Nancy Calwell, et al. vs. Henry Boyer, 8 G. & J. 136

Dorsey, Judge, delivered the opinion of the court. The reversal of the decree in this case has been claimed on five distinct grounds. The first of which is, because .there is no proof of the material allegations in the bill. The alleged defects in the testimony are first, that there is n© proof whatever of the sale to Taggart, one of the defendants.

The object of the bill filed in this case is to obtain a decree for the sale of a tract of land called the Grove, whereof Samuel Calwell died seized and intestate, in order that by the future decree or order of the court, the proceeds of sale might be distributed amongst those entitled thereto,» T9 enable the. court to pass such decree it is necessary that it should appear, that all persons having an interest in the land are parties to the suit; that they may have an opportunity of protecting their interests , and shewing cause, if any they have, why a sale should not be decreed.

It is not pretended that there áre any parties in interest, who are not made parties to the suit; non has the decree finally adjudicated upon the extent of the rights of any of the parties. It simply provides for a sale of the' land, and that the money arising from such sale be brought into court for distribution. ’ It hás adjudged no part thereof to be paid to Taggart, or to any body else. All and each of the appellants had an opportunity afforded them of coming into court, and shewing cause against the passing of such a decree.

Having failed to do so, it forms- no Objection to the decree that the interest of Taggart has not been sustained by proof. The decree is equally necessary and just, whether the title of Thomas Calwell, to one-fourth part of the Grove, remains in his descendants named in the original bill or vested in Taggart, as stated in the supplemental bill. If Taggart has no interest in the property, he has sustained no injury from the decree-; and has neither motive or right to ask its reversal.

It not being recognized by the decree, the other defendants have no pretence for complaint that sufficient proof has not been adduced to sustain it. ■ The second alleged defect in the proof is, that ho title in the property in question has been shewn in the parties litigant in this cause. If this allegation were true, that the decree ■was erroneous could not be denied.

It must be.borne in mind in considéring this objection, that the title to the Grove does not appear by any proceeding in the cause to have been put in issue or in any wise controverted; on the contrary according to the statements- in the bill, the title of all the parties was deduced from Samuel Calwell the intestate. The only testimony offered on this subject was that of Edward F.

Bussey, who deposed, ;that he knew, the land whereon the said Samuel Calwell, deceased, formerly lived, which deponent understood was called the Grove; that said Samuel Calwell, now deceased, owned and held the said land for many years before his death, and died seized of the same, and that his widow continued to hold possession and occupy the said land for many years after the death of her said husband.

This proof in such a case we think sufficient prima facie evidence of title in the parties in this cause, upon proving themselves the heirs of the intestate, to sustain the jurisdiction of the court over the subject matter. The third defect in the proof which the appellants rely on is, that there is no proof that the persons named as heirs of S, Calwell are his heirs, except that given by Theodore Boyer, who it is objected is a party to the suit, and has a direct interest in the testimony he gave, which proved that the deponent was one of the heirs of Samuel Calwell, deceased.

This exception to the testimony of Boyer, if interested as stated, if taken at the proper time and place would have been conclusive against its reception. But it now comes too late. By the fifth ,

section of the act of 1832, eh. 302, it is enacted, that hereafter in all causes in the court of Chancery or any county court as a court of equity, all objection to the competency of witnesses, and the admissibility of evidence, shall be made by exceptions filed in the cause, and no point relating to the competency of witnesses or the admissibility of evidence shall be raised in such causes in the Court of Appeals, or noticed, or determined, or acted upon by the Court of Appeals, unless it shall plainly appear in the record, that such point had been raised by exceptions as aforesaid in said court of Chancery or county court.

In this case no such exceptions were taken in the county court, and consequently they are inadmissible here. By connecting the testimony of Theodore Boyer, with the statements in the bill of complaint to which it refers, it does sufficiently appear who were at that time the heirs of Samuel Calwell, to remove any obstacle in this respect to the decree of the county court. The appellants then are not entitled to a reversal of this decree on their first ground. The second ground assigned by them is, because there is no answer for the defendant, Samuel, who is alleged to be aii infant.

