described in said last will and testament, as the City Hotel buildings and grounds; and of certain furniture and other chattels attached thereto and used therewith, and to shares or proportions of the rents, issues and profits resulting from the use and employment of the premises aforesaid, according to their rights in said premises, and from the dates of accrual thereof, as specifically set forth in said bill; but that by some arrangement between the executors of the said testator, and persons named in his said last will and testament as trustees for certain purposes therein expressed, Zenus Barnum and Andrew McLaughlin had taken jDossession of the said premises and had used and employed, and were still using and employing the same as and for the purposes of a City Hotel, and had thence derived, and were still deriving large profits, and although they were aware' of the rights and pretentions of the appellants, they had refused and still refused to account with them, for the profits so as aforesaid realized, or to permit the appellants in any wise to share in the use and enjoyment of said premises. The bill, further charged that the said premises were incapable of advantageous division amongst the parties interested therein, and prayed that the same might be sold- under the direction of the Court and an account be taken of the rents and profits derived by the said Zenus Barnum and Andrew McLaughlin, by the use and employment thereof and that the appellants might have paid over to them, their just shares or proportions of the proceeds of sale, and of the rents and profits realized therefrom. After answers had been put in and other proceedings had, the case was heard by the Circuit Court and the bill was dismissed. Upon an appeal to this Court the decree of the Court below was reversed and the cause remanded for further proceedings. Andrew McLaughlin and Zenus Barnum, two of the original defendants, having died while the cause was pending in this Court, upon its return to the Circuit Court, a bill of revivor and supplement was filed making new parties and praying for a sale of the “ City Hotel buildings and grounds as now constituted, with all the furniture attached thereto;” for an account of the “profits” of those who had carried on the business of hotel keeping in said City Hotel, and for the appointment of a receiver “ to take charge of said premises and manage the same.” The motion for a x’eceiver was set dowxx for hearing on the 24th of June, 1867. On the 1st of July" following the contesting defexxdants (now appellees) filed their answer, in which they insisted that the former decision of this Coixrt referred only to the hotel aixd grouxxds as they had existed at the time of David Barnum’s death, and that this Court had not decided that the appellants wex-e entitled to shares thereof, xxor to an aceoxuxt of rents and profits; that the hotel since his death, had beexx carried on by Andrew McLaughlin and Zenus Barnum, and their representatives, for their own accouxxt; that the old hotel had been reixovated, etc., aixd contiguous lots purchased and the hotel exteixded over them; that they were only liable for the rexxt of the old part, which they had rented in good faith from the trustees of Barnum; that the purchased contiguity and improvements tlxex’eon, solely enured and belonged to them; and they claimed compensatioix for impx'ovements on the old, and denied the right of the appellants to the account prayed for, and that the widow of Zenus Barnum (who had married the appellee Gordon) was unfit to conduct the said hotel to advantage; but averred that during the time, that she as trustee by appointment under proceedings in the Circuit Court, had had charge of it, she had managed it judiciously and properly. On the 8th and 9th of July, 1867, the application for the appointment of a receiver was argued by the solicitors of the respective parties, and submitted for decision. On the last named day, the appellants filed their petition charging that the said Annie Gordon and her husband were in the actual possession of said property and that she was carrying on the same as a public hotel, and receiving large sums from, the profits thereof; that they or one of them had then on hand a large amount, and were about to distribute it under the proceedings above referred to, ignoring the rights of the appellants as established by this Court; that her bond, as such trustee, was inadequate; and that by reason of her marriage, the security was lessened and she less qualified to execute the trust; that the motion for a receiver was under advisement; that the appellants would have a large claim against the said rents and profits; and prayed for an injunction restraining such distribution; for an account and for the bringing of said money into Court. The Court, instead of acting on this petition, sat it down for hearing on the 15th of September, more than two months from the day of its submission. The appellants not acquiescing in this order, renewed their motion for an injunction. To this petition on the 4th of October, Gordon and wife filed their answer, in which they state that in another and distinct equity case, she had been appointed trustee to execute the trusts of the will of the late Andrew McLaughlin, and in that capacity and in no other she had conducted said hotel; and that the passage of the order prayed would involve her in inconsistent duties; denied that the opinion of this Court established the right of the appellants to any part of the fund supposed to be in the hands of the respondents; asserted that tlie profits of the hotel were merged with other property, to which the appellants had no title, and that the respondents could not separate them; that the security given by the respondent Annie, independently of her own sufficiency, was of the most ample character; and they adopted also the defences set up in their answer to the bill. On the 5th of October, no injunction having been issued, and the Court not acting in any way thereon, an appeal was taken. Afterwards on the 29th of the same month, the Circuit Court passed two orders — one refusing to appoint a receiver, and the other refusing to grant an injunction; and from these orders an appeal was taken by the appellants. '
Pending said appeal, at the instance of the appellants the original papers were transmitted to this Court under the provisions of the 25 th section of Article 5, of the Code of Public General Laws, whereupon a motion was made by the appellees to dismiss the appeal thus brought to the consideration of the Court.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
