American Security & Trust Co. v. Muse , 4 App. D.C. 12 ( 1894 )

Mr. Justice Morris

delivered the opinion of the Court:

The question presented by the appeal is, whether the court had jurisdiction to decree the sale which it did decree in the case. It is not claimed that the title is in any way imperfect, except in so far as the court may have been without jurisdiction.

Except for the enforcement of trusts, either express or implied, for the satisfaction of debts, and possibly under exceptional circumstances for the preservation of the property, a court of equity has no power to decree the sale of real estate, unless such power is conferred upon it by statute. There is no general power in equity to order the conversion of realty into personalty upon the ground merely that it would be for the advantage of all the parties in interest that there should be such conversion.

Such was the rule in the equity jurisprudence of England, as well as in that of Maryland, from which ours is derived. And the statutory grants of authority in that regard are few in number. There seems to be no more than four cases provided for: 1st. Where infants and persons of feeble and unsound mind are seized of real estate as tenants in common or joint tenants with other persons (act of Maryland of 1785, Chap. 72, Sec. 12); 2d. When a guardian deems it to be for the interest of his ward that the real estate of the latter should be sold (act of Congress of March 3, 1843, Sec. 1, 5 Stat. 621, Rev. Stat. of U. S. for D. C., Secs. 957 to 968); 3d. Por the purpose of conveying a good title, when there is a life tenancy and a contingent limitation over to such issue of one or more of the tenants for life as shall be living at the death of their parent or parents, and the life tenant applies for a sale (act of Congress of August 18, 1856, Chap. 153, 11 Stat. 118, Rev. Stat. of U. S. for D. C., Secs. 969 to 973); 4th. For the purpose of partition between joint tenants or tenants in common (act of Congress of August 35, 1876, 19 Stat. 202, Richardson’s Supplement, Vol. 1, 121). The suit in the present case is brought under the third head, and the act of Congress of August 18,1856; and it is not controverted that if it cannot be maintained under that act it cannot be maintained at all.

That act, as it appears in the Revised Statutes, is as follows:

“Sec. 969. Where real estate is limited by deed or will to one or more for life or lives, with a contingent limitation over to such issue of one or more of the tenants for life as shall be living at the death of their parent or parents, and the deed or will does not prohibit a sale, the Supreme Court of the District may, upon the application of the tenants for life, and if the court shall be of the opinion that it is expedient to do so, order a sale of such estate, and decree to the purchaser an absolute and complete title in fee simple.

“ Sec. 970. Application for the sale of such real estate shall be by bill in equity, verified by the oath of the party or parties, in which all the facts shall be distinctly set forth, upon the existence of which it is claimed to be expedient that, such sale shall be decreed, which facts shall be proven by competent testimony.

“Sec. 971. Such of the issue contemplated by the limitation as shall be in existence at the time of the application for the sale of the real estate shall be made parties defendant to the bill, and if minors, by guardian ad litem, together with all who would take the estate in case the limitation over should never vest; and such of the parties defendant as shall be of the age of fourteen years or more shall answer in proper person on oath.

“Sec. 972. And all evidence shall be taken upon notice to the parties and to the guardian ad litem.

“Sec. 973. The proceeds of sale of such real estate shall be held under the control and subject to the order of the court and shall be invested, under its order and supervision, upon real and personal security or in Government securities; and the same shall to all intents and purposes be deemed real estate and stand in the place of the real estate from the sale of which such proceeds have arisen, and as such real estate be subject to the limitations of the deed or will.”

The peculiar phraseology of this enactment, it is well known, is due to the fact that it was intended to meet the exigencies of a special case, that of the will of John Gadsby, who had died a short time before the statute was passed, leaving in his will the precise limitation of his real estate which is here specified. Whether it would not have been wiser to enlarge the terms of the statute and to give authority to the courts of equity to deal similarly with all cases of contingent remainders, is a question for the legislature, not for the courts. We are confined to the terms of the statute, as they stand, and may neither restrict them by a narrow, or enlarge them by a .liberal construction. We have only to determine in the present case whether the contingent limitation created by the will of Lindsay Muse falls within the purview of the statute. For it is plain that not all contingent limitations, but only a special class of contingent limitations, was intended to be governed by the statute.

Now it seems to us that there is a very great difference between the limitation here and that covered by the statute. The limitation provided for in the statute is to the issue of the life tenant living at his or her death; and it would seem that the contingency could not ultimately be determined and the estate absolutely become vested until the death of the life tenant. In the will now before us, the limitation is contingent upon the marriage of the testator’s daughter and her having issue from such marriage; and the question of their survivorship of her does not arise. The contingency is determined by the marriage and the birth of issue; and upon such birth of issue the estate becomes vested. The vesting of the estate does not here depend upon survival, although, of course, as in all other similar cases, the right of possession and enjoyment does not accrue until the death of the life tenant.

There being, therefore, in our opinion, very great reason to construe the limitation in the present case as being different from the limitation mentioned in the statute, we think the occasion arises for the application of the rule of equity that a purchaser should not be required to take a title that may be the subject thereafter of litigation. Fry on Specific Performance states the rule as follows:

“ The old practice of the court of chancery in all cases of dispute as to the title of the estate sold, was to decide either for or against the validity of the title, and either to compel the purchaser to take it as good, or to dismiss the bill on the score of its being bad. But the case of Marlow v. Smith, 2 P. Wms. 198, before Jekyll, M. R., followed by Shapland v. Smith, 1 Bro. C. C. 75, before Lord Thurlow, established the practice of allowing a class of titles, which, without affirming them to be bad, the court considered so doubtful as that it would not compel a purchaser to take them.”

And this rule, notwithstanding the doubts of Lord Eldon on the subject, is now the recognized rule of equity, so affirmed by the House of Lords. Parker v. Tootal, 11 H. L. C. 158, by Lord Westbury. The rule has been, very generally adopted in the United States. Story’s Eq. Jur., Sec. 749; Butts v. Andrews, 136 Mass. 221 ; Spring v. Sandford, 7 Paige, 550 ; Bumberger v. Clippinger, 5 W. & S. 311; Gans v. Renshaw, 2 Penn. St. 34; Hepburn v. Auld, 5 Cranch, 262; Bank v. Hagner, 1 Pet. 455.

It is with very great regret that we feel constrained to declare against the affirmance of a sale so beneficial in its terms to all the parties in interest as is the sale made in this case. But where such doubts are raised against the title as are raised here, and which, whether well or ill-founded, are not unreasonable and frivolous, and where there is no one before the court of the class of those who would be entitled to the remainder declared by the testator, it is not at all clear that those in remainder would be bound by any decree that would be made in the case, and it would not be equitable, in our opinion, to require the purchaser to consummate the sale.

We must, therefore, reverse the decree of the court below, and remand the cause to that court with directions to discharge the rule against the purchaser. Under the circumstances, we deem it just that each party should pay his own costs on the appeal.