Bowles v. Moller, Inc. , 163 Md. 670 ( 1933 )

The case should be disposed of, I think, by an affirmance of the order appealed from rather than by a dismissal of the appeal; and the distinction seems worth making in this instance because disposition in the one way or the other represents the answer to an important question of power in the courts.

The sale referred to as having rendered the case moot was the culmination of a proceeding, the whole of which, including the sale, was attacked as an unfair, improper, maneuver of the plaintiff, who is itself the purchaser and distributee of the proceeds. While completion of the sale pending the appeal was not stayed, that fact did not, of course, affect the right of appeal from the dismissal of the interveners' petition. "The right thus conferred is unconditional and does not depend upon the filing of an appeal bond." Shirk v. Soper, 144 Md. 269, 283, 124 A. 911, 916. The right of the interveners to their appeal and review of the order appealed from, and to reversal of the order, if found erroneous, remained as full and unaffected by the carrying out of the sale and distribution as if a bond had been filed, unless the case should be one of those in which carrying out orders and decrees pending appeals renders relief from error, if any, no longer feasible; and I think it is not one of those.

If, pending an appeal, without stay, from refusal to enjoin a cutting down of trees, the trees are felled, judicial action could not put the trees up again; it would be nugatory; and an appeal seeking the relief might be dismissed as having now no possible object. It is for the same reason that when, pending an appeal without stay of execution, a sale has been completed to a bona fide purchaser, one not involved in any impropriety charged, the sale cannot be set aside upon establishment of the fact of impropriety in bringing it about, and error in the order appealed from. Even in such cases the courts are not always rendered powerless, because often the proceeds of sale remain susceptible of distribution in a manner that will remedy the impropriety and error, and the case must then be disposed of on the merits with that possibility of remedy in view, and not by dismissal of the appeal. Chase v. McDonald, 7 H. J. 199; Wampler v. Wolfinger, 13 Md. 337, 348;Lenderking v. Rosenthal, 63 Md. 28, 38; Garritee v. Popplein,73 Md. 322, 324, 20 A. 1070; Raith v. Bldg. Loan Assn.,140 Md. 542, 545, 118 A. 67; Herman v. Bldg. Loan Assn.,145 Md. 480, 490, 125 A. 814, 817; Bowers v. Soper, 148 Md. 695, 698, 130 A. 330. But, as is stated in these cases just cited, there is no obstacle to undoing a completed sale made, not to a bonafide purchaser, but to a party shown to have itself brought about the sale unfairly. "But even though the appeal bond be not seasonably filed, the rule is not available to protect a title vested under a purchase which has been unfairly accomplished."Herman v. Bldg. Loan Assn., supra. When the ground of attack is impropriety or unfairness in bringing about the sale, as in this case, it is a matter of indifference whether execution has or has not been stayed, for the courts may undo the sale as effectually as they might prevent one not yet completed. Finding the wrong, then, with the parties to it before them and no third parties to be considered, they can right that wrong at whatever stage it may have reached.

I see no basis for distinguishing the sale and distribution in this case from others attacked as having been unfairly accomplished by purchasers, and think, therefore, that the court needs to pass on the merits of the attack exactly as it would if an appeal bond had been filed. The order is shown to have been free from error, and for that reason should be affirmed.