Appold v. Prospect Building Ass'n , 1873 Md. LEXIS 21 ( 1873 )

Stewart, J.,

delivered the opinion of the Court.

From a review of the record of the proceedings in this cause, it is manifest that there has béen such irregularity, and the case is so involved, that the reversal of particular orders only would not meet the substantial ends of justice, between the parties interested. The Building Association, the mortagee that instituted the proceeding — John Spear Nicholas, the vendor of the property to the defendant — -certain creditors who have intervened — the widow and children of the defendant — the purchaser, who is interested in procuring an available title, under a valid sale, have all to some extent been shown to be affected by the proceedings; and their interests have been disclosed, although all of them are not strictly parties to the cause. Without going into a useless detail of the proceedings, it is very clear the purposes of justice require that the property should be re-sold, with a full understanding that the sale is made, disencumbered, not only of the mortgage, but the vendor’s lien of Nicholas, and any claim the widow of the defendant, and his children, may have, to the property. With this view the case will be remanded for further proceedings.

It appears that after the decree passed on the 10th of August, 1870, to foreclose the mortgage of the Building Association, and before the sale of the property on the 19th April, 1871, the defendant, Andrew J. Wilcox, departed this life, to wit, on the 15th November, 1870— that he died intestate, leaving his widow, Jane Ellen Wilcox, and two children, Julia C. and Elizabeth B. Wilcox, who were minors, his only heirs.

There is no suggestion of his death on the record, to enable the Court to take such action, if any was deepaed necessary by the Court, in this exigency.

The 7th and 8th secs, of the 16th Art. of the Code, make provision against the abatement of the decree by the death of any of the parties.

It was proper that the Court should be informed of the fact of the death of any of the parties, so that if deemed necessary from the nature of the case, that new parties, or any other appropriate proceeding should be had, the Court could determine upon suggestion of the death.

If upon such suggestion no action was taken, the intendment could be made that none was deemed necessary.

Finding no suggestion of the death of the defendant, or action of the Court in regard thereto, and no order of the Court directing the execution of the decree, the sale and ratification thereof, was irregular and improvident, and ought and will be reversed on this appeal.

It further appears that at the time of' the decree aforesaid, John Spear Nicholas had filed a bill in the same' Court, for the sale of the same property, to enforce a lien held by him, as vendor, not having parted with the legal title, and that the defendant held but the equitable interest ifi the same. These cases both pending in the same Court for the sale of the same property, might have been consolidated, so that by the action of the Court, in the exercise of its immediate authority, without the intervention of the trustees, the property might have been sent into the market, for public sale, disencumbered of both the legal and equitable claims of Nicholas and the defendant respectively, and thus command a fair price, and the purchaser be enabled to acquire a valid title to the property, disencumbered of such liens.

(Decided 21st February, 1873.)

The widow of the defendant, in such case, being entitled to her dower out of the proceeds, as the property will be sold freed from any claim she may have.

The orders ratifying the sale, and the auditor’s report will be reversed, and the cause remanded for further proceedings.

Orders of ratification of sale and auditor’s report reversed, and cause remanded for further proceedings.