Hardester v. Sharretts , 84 Md. 146 ( 1896 )

Fowler, J.,

delivered the opinion of the Court.

The question which was intended to be presented by this appeal and the only one which was argued by counsel is whether the order of publication passed the twenty-second of October, 1891, in a certain cause in which E. A. Merry-man was plaintiff and Henrietta A. E. Walker and others were defendants, so far complied with the provisions of the Code, Art. 16, section 112, as-to bind the plaintiff The bill in the case just mentioned was filed for the purpose of obtaining a decree for the sale of the interests of the unknown heirs of the children of a certain Benjamin Hard-ester, and it was attempted to bind them by an order of publication as provided by said section one hundred and twelve. The bill in this case was filed by the plaintiff upon the theory that the decree in the first named case is absolutely void as to him, and that consequently his interest, being one undivided eighth in the land sold thereunder to the defendant, did not pass thereby. The defendant on the other hand claims to have purchased the land in question free from any outstanding interest in the plaintiff or anybody else, and in his answer to the bill he sets up and relies upon the order of publication. The answer was treated as a demurrer, and appears to have been considered below as raising the question of the sufficiency of the order of publication to bind the defendant. Although the question is presented in an irregular manner, yet, inasmuch as counsel expressed a willingness to waive all irregularities in the mode of its presentation in order to have it decided, we will briefly state our reasons for the view we entertain.

To show that the order of publication does not comply with the statute, it seems only necessary to point out the one defect which is most glaring. As we have said the bill was filed against the unknown heirs of the children of Benjamin Hardester, deceased, and, of course, the purpose of the order of publication was to give notice of the suit to them, and to warn them to appear and defend. But instead of doing this, the children of Abraham Hardester were notified and warned to appear. It is true, perhaps, as suggested, that this erroneous use of names was an inadvertence of the draughtsman of the order, but whether this be so or not, the result was the same. The order became impossible of execution, for Henry S. Hardester, the plaintiff, the only child of Abraham Hardester, being himself alive, could have no heirs in the legal sense in which that word was used in the order. But we do not think it necessary to further point out the difficulties which could or might arise from the admitted error, and we are quite willing to concede that, perhaps, by careful reading and study the true intent and meaning of the order in question might have been ascertained. But to secure the benefit of the provisions of the Code, authorizing constructive notice in cases like this, there must be a strict compliance with their requirements. In the case of Galpin v. Page, 18 Wall. 350, it is said, that when a State substitutes constructive service of process against a non-resident in the place of personal citation, every principle of justice exacts a strict 'compliance with the statutory provisions. This Court has used language equally as explicit upon the same subject. “ Strict compliance with the statute is demanded.” Dorsey v. Dorsey, 30 Md. 534. The case just cited was relied on by the appellee to support the proposition that the publication of the order having been shown, as full notice to the defendant would be implied as though he had received actual and personal citation. Such was held to be the effect of the orders of publication in Dorsey v. Dorsey, supra, and Dorsey v. Thompson, 37 Md. 43. But especial care was taken in the former case to say that such was the effect of the order only upon “ a strict compliance with the requisites of the statutes,” and in the latter case that the presumption of notice followed the due publication of the orders. The case of White v. McClellan, 62 Md. 347, has no application here. The statute there construed was the Act of 1836, ch. 249, relating to mortgages in Baltimore City, and the alleged defect consisted in omitting the middle name of the plaintiff from the notice of sale. Without adverting to other distinctions, it is sufficient to say that there was no mistake, as here, in the designation or description of the person sought to be bound. The plaintiff in this case is a resident of this State, but justice requires that residents as well as non-residents must have a right to demand a strict compliance with the statutory requirements.

(Decided June 18th, 1896.)

Order reversed.