Tomlinson v. McKaig , 5 Gill 256 ( 1847 )

Archer, C. J.,

delivered the opinion of this court.

By the decree of Alleghany county court as a court of equity, passed on 30th October, 1836, certain lands in the proceedings mentioned were decreed to be sold. The trustee appointed to sell the same reported his sale to the court, which sale was ratified nisi, and at October term of said court was finally ratified and confirmed. The purchaser by his last will and testament devised the lands thus purchased to the complainants in this cause, as they allege, who pray that the trustee may be decreed to convey to the devisees under the will of the purchaser. The decree which it is thus proposed to be carried out, stands unappealed from, and unreversed.

This application is resisted on various grounds, which we shall proceed briefly to examine.

First, it is contended that the court which passed the decree had no jurisdiction of the case in which they did decree, and that if this be true, the court below were right in refusing to ■execute the decree.

If the hill filed in the cause in which the decree passed be .considered as founded on the act of 1785, ch. 72, the jurisdiction of the court certainly could not be sustained, because there is no allegation in the bill that it would be for the interest and advantage of the infants and of the other persons concerned, that the lands described in the bill should be sold. Such an averment is necessary to give the court jurisdiction under this act.

The enquiry will then be whether the jurisdiction of the court is maintainable under the act of 1820, ch. 191. That act declares in its 8th section that if the parties entitled to an intestate's estate cannot agree upon the division thereof, or in case any person entitled to any part be a minor, an application shall be made to the county court of the county where the estate lies, when it becomes the duty of the court to appoint commissioners, who having qualified as prescribed by the act, are to perform the duties particularly set forth in the act, and if their judgment shall be confirmed by the county court, then rules are prescribed for the heirs to take the property by election, and if all refuse the property is to be sold, and the proceeds distributed among those entitled thereto.

By this act no allegation is necessary in the application to the court, that proceedings under this act would be for the benefit and advantage of the parties concerned; but the action of the court is demanded upon the allegation that the party has died intestate of such an estate as is described by the act, that the parties entitled to the intestate estate cannot agree upon a division thereof, or that some of the parties are minors.

That a formal application to the court may be made by bill to the court as a court of equity has been heretofore decided by this court.

The allegation in this bill conforms to the act of Assembly just adverted to, it avers that Jesse Tomlinson died intestate of lands held in fee simple by him, that they descended to his heirs-at-law who are particularly specified, two of whom are minors, and the bill prays general relief, and such other and further proceedings as may be necessary.

The above allegations, in our judgment, brought the case within the provisions of this act, and gave the court jurisdiction of the cause. The complainants were entitled under the prayer for general relief, and further proceedings, to such action of the court and decree, as the case made in the bill would by law entitle them to. That they did not specifically pray for a partition, or for the appointment of commissioners to divide and value the land, is immaterial; as far as it relates to the question of jurisdiction, their prayer for general relief, and further proceedings, was sufficient. Nor is it material to the case that the complainants assumed that the land was incapable of division, and that there was a specific prayer for the appointment of a trustee to sell the lands. The one may have been an inappropriate averment, and the. other an inappropriate prayer, for such a case; but they will not vitiate averments which confer jurisdiction, or affect a prayer for general relief, which always justifies the ultimate action of the court thereupon in pursuance of the case made by the bill.

The court, however, in its action upon this bill, did not pursue the provisions pointed out by the act of 1820, ch. 191, and its proceedings therein are no doubt erroneous. But the concession of this fact does not touch the question under consideration. It is the allegations in the bill which confer jurisdiction, and which are to determine the power of the court. If the steps taken by the court subsequent to the filing of the bill are not justified by law, or if they decree without proof or upon insufficient proof, that is error in the exercise of jurisdiction,but does not indicate a want of jurisdiction.

It has been properly said that the true test of jurisdiction will in all cases be found in the determination of the question whether a demurrer will lie to a bill.

If this be so, neither the erroneous action of the court after the filing of the bill, nor defective proof could affect the question of jurisdiction.

