Tomlinson's Lessee v. Devore , 1 Gill 345 ( 1843 )

Spence, J.,

delivered the opinion of this court.

The statement of facts agreed to, and upon which the court below instructed the jury in this case, presents for the revision of this court, a question of great importance and interest.

Questions of jurisdiction in relation to courts must always be important, because they are questions which ascertain the limits of judicial power; and in this case, it is one of peculiar interest, arising from the character of the infirmity of the individual, which, it is insisted, exempts him from the jurisdiction of the courts of law.

The argument of the appellant’s counsel conceded that the courts of common law had jurisdiction in Maryland in cases involving the rights of lunatics, unless they had been ousted of their jurisdiction by the act of 1785, ch. 72, and the sup - plements thereto; and had this concession been withholden, the authorities, both in this country and England, are conclusive.

The question then is, does the act of 1785, ch. 72, or any supplement thereto, oust the courts of law of jurisdiction in this case? After a careful examination of the act of 1785, ch. 72, we may venture to affirm that there is no language employed, or combination of words used, which can be construed to divest the common law courts of jurisdiction in cases involving the rights of lunatics, or raising even a strong implication of the fact.

The act of 1785, chap. 72, contains no expression of the same signification or import, as that used in the Statute of Mew York; 1 M. K. Laws, 147; in relation to which latter statute, Chancellor Kent says: “the fit and proper remedy for the creditor of a lunatic, is in this court, and not by an action at law. The. commitment, by statute, of the care of the lunatic and his estate, to this court, and the power given to it to sell the real estate, shows that this is the proper tribunal for the creditor to resort to.” Had the Chancellor’s opinion stopped here, the fair conclusion would be, that the Chancellor had concurrent jurisdiction, under this statute, with the common law courts.

Chancellor Kent, in the same case, Brasher vs. Cortland, 2 John. Ch. Ca. 403, in commenting on the 6th sec. of the same statute, uses the following language: “But this last provision is important in another view, it goes absolutely to interdict the remedy at law, by prohibiting a sale of the real estate under execution.” The negative expression in the Statute of Mew York, the Chancellor construes to confer exclusive jurisdiction, and without this provision, the irresistible inference is, that his jurisdiction would be concurrent with the courts of common law. The Act of Assembly of Maryland provides, “that the Chancellor shall have full power and authority, in all cases, to superintend, direct and govern the affairs and concerns of persons who are or may be lunatic or idiots, both as to the care of their persons and estate, and may appoint a committee, See., and that if it will be for the benefit and advantage of the estate of such persons (idiots or lunatics,) to sell a part of the real estate to pay their debts, &c.” Thus the 6th sec. of the aqt of 1785, is very similar to the Stat. of New York, and may, with great fairness, be construed in cases involving the rights and interest of lunatics to confer jurisdiction upon the Court of Chancery in Maryland; but as there is no express ouster of the jurisdiction of the courts of common law, we are driven to the conclusion, that they have concurrent jurisdiction with the Court of Chancery.

The doctrine is clearly settled by a long train of concurrent decisions, that to divest courts of general jurisdiction of their jurisdiction, express terms to that end must be employed in the statute, and that it cannot be effected, unless by express terms, or by necessary implication. Vide Rex vs. Chaseley, 2 Bur. 1040; Heath & Room, 2 Hill's R. 42—ex parte.

The view which we have taken of the question raised upon the first point, reaches, controls and determines all the other questions in this cause. The judgments being good at law, and no objection made to the executions, or sale made under them, in point of form or substance, it follows as a necessary consequence, that the title passed by the sale to the purchaser, and that the court properly instructed the jury to find for the defendant.

We forbear to present either arguments or authorities to prove the jealous vigilance with which courts of justice guard and maintain the titles of purchasers, acquired under judicial sales, as there is no portion of the law, in regard to which the adjudications have gone farther, or are more uniform and con~ elusive. JUDGMENT AFFIRMED.