The objection here raised, is founded on a manifest mistake in inditing the answer of the guardian to the minors, in which the name of William, one of the-defendants is twice written, once by mistake for that of Samuel.

This fact is demonstrated by the return of the commissioner, the officer empowered by the county court to appoint the guardian the infants and to take their answer, who certifies, that he appointed the said guardian to answer for all thé infants, including the said Samuel, and that he had taken the answer of the said infants by their said guardian, which he enclosed with his certificate, and on which answer was indorsed the certificate of the said commissioner; that the guardian by him appointed to answer for the above named infants, had made oath before him, that the facts stated in the answer were true.

Such an objection made at the time and under the circumstances in which this has been urged, we think cannot avail the appellants. The third ground relied on by the appellants is, because the order to take the bill pro confesso, and to issue an exparte Commission passed before the rule to answer expired. We do not feel ourselves at liberty to say that there has been any irregularity in the passage of this order.

Neither the rules of Harford county court upon this subject, nor the time of holding its intermediate equity terms prescribed by law appearing before us; and the court certifying that the time to answer had elapsed, we will in the absence of all proof to the contrary assume the verity of their statement, and presume, that the order pro confesso, was legitimately passed. ‘There is nothing in the record to shew, that the rule to answer extended to the August term. It may by the rules of the court have beén limited to some intermediate day, or to the intervening equity term of the county court.

There is nothing in the fourth ground on which it is sought to reverse this decree, to wit: that no notice was given to the absent defendants to answer the supplemental bill, nof have the infants answered the supplemental bill. None of the descendants of Thomas Calwell, whose rights it is alleged in the supplemental bill had passed to Samuel Taggart, were absent defendants having an interest in the subject matter. It would have been idle to call on them to respond to it. The assertion that the infants have not answered the supplemental bill is not strictly conformable to the facts.

Their answer is substantially a confession or reiteration of the allegations in that bill. But concede that the adult heirs of Thomas Cal-well were all non-residents, and that the answer of the infants had been confined to the matters charged in the original bill; as concerns the present question it forms no objection to the validity of the decree. The supplemental bill was filed solely for the purpose of bringing in a new party in interest, and he alone should have been made to respond to it. Ensworth vs. Lambert and others, 4 John. Ch. R. 605, and McGown and others vs. Yerks and others, 6 John. Ch. R. 450.

Suppose all the heirs of Thomas Calwell had answered the •supplemental bill and denied every fact in it, it could avail them nothing. They could not have used their answers, no matter how responsive they might be to the matters charged in the bill, as evidence against the claims of the defendant, Taggart» As to him they were res inter alios acta. The answer of one defendant is not evidence against a co-defendant, even as to matters in contest between the complainant and such co-defendant; much less would it be so in the adjudication of conflicting claims between the defendants themselves.

ThQ fifth ground on which it is insisted, that this decree .should be reversed is, that a commission issued to take the answer of the infant defendants before any subpoena was served upon them. According to the well settled practice of the Chancery court of Maryland, the issuing and service of a subpoena always precedes the issuing of a commission to take the answer of infants. But the matter complained of is a mere irregularity in the process of the court, by which the parties were brought before it to contest their rights.

It in no wise affects the principles of the decree, nor forms any ground for its reversal. The infant defendants by this departure from the usual course of making them parties to this suit, sustained no injury, were subjected to no inconvenience, were deprived of no right or advantage which they would otherwise have enjoyed. They had the same opportunity of defending themselves by their answer, and protecting themselves from the relief sought by the appellee, as if their appearance in the county court had been affected by the usual course of proceeding.

This irregularity in the process of the court by which the. defendants were made to appear to the suit, forms no ground for objecting to the validity of the decree. At the proper time and for the appropriate purpose it might have been made the subject of a motion before the county court; but in an appellate court, it cannot be urged as a ground for' reversing the decree.

The decree of the county court.is affirmed with costs, both in this court and the county court, and the case is remanded to Harford county court, that such further proceedings may be had therein, as the nature of the case may require to do justice to the parties according to their respective rights and equities. DECREE AFFIRMED AND CAUSE REMANDED.