
    JAMES M. SCHLEY and George Schley’s Lessee v. THE MAYOR AND CITY COUNCIL of Baltimore, FELIX McCURLEY, and Others.
    
      Decided June 5th, 1868.
    
    Sales under a decree ; irregularities ; purchaser’s title. Abatement of suit by death of parties.
    A. died in 1813, intestate, seized in fee of real estate in Frederick County and in the City of Baltimore, leaving eight children his heirs at law. Shortly after his death, proceedings were instituted in the Court of Chancery, to obtain a sale of said real estate, as being for the interest and benefit of all the parties concerned. A decree was passed, and two of the parties were appointed trustees to make sale. The sales were made, reported to the court and ratified, and accounts were stated and ratified. After the decree and before the sale by the trustees, B., one of the complainants, and one of the heirs at law of the intestate, died, leaving C., her husband, another of the complainants, and two sons, D. and E., her only children and heirs at law, surviving her;— no suggestion of her death was made, nor any proceeding had to revive the suit against her heirs at law, and the share of B. in the net proceeds of the sale were awarded to her surviving husband, as personalty, to the exclusion of her children. C., the husband, died in 1838, *and in 1864, D. and E., as heirs at law of their mother, instituted ejectment to recover her portion in some of the lands. The defendants claimed title to the land in question, by mesne conveyances from F., one of the complainants in the chancery proceeding, who purchased the same from the trustees. Held: 
      
    
    That the failure to revive the decree as against D. and E. did not, so far as the share of their mother was concerned, render the sale to F. void, the same having been finally ratified by a court of competent jurisdiction, nor impair the validity of his title as purchaser. 
    
    pp. 46-47
    Irregularity or error in the proceedings of a court of competent jurisdiction, cannot be inquired into collaterally in andther suit, 
    
    p. 46
    Appeal from the Superior Court of Baltimore City :
    At the trial of the action below, which took place in March, 1865, the plaintiff prayed the court to instruct the jury, substantially as follows :
    1. That his right to recover the one undivided eighth part of the premises in controversy, if otherwise made out to the satisfaction of the jury, is not barred by the decree in the cause in chancery, nor by the sale thereunder, nor by any other proceeding had in said cause.
    2. That the defendants claiming under Dunbar, the purchaser at the trustee’s sale, can claim no protection from such proceedings, if the jury shall find that before the day of the ratification of said sale, he, Dunbar, knew that Mrs. Schley had departed this life, leaving children and heirs-at-law.
    The defendants on their part, asked the court to instruct the jury, — that the death of Mrs. Schley, after the date of the decree, and before the sale made by the trustees to Dunbar, did not make said sale void as to her interest in the lands sold, as against the defendants claiming under Dunbar. The court granted the prayer offered by the defendants, and rejected those tendered by the plaintiff; and the verdict and judgment being against him, he appealed as well from the instruction given at the instance of the defendants, as from the rejection of the prayers offered by himself.
    *The caüse was argued before Bartol, C. J., Stewart, Grason and Miller, JJ.
    
