Hardy v. Summers , 10 G. & J. 316 ( 1838 )

Dorsey, Judge,

delivered the opinion of the court.

It is insisted that, the grounds for equitable relief, as set forth in the bill of complaint, were, heretofore, and finally adjudicated by Prince George’s county court in the proceedings therein, under the act of descents, for the division.of the real estate of Jonathan Hardy, between Talburtt, the grantee of Anne Hardy, and Mary Summers and her husband; and that such adjudication is a bar to the relief now prayed'for.

The case set forth in the complainant’s bill is one, in which a court of equity only, is competent to grant the appropriate relief.!

If the facts, stated in the bill, be true, the relief asked for, could not be denied. Whether these facts be true or false, it is the province of a Court of Chancery to decide upon proofs regularly before it, in a cause conducted according to the forms of equity proceedings.

The complainants,, before their equitable claims could be definitely decided, had a right to a discovery on oath by the defendants,, and to have- all the proofs on which those claims depended, taken in due form and submitted to the decision of a court of equity, and, if aggrieved by its decision, to have it reviewed in the highest appellate tribunal of the State, upon a full record of all the proofs and proceedings in the cause. Of these rights Prince George’s county court could not deprive them, by the summary exercise of the powers specially delegated to it under the act of descents. To permit it to do so, would be an unheard of innovation on the long established forms of litigation in equity; would deprive the complainants of their right to purge the consciences of the defendants, or to bring their entire case, upon its merits, for trial before an appellate tribunal, or to have any adjudication thereon by the Court of Appeals. Under the act of descents, the filing the petition, and appointment of the commissioners, is an ex parte proceeding, and the proceedings of the county court in determining on the confirmation or rejection of the return of the commissioners, are summary in their nature, and no law requires, nor is it customary for the court to direct, that the proofs exhibited by the parties, should be reduced to writing, or in any way introduced into the record of the proceedings before it. An appeal under such circumstances could not avail the appellant, even if permitted, in. the court of last resort.

But there is another reason why the Chancery court should not be thus abruptly arrested in the prosecution of this suit on the ground of a prior adjudication in Prince George’s county court; and that is, that if the allegations in the bill be true, the alleged prior adjudication is a nullity, being a, proceeding co-ram non judice. The act of descents only giving power to the county courts to divide the real estate of a deceased person, where the parties entitled to the deceased’s estate cannot agree upon the division thereof. The principle of res adjuicata, therefore, on the present appeal, interposes no obstacle to the continuance of the injunction issued in this cause.

The next in its proper order, of the reasons assigned for the reversal of the Chancellor’s orders continuing the injunction is, because the agreement set out in the bill being made with Mary Summers, a married woman, is not binding upon Anne Hardy. The agreement, as charged in the bill and not denied in the answer, was made in the presence of the husband and assented to by him, and according to the statements in the bill, as admitted or not denied in the answers, the agreement was consummated by an actual division of the real estate of the deceased between the sisters, each taking possession, and holding according to such division, for at least fourteen years. The complainants still hold under such division the portion signed them; Anne held her share till she conveyed to Talburtt, and after such conveyance he took possession of Anne’s part, and offered to execute conveyances between himself and the complainants, conformably to the partition which had been made. We know of no principle, either of law or equity, under the circumstances, in which it was made, that would invalidate the agreement, simply on the ground of the coverture of one of the parties. As authorities for a contrary doctrine, see Baxter vs. Smith, 6 Binney 427. Barnsfather and another, Executor of Moffat, against Jordan and another, 2 Douglas 452. Thos. Co. Tit. 153, and Bowyer vs. Peake, 2 Freeman's Rep. 215. To refuse relief in the case before us on this ground only, would be against all equity and conscience.

The next reason, assigned for the reversal of the Chancellor’s order is, that the defendant Talburtt is a bona fide purchaser without notice of the agreement entered into by Anne and her sister, or the proceedings under it, and as such, must be protected in a court of equity, against such agreement and proceedings. But this defence if properly pleaded, could not avail the defendant Talburtt. The actual possession of the complainants, according to the agreement and division under it, is a sufficient intimation of their rights, to have put Talburtt upon an inquiry into their nature, and failing to make it, he is in equity vested with all the consequences of a knowledge of their title.

The only remaining question to be considered is, has the equity of the bill been sworn away by the statements in the answers. We are clearly of opinion that it has not; most of the material facts constituting the complainants’ equity, have been admitted, or not denied by the answers, As far as the statements contained in the answers are responsive to the charges in the bill, the complainants’ equity remains wholly unimpaired. The matters in avoidance, relied on in the answers, which, when put in issue, if proved, might strip the complainants of all claim to relief, not being responsive to the bill, cannot in this stage of the cause be relied on by the defendant, as grounds for the dissolution of the injunction.

The orders of the Chancellor continuing the injunction is affirmed with costs,

orders affirmed.