In this view of the subject it is unnecessary for us to determine, whether if the county court had no jurisdiction to pass the original decree, it would be competent for the same court to refuse an application to execute such decree. Again, it is urged that if the court had jurisdiction to decree, still on an application to carry out the decree, the court will look to all the circumstances attending the sale, and will refuse to execute ■the decree if they find that fraud or surprise exists. Before the ratification of a sale made by authority of the Chancery court, all objections to a sale are open for consideration, and the sale will be set aside upon the proof of error, mistake, misunderstanding or misrepresentation as to the terms or manner of the sale. Before ratification, the sale must appear to be in all respects fair and proper, or it cannot receive the sanction of the court. But it is equally true that after the sale has been confirmed, and after the term has passed and the proceedings are considered as enrolled, the court possesses no power over its decree to annul the same, except by bill of review for error apparent on the face of the decree, or for some new matter discovered since the decree, or by an original bill to annul the same for fraud. Sometimes bills are necessary to be filed to cari’y into execution decrees, and the bill and proceedings now before us are of that description. In such cases the law appears to be as settled by the later English cases, both in Chancery and on appeal, that the law of the decree is not examinable ; and that the law of the decree will be enforced unless delayed or stayed for a rehearing of the former cause if not enrolled, or if enrolled, for a bill of review, Milford Plead:— and the cases there cited.

If this be the law as applicable to such a case, then the decree appealed from must be erroneous, as the court below has dismissed the bill of the complainants without examining the complainants’ right to stand in the place of the purchaser, and in assuming the error and invalidity of the decree which is sought to be enforced.

That a right exists on the part of the infant defendants to the original bill, to question its regularity and validity, either by a bill of review, or an original bill to vacate the same for fraud, cannot be doubted; and we think the court below should have stayed the execution of the decree until an opportunity might be had of testing the validity of the original decree by an original bill, to be filed by the defendants for that purpose.

The regularity of the proceedings after the filing of the bill in the original case, has not been attempted to be vindicated. Not one of the steps demanded by the act of 1820, ch. 191, have been taken, no order or decree for a commission was passed, of consequence no judgment of commissioners was had, or confirmation of such judgment; no privilege of election was extended to the heirs-at-law, without which the final decree of the court could not have been the legal exercise of jurisdiction.

That such matters would have been the subject of a bill of review in an English Court of Chancery, if a decree had there been passed under such a law, could not be questioned. In that tribunal the proceedings in the cause are recited in the decree, and such errors would, therefore, have appeared on the face of the decree, and would have constituted errors which the court would have noticed on a bill of review.

In this State the English practice of stating the proceedings in the decree has not prevailed, and to make the bill of review as effective as it is in the English Court of Chancery, the proceedings in the cause should be the subject of revision on a bill of review in the same manner as if they were stated on the face of the decree. Unless such an examination was allowable, few cases would occur in which bills of review could effect the object intended to be attained by them; for as the proceedings are not stated on the face of the decree, few errors which would on such a bill be the subject of review in the English courts could be reached. We accordingly find in 8 Peters, 128, the Supreme Court reversed a decree on a bill of review passed by the circuit court for the county of Washington, in the District of Columbia, where the same practice of framing decrees exists as here; and in the opinion -of the court on the revei’sal of the decree, several errors were adverted to which did not appear in the body of the decree.

In the case of Hollingsworth and McDonald, 2 H. & J. 238, this court say that nothing appears in the proceedings on the first bill, to support the position that there is error apparent on the decree, and the court advert to the fact, that certain deeds which were the foundation of the proceedings then before the court, were not made a part of the proceedings in the original suit, clearly intimating, as we think, that had such deeds appeared in the proceedings, they could be noticed on a bill of review, although they had not been adverted to in the decree.

The same principles are sanctioned by this court in the case of Hunter vs. Hatton and wife, where the court say, that certain errors existing in an equity proceeding might be examinable by a bill of review. These errors were such as according to our practice would not appear in the decree.

In Birch & Scott, 1 G. & J., this court announce the rule to be that a bill of review will only lie for errors apparent on the face of the decree, or for some new matter discovered since the decree. In thus saying, this court but announce the English rule. They were not called upon to apply it to our peculiar practice in framing decrees. We can alone reap the beneficial fruits of the English rule by causing the bill of review to reach such proceedings in the cause as would, according to the English practice, appear on the face of the decree.

We are accordingly of opinion, that the decree of Jlllegkany county court be reversed; and that the cause be remanded to that court, that by an order of said court to be passed on the application of the parties, time be given to the defendants, within which they shall be at liberty to file an original bill to set aside the decree for fraud, and to the infants, within which they may file a bill of review7 to vacate the decree for errors appearing on the face of the decree, and that in the meantime all proceedings in the present suit be stayed; and should either of the said bills be filed within the time allowed by the county court for that purpose, that proceedings in this suit be further stayed until the action of the court shall be had on the bill so filed.

DERCEE REVERSED WITH COSTS, AND CAUSE REMANDED.