Ridgely v. Iglehart , 6 G. & J. 49 ( 1833 )

Buchanan, Ch. J.,

delivered the opinion of the court.

Reuben Ridgely, one of the heirs at law of William Ridgely, deceased, having purchased from the commissioners appointed under the act of 1820, ch. 191, relative to descents, the real estate of William Ridgely, which would not admit of division, and having given his bond to the State pursuant to the provisions of the act, conditioned for the payment to the other heirs of their respective proportions of the purchase money, the land was afterwards sold under a judgment at law obtained against him upon his bond, for the payment of the portion of one of the heirs; and this bill was filed by another of the heirs of William Ridgely, against the purchaser alone under the judgment, to subject the same land to sale for the payment of his proportion, and was dismissed by the Chancellor.

On the part of the appellee it has been contended, that there is no cause of action, no order appearing by the court, in which the proceedings were had for a division of the estate, designating the proportions of the amount for which the estate was sold, to whieh the heirs were respectively entitled. But that objection is rather too technical and attenuated.

It is not very clear, that the words in the 22d sec. of the act of 1820, ch. 191, “agreeably to the order of the court,” were intended to relate to the proportions, to which each of the heirs might be entitled; but may have been intended to be applied to the giving a bond to the State, instead of one to each of the heirs, which, by the same section is authorised to be done under the direction of the court.

But admitting it to be otherwise, such an order may have been made by the court,- and would be proper evidence before the auditor in stating an account between the parties; and if no such order Was given, no injury could accrue to the party, since the procéedings under the petition for a division of the estate shows the amount for which the land was sold, and to be divided between the several heirs. And if the expenses allowed by the county court, attending the proceedings under the petition, were paid by the appellee, he would be allowed for them in an account taken by the auditor.

Chancery would never suffer the mere absence of such an order, as is supposed to be necessary, to work so serious a mischief, as the destruction of the obligation of the bond, where no injury can arise to the party from the omission of it.

The supposition that the State should have been made a party has no better foundation. The State has no manner of interest in the matter. A suit at law upon the bond would necessarily be in the name of the State for the use of the party prosecuting the action. But by the act of Assembly under which the bond was given, it is declared to be a lien upon the land; and this is a proceeding not upon the bond, but a proceeding in rem to enforce the lien created by the act.

It is however, contended, that the action should have been at law upon the bond, and that the remedy at law must be exhausted before recourse can be had to the land. But that is entirely a mistake; the purchase money for which the bond was given, is made by the act of Assembly a specific lien on the land; as much so as if a mortgage had been given on the land for the money intended tp be secured by the bond ; and a party entitled to a proportion of that money, has his election to prosecute either his remedy at law upon the bond, or to go into equity to enforce his lien on the land; as much so as in the ordinary case of a bond for the payment of money, accompanied by a mortgage of land as a collateral security.

And the circumstance, that in this case the land has passed into the hands of a sub-purchaser, makes no difference; he purchased it subject to the lien, and may have regulated his price accordingly. A court of Chancery will not turn from its door, a party coming to have enforced his lien so expressly created, merely to drive him to proceedings at law against a security; which may prove fruitless, and lead to vexatious and useless circuity of action.

The solicitor for the appellee has invoked the aid of Richardson vs. Jones, 3 Gill and Johns. 163, to sustain him on the ground upon which he has planted himself. But if he had examined that case with his accustomed accuracy, he would have found it to advance no such principle. The doctrine of that case is, that when a purchaser at a trustee’s sale has completed his purchase, and complied with the terms of sale by giving his bond as required by the order of sale, the payment of it cannot be enforced in Chancery in a summary way by an order to bring the money into court; nor by a bill in Chancery to enforce the specific performance of it, as a mere bond for the payment of money. But that the remedy on the bond as such is by a suit at law. But there is no intimation that, in such a case as the present, there may not be proceedings in Chancery against the land to enforce the equitable lien, without first going into law on the bond.

Ths objection to the want of proper parties is better taken. It is a general rule in Chancery, that all persons having an interest in the subject matter of the suit, should be brought before the court, in order that a termination may be put to all controversy in relation to their different rights by one suit, if it can be done.

In this case all the heirs of William, Ridgely, deceased, are interested, and should be made parties, to prevent deception and embarrassment to purchasers, by the extent of the liens being made known by the pleadings; and also to prevent a sacrifice piecemeal of the property, by sale after sale, under separate and distinct proceedings by the several heirs, with a great and ruinous accumulation of costs; and that there may be a decree upon the whole ease, as far as it can be done, settling the rights of all who are interested.

THE CAUSE THEREFORE WILL BE REMANDED TO THE COURT OF CHANCERY.