      William Schley and Thomas S. Alexander, for the appellant :
    The purchaser of lands under a decree acquires thereby nothing more than the title of the parties to the suit, being such at the time of his purchase. The death of a material party to the decree, and as such interested to share in the disposition of the proceeds of sale, abates the suit" as to the party dying, and renders the decree ineffectual until after it has been revived as against the-persons on whom the interest of the party deceased has devolved. A sale made during' such abatement is fraudulent in construction of law, as against a purchaser becoming such without notice of the fact of abatement ; and, as against a party to the decree who purchases with knowledge of the abatement, is fraudulent in point of fact.
    “ A decree obtained without making those persons parties to the suit, in which it is passed, whose rights are to be affected thereby, is fraudulent and void as to those parties ; and even a purchaser under it, having notice of the defect, is not protected by such decree ; for, otherwise, the decree of a Court of Equity might be used as an engine for the purpose of effecting the grossest fraud.” Story’s Eq. PI. sec. 427; Cooper’s Eq. PI. 96, 98; Mit. PI. 94; Giffard v. Hoyt, 1 Sch. & Lef. 386; Bennett v. ITamill, 2 Sch. & Lef. 566; Tongue v. Morton, 6 H. & J. 21; ‘Frazer v. Palmer, 2 H. & G. 469; Brotvn v. Wallace, 4 G. & J. 479, 492; Farmers & Planters Bank v. Martin, 7 Md. 342; Bolgiano v. Cooke, 19 Md. 377.
    The distinction is in effect the old distinction between defect in jurisdiction and in the erroneous exercise of jurisdiction rightfully acquired. A decree for a sale against an infant is not to be avoided for want of evidence. But such a decree, passed on a bill which does not state jurisdiction, is a nullity, as inter alios. House v. Wiles, 12 G. & G. 338; Tomlinson *v. McKaig, 5 Gill, 276. Again, a judgment at law against a person, who was regularly served with process, is not to be avoided, collaterally, for error in the non-joinder or misjoinder of issues or the like. But a judgment against one who was not served with process, or against whom no proceedings equivalent to service of process has been taken, is a nullity.
    The rule has been well settled and uniformly supported that subsequent incumbrancers must be parties to a bill by the first mortgagee for foreclosure and sale ; and, if otnitted, the decree will not bind their rights. Haines v. Beach, 3 John. Ch. 459.
    And prior incumbrancers, who are not made parties to such suit, are not bound by the decree or proceedings thereunder. Brookes v. Boteler, 12 G. & J. 307; Cockey v. Mylne, 16 Md. 200.
    In short, every person who claims an interest in the property, or may share in the distribution of the proceeds, must be made a party to the suit for conversion of the property into„ money.
    If, after the commencement of the suit, and before a recovery had therein, any one of the material parties, plaintiff or defendant, dies leaving his interest to devolve on some other person not already a party, the suit will abate and no proceeding thereafter taken in the cause will affect this other person, or the interest thus devolved on him, until after the suit has been regularly revived against him. Howard v. Gardiner, 3 H. & McH. 98; Hall v. Hall, 1 Bland, 130. >
    The Act of 1842, ch. 229, is a legislative exposition of the effect of the death of a material party to a decree, and of the necessity for a revivor against the representatives of such party, before the decree can be executed. In Austin v. Cochrcm, 3 Bland, 337, we have the testimony of one, whose familiarity with the precedents of our Court of Chancery was unsurpassed, directly to the point, that the death of a defendant in a creditors’ suit after the decree, and after sale made, *and after ratification of the sale, abates the suit, and arrests all proceedings for the distribution, until revival of the suit. And in Glenn v. Clapp, 11 G. & J. 1, in 1839, this court declared that “it is a clear proposition that a suit in equity abates by the; death of any one of the parties materially interested.” The question arose after a sale and before ratification thereof. But a purchaser, who becomes such with actual notice of the abatement, cannot claim to be in a better position, after an order of ratification improvidently obtained, by concealing from the court all knowledge of the fact of abatement, than he would have occupied if the abatement had been alleged as cause against the ratification.
    
      The purchaser in this case was one of the original complainants — a near member of the family of Mrs. Schley, having intermarried with one of her sisters, and having notice in fact of Mrs. Schley’s death, and of the infancy and consequently of the defenseless condition of her children. A purchaser under such circumstances must stand on his strict rights. He can claim nothing from the indulgence of a Court of Equity. The English rule is equally well settled. Roundell v. Currer, 6 Ves. 250.
    In Maryland, before the year 1785, a sale made under a decree lacked the efficacy of a conveyance. It is only on construction of our Acts of Assembly, that the trustee’s deed operates as a transfer of the title. But there is nothing in the letter or rationale of those Acts to warrant the idea, that the right of the heir of a party deceased, to supervise the trustee in making his sale, to be present at the distribution of the proceeds, and to insist that the cause shall be revived against him before he is turned out of possession, is taken away.
    Upon principle and authority, therefore, it is submitted, that if, after a decree for a sale, a material party in interest dies, the decree becomes abated, and incapable of execution, so far as regards the interest of the deceased, until it shall have been revived against his heir. If this be not so, the ^alternative is inevitable. The interest of a deceased party becomes a legal waif, and a proper object for pillage by any passer-by.
    Jurisdiction, concerns, in the first place, the subject matter of the suit ; that is, the complainant is bound to show, on the face of his bill, a gravamen which a Court of Equity may redress ; and, in the next place, parties — it being his duty to bring before the court, as parties, all persons whose interests may be, in any wise, affected by the adjudication of the subject. If the case stated is not of equitable cognizance, the decree thereon is, in every sense, a nullity : and, if a case is shown for the interposition of equity, the court can relieve only as against parties to the suit, and the interests represented by them. Tomlinson v. McKaig, 5 Gill, 276.
    “ The true test of jurisdiction will, in all cases, be found in the determination of the question, whether a demurrer will lie to the bill.
    “ If this be so, neither the erroneous action of the court after the filing of the bill, (showing a case for the exercise of jurisdiction,) nor defective proofs could affect the question of jurisdiction” — that is to say, as against all persons who are parties to the suit. Shrwer v. Lynn, 2 How. 43.
    As responsive to Whiting v. Bank, 13 Pet. 6, wherein Judge Story asserts an analogy between a sale made under a decree of a Court of Equity, and a sale made by a Sheriff under execution issued out of a Court of Law, the following authorities were referred to. Wharam v. Broughton, 1 Ves.'Jr. 181; Mitchell v. St, Maxent, 4 Wallace, 237; Jefferson v. Morton, 2 Saund. 6, note 1; Underhilfv. Devereux, 2 Saund. 72, i; Penoyer v. Brace, 1 Ld. Raym. 245; Queen v. Ford, 2 Ld. Raym. 768. And in reply to the case of Jackson v. Robins, 16 John. 537, the following cases were cited. Woodcock v. Bennett, 1 Cow. 711; Stymets v. Brooks, 10 Wend. 207; Ins. Co. v. Slee, 2 Paige, 365; Requa v. Holmes, 16 N. Y. 193.
    
