Williams v. Fidelity and Dep. Co. ( 1913 )

This is a suit on an injunction bond given by the appellee in a proceeding instituted by him against those who are now the equitable plaintiffs to prevent the sale of some lots in Highlandtown, Baltimore County. An injunction was issued and on an appeal from an order overruling the demurrer to the bill of complaint filed in that case, the decree was reversed and the bill dismissed, as is shown by the case of Long Contracting Co. v. Albert, 116 Md. 111. A demurrer to an amended declaration filed in this case was sustained, and upon the plaintiffs declining to amend, a judgment for the defendants for costs was entered, and from that judgment this appeal was taken.

The declaration alleges that Messrs. Williams, Simpson and Hull were appointed trustees by the Circuit Court of Baltimore County to sell the property, which was advertised for sale by them; that the said Albert filed his bill of complaint against them, the George Long Contracting Company and The Johns Hopkins Hospital, asking that they be enjoined and restrained from selling six pieces of said property, to which bill the plaintiffs in this case demurred and the demurrer being overruled, upon appeal the order was reversed and the bill dismissed. After stating the conditions of the bond, which was given to the State of Maryland, it is alleged: "That the said writ of injunction was not prosecuted with effect nor did the said Anton J. Albert satisfy and save harmless, nor did the said Anton J. Albert pay all costs and damages that were occasioned by the issuing of said writ of injunction, whereby this case was brought. That by reason of the issuing of said injunction these plaintiffs suffered loss and damages in the depreciation of all of said properties; and suffered damages by reason of the legal complications in and notoriety of the said property and title, and the accumulating expenses upon said property — taxes, water rents and ground rents, and other expenses incidental thereto."

The appellees have suggested several grounds for the demurrer, but in the view we take of the case it will not be necessary to refer to all of them. We cannot understand upon what principle trustees appointed by a decree of a Court of Equity to sell property can recover such damages as are set out in the narr., and are quoted above. So far as the narr. discloses, these trustees were simply appointed to sell the property, and we are informed by our own records (116 Md. 111, supra), that they were so appointed under a decree to enforce mechanics' liens, but regardless of that there is nothing to suggest that the title to the property was in any way vested in them. As is well known, "In the ordinary case of a trustee appointed by decree to make sale of property, the sale is a transaction between the Court and the purchaser; the Court being the vendor, and the trustee merely the Court's agent to carry its orders into effect. The trustee has not, by virtue of his office, any title to the property decreed to be sold, or any interest in it, or in the proceeds of sale."Miller's Eq. Proc. 430. It was not necessary for the Court to issue an injunction to stop its trustees from selling, but it could have done so without an injunction. One of the grounds upon which the case in 116 Md. was decided was that the decree had not been enrolled and was subject to the control of the Court.

But the appellants cite authorities outside of this State andWallis v. Dilley, 7 Md. 237, to show that as joint obligees they were required to unite in the suit. It is not necessary to refer to authorities out of the State, as these trustees were not joint obligees, together with the other equitable plaintiffs in the bond. In Wallis v. Dilley, the bond was given to the appellees — not to the State and hence it was said by the Court: "It must be observed, that the cause of action here is joint; and that if all the plaintiffs had not united, the declaration would have been subject to demurrer. The obligation is for the payment of one sum to three parties, and they were properly joined as plaintiffs. Had they not been, the defendants might even have availed themselves of the non-joinder upon proof at the trial." The report of the case sufficiently shows that the plaintiffs in that case were the obligees, but to avoid any possible question about it we have examined the record and find that they were, and that the State was not an obligee.

Section 175 of Article 16, Code of 1912, provides that. "When a Court of Equity shall require bond, with or without security, to be given in any case, and the parties concerned therein shall be numerous, or if it shall appear for other reasons proper, the Court may take such bond in the name of the State as obligee, and the same may be sued on by any person interested, as public bonds may; and a copy, certified by the clerk of the Court, under the seal thereof, shall be received in evidence, and have the same effect as certified copies of public bonds." In Le Strange v.State, use of Roche, 58 Md. 26, JUDGE ALVEY, in speaking for the Court, of that section of the Code of 1860 corresponding with the one cited by us, in an action on an injunction bond, said: "Upon a bond thus taken, suit must be brought in the name of the State, as legal plaintiff. But the State in fact has no interest in the bond and no cause of action can arise thereon until there be a breach of the condition affecting the interest or right of some party legally concerned; and it is only those having an interest in the subject matter of the condition, and for whose benefit the bond is taken, that can put the bond in suit. The name of such party must appear in assigning the breach, and also the right and interest in respect of which he sues; and this not only that an opportunity may be afforded to the defendants of meeting and resisting the claim of the equitable plaintiff, but that the bond may not be twice subjected to suit for one and the same cause." In that case Mr. and Mrs. Roche were both enjoined, but the suit on the bond was brought in the name of the State, for the use of Mrs. Roche, by her husband and next friend.

Manifestly there was no necessity for the trustees to unite in the suit as the plaintiffs were not obligees, and suit could be maintained on the bond by any person interested. There is nothing in the narr. to suggest that all of the equitable plaintiffs had any joint interest in such damages as are claimed, if it be conceded that they are sufficiently alleged. The only possible way that the trustees might have been affected "by the depreciation of all of said properties" or "by reason of the legal complications in and notoriety of the said property and title" was that they might have received less commissions if the properties did not bring as much as they would have done, had not the injunction been issued, but, without holding that they could sue this bond for that reason, the other equitable plaintiffs had no interest in the trustees' commissions, unless it be to have them as small as possible and thereby get more for themselves. Even if all of the equitable plaintiffs, including the trustees, were equally interested in the costs (although it is not likely that the costs or any part thereof would be imposed on the trustees) there are other grounds for damages alleged that could not possibly have applied to all of them.

The appellants cited Moale v. Buchanan, 11 G. J. 314, andDenton v. Denton, 17 Md. 403, to show that trustees have such an interest in the subject-matter of the trust as entitles them to maintain an action for the protection of the same, but those were not cases of trustees merely appointed to sell by courts of equity, but the titles were in them. Of course there are cases in which it is not only the right, but may be the duty of trustees to sue, but they are not such trustees as these appellants, who had no title in the property and were simply the agents of the Court.

To show that the objection of misjoinder of parties plaintiff can be raised by demurrer it is only necessary to refer to 1Poe, section 322, where it is said: "It may be stated, as the result of the authorities upon this branch of the law, that wherever there are too many or too few plaintiffs in actions excontractu, the defendant, if the objection is apparent upon the face of the declaration, may demur," etc. Assuming that the breaches were sufficiently set out in this narr. as to some of the equitable plaintiffs, it would have been impossible for the defendants to have filed pleas that could have stood the test of demurrer, and would have brought the case to an issue, so that the claims of the several parties could have been properly litigated in the one case.

Without deeming it necessary to prolong this opinion by more particularly discussing the breaches assigned, or referring to other questions, for the reasons given we will affirm the judgment.

Judgment affirmed, the equitable plaintiffs to pay the costs.