Benjamin Lee vs. Administrators of Boteler and Belt, 12 G. & J. 323

Chambees, J., delivered the opinion of the court. The claim upon which this suit is founded, like that in the preceding case, against the same appellees by John Brooks, was originally due from Walter B. Brooke, and was filed in the case of Lucy S. Brooke against him. With the exception of a very few and unimportant particulars, it is subject to the same considerations, and must be decided by the same principles. Besides the defences common to the two cases, the appellees have in this case urged— 1st. That the appellant has resorted to a different mode of proceeding, and 2ndly.

That no order for the payment of the claim was ever passed in the cause of Lucy S. Brooke vs. W. B. Brooke. The appellant’s claim arises on a mortgage executed to him by W. B. Brooke, junior in date to the mortgage to Lucy S. Brooke, and for the same land. Pending the proceeding, and, as it would seem, before the decree in the case of Lucy S. Brooke, the appellant filed a bill to J uly term of Prince George’s county court against W. B.

Brooke, to sell the mortgaged property, and obtained a decree at the same term, it is said — for amongst other evidences on this record, of a want of proper and usual attention to the preparation and arrangement of the proceedings, it is quite a curious as it certainly is a novel fact, that the decree is neither signed by one of the .judges of the court, nor has it any date upon its face by which to determine when it passed. The decree in the suit by Lucy S.

Brooke, on the elder mortgage, was obtained on the 27th July, in the same year, appointing a different trustee, who doubtless proceeded promptly to execute it, as the sale by him was actually made on the 9th September, following. It is, then, perfectly manifest, that the appellant did not derive any benefit from the proceeding instituted by him, and it would be as much at variance with the plain demands of justice and equity, as it is against the principles of the law, and the decisions of this court, to make the fruitless attempt to obtain relief by one process, a bar to the pursuit of another.

It is in many instances perfectly consistent to pursue two different remedies, when either may avail, taking care only to obtain the fruits of one — much more allowable is it to resort to a second remedy, when, by a circumstance not arising out of any act or omission of the party prosecuting, the first remedy attempted becomes unavailing. Nor do we think the second objection noticed well founded. It certainly would have been more in conformity to the approved practice, to have accompanied the order of confirmation with an order to pay the claims which were thereby allowed.

It may be, that the peculiar circumstances of the case created some difficulty in respect to the proper person by whom the payment should be made. The decree required the trustee to sell for cash, and bring the proceeds into court.

Another decree or order had dismissed the first trustee and appointed a second — each of the trustees had acknowledged the receipt of a part of the proceeds of sale — various orders had been passed directing the application of the funds in the hands of the trustees, and so much difficulty and confusion was produced by the failure of the first trustee to account for the proceeds of sale, as his duty required, that it is now made a grave question in the argument of this cause, whether the funds received by the first trustee were applicable to the paysncnt of appellant’s claim.

That question has been disposed of in the opinions expressed in the previous case, and it is now therefore made to appear, that the order would have been rightfully made upon E. M. Dorsey, the first trustee. But we cannot agree, that the failure so to make it, affected the validity of the claim. The judgment of the Chancery Court is effectually pronounced on a claim by confirming the auditor’s report, and if no steps are taken to revoke or overrule such judgment, it is as conclusive as if it had been accompanied with an order on the trustee to pay the amount.

After such adjudication upon the the rights of the party, an order to pay, would at any time be passed as a matter of course.

The court, for the reasons assigned in the previous case, do not regard the other grounds of objection sufficient to defeat the appellant’s right to recover, and will therefore sign a decree which shall, pursuant to the agreement .in this cause, remand the case to the Chancery Court, that an account may be taken of the assets of the original defendants, and such other proceedings be had as may be necessary to give to the appellant the relief to which he is entitled. decree reversed with costs, and cause remanded.