      *John P. Poe, William Henry Norris and I. Nevitt Steele, for the appellees :
    The appellees it is conceded have the title of Dunbar. 'If that be good, there is an end of the case, and the judgment below must be affirmed. The lessors of the plaintiff, though not technically made parties by a regular proceeding, reviving the decree as against them, were nevertheless actually brought before the court in the two accounts of the auditor which were filed ; and the decision of the Chancellor in awarding their mother’s share of the proceeds to their father, however erroneous, not having been appealed from, binds them, and estops them now from asserting title to the land itself. Hunter v. Hat-ton, 4 Gill, 124. The case at bar rests on grounds purely technical. It is not pretended that any wrong was done to the lessors of the plaintiff, by the sale — that if the suit had been revived, there could have been a better sale. There is no fraud. The wrong done is in the distribution of the funds. The appellants came of age twenty years before this suit was instituted, and lay by without filing a bill of review to correct the error in a Court of Equity, where justice could have been done to all parties. The defendants are purchasers from the Court of Chancery as vendor, and have the receipt of the court for the purchase money. It was a judicial sale and should be upheld by every legal intendment. Courts guard and maintain with jealous vigilance the titles of purchasers, acquired at judicial sales. Cocksy v. Cole, 28 Md. 285; Thompson- v. Tolmie, 2 Pet 162. How far are the appellants to be regarded as parties to the proceedings in the Chancery case, and concluded thereby ? It appears from the record that they were in court. They are named in the auditor’s report as claiming part of the fund, and got their uncle’s interest in this land. How did they get it ? as parties claiming it whose rights have been adjudicated. As to their mother’s share, the Chancellor’s decision was adverse to them ; but it was a decision, nevertheless. Has this decision been reviewed by a bill of review ? That was their ^remedy. While the record stands, they are bound. They ask now that this decree of the Chancellor be reversed and seek to unsettle titles, where parties have been in possession, fifty years. If the parties were in court and received any part of the funds distributed, they are concluded, whether brought in formally and regularly, or not. Story’s Eq. PI. 370, a.
    
    The failure to revive as against the lessors of the plaintiff was at most an irregularity merely in the exercise of the undoubted jurisdiction of the Chancellor, and did not affect the jurisdiction itself, and consequently his order finally ratifying the sale to Dunbar is conclusive, and cannot be collaterally impeache'd.
    The inquiry here is not whether A’s property can be taken from him under a decree against B. or under a decree passed without the service of process against him, nor whether, according to strict Chancery principles and forms, a decree ought regularly and properly to be revived when complainant or defendant dies before its execution — nor whether a suit in equity, after decree abates, upon the death of one of the parties ; but simply whether, under a decree regularly passed in the lifetime of a feme covert complainant, by a court of general and unquestioned jurisdiction, fixing absolutely and finally the liability of her land to be sold, a purchaser of that land, at the sale by which that decree is carried into execution, will acquire her title, though in the meantime she may have died, leaving infant heirs not technically made parties to the suit.
    It is admitted that the decree for a sale was valid and binding at the time it was passed — but it is asserted that the death of Mrs. Schley suspended its force. What is meant by the abatemqnt of a decree ? nothing more or less than this — if it appear to the court, by suggestion or otherwise, that a party may be affected by the decree, the court will not act until the party is notified and brought in. A process of execution issued does not abate by death. A decree is a judicial process- — it is compíete in itself — self-sustaining—it contains *within itself its process of execution. The validity of an- execution cannot be inquired into collaterally. Trail v. Snouffer, 6 Md. 314.
    The bill was filed in the appropriate court, possessing ample jurisdiction — it presented on its face a case for the exercise of that jurisdiction — -it brought into court all the parties having at the time any interest whatever in the subject matter of the suit — the decree was passed during the lifetime of all those parties — the lessors of the plaintiff were there represented in the person of their mother, and claiming under her, as they do, there is a privity of estate between them and her. Now, why in principle should they not be bound by what the Chancellor in that case adjudged, when they draw in question collaterally the validity of his.decrees therein ? Having once acquired jurisdiction by an appropriate application, it is a familiar doctrine that no errors or irregularities in the proceedings under it, could oust the Chancellor of his jurisdiction thus acquired. But it lived on until the termination of the cause, imparting validity -and efficacy to all that he did and protecting completely all persons who can trace back their titles and rights to its existence, so long as that remains unappealed from and unreversed. ,
    The decree established the liability of the land to be sold, and was strictly a final decree — the sale and all the ulterior proceedings were but a mode of executing it like the award of an execution at law. Hence, upon the death of; Mrs. Schley, the lessors of the plaintiff took her title subject to ¡the legal effect of the decree, swhich bound it as completely in their hands as in hers.
    A sale made after the title was thus cast on them was not void, — but was at most merely an irregularity which, if objected to in due season, might have been considered, but which is effectually cured by a final ratification of the sale. Whiting v. Bank, 13 Pet. 6; Elliott?v. Knott, 14 Md.,134; Bennett v. Hammill, 
      2 Sch. & Lef. 566; Bolgiano v. Cooke, 19 Md. 377; Glenn v. Clapp, 11 G. & J. 1; Miles v. Knott, 12 G. & J. 442; Tongue v. Morton, *6 H. & J. 21; Shriver v. Lynn, 2 How. 58; Grignon v. Astor, 2 How. 339; Speer v. Sample, 4 Watts, 367; McPherson v. Cimliff, 11 Serg. & Rawle, 429; Perkins v. Fairfield, 11 Mass. 227.
    
      
      
        а) As to the abatement of suits by the death of parties, see Miller’s Equity Procedurej p. 256, note 1; Whelan v. Cook, ante, p. 1. As to the necessary parties to a suit, see Benson v. Yellott, 76 Md. 160, where it is-held that a purchaser at a judicial sale, was bound to see that all proper parties were before thescourt.
    
    
      
       Cited in Rowland v. Prather, 53 Md. 241.
    
    
      
       See Hamilton v. Traber, 78 Md. 28; Dugan v. Baltimore, 70 Md. 7. See Shultz v. Houck, ante, p. 24, note (6).
    
   Bartol, C. J.,

delivered the opinion of the court :

This is an action of ejectment brought on the 9th of January, 1864, by the appellant, to recover an undivided eighth part of a parcel of land lying in the City of Baltimore. The lessors of the plaintiff claim as children and heirs-at-law of Mrs. Eliza A. Schley, who was one of the eight children and heirs-at-law of James McCannon, who died intestate in 1815, seized in fee of the land in dispute. The defendants claim by mesne conveyances from George T. Dunbar, who purchased the same from Ann McCannon and Frederick A. Schley, trustees appointed and authorized to sell, by a decree of the Court of Chancery passed on the 6th of October, 1815. Frederick A. Schley and Eliza A., his wife, the mother of the plaintiff’s lessors, were parties complainants in the cause ; the sale to Dunbar, another of the complainants, was duly reported and ratified. After the decree was passed, and before the sale, Mrs. Eliza A. Schley, one of the complainants, died ; but there appears to have been no suggestion of her death made, nor any proceedings had for the revival of the cause against the lessors of the plaintiff, her heirs-at-law, and on this ground the plaintiff contends that Dunbar, the purchaser, acquired no title to the share of the land belonging to Mrs. Schley, and which by her death had devolved upon the lessors of the plaintiff.

The court below instructed the jury that the death of Mrs. Schley, after the date of the decree, and before the sale, did not make such sale void as to her interest in the land sold, as against the defendants claiming under Dunbar. The correctness of this instruction comes before us for review bn this appeal.

Two pra3'ers, presenting the converse of this proposition, were asked by the plaintiff below and rejected by the court ; *the first makes the invalidity of Dunbar’s title depend upon the death of Mrs. Schley before the sale, and the second makes it depend upon the fact of Dunbar’s knowledge of her death before the ratification of the sale to him. In other words, the first prayer of the plaintiff treats the purchase of Dunbar without a revivor .of the decree against the lessors of the plaintiff as a fraud in law, and the second as a fraud in fact on the part of Dunbar, the purchaser. The bill of exceptions presents also for review the ruling of the court below upon the plaintiff’s prayers. In our opinion, the record of the proceedings in chancery furnish no evidence of any fraud in fact, committed by Dunbar. Being one of the complainants in the cause, and a'brother-in-law of Mrs.'Schley, the jury might well have assumed that her death was known to him before the ratification of the sale in 1827. But it cannot be assumed that he was aware of the necessity of a revivor of the decree against her children. Such a proceeding does not appear to have been considered necessary either by the Chancellor or any of the parties to the cause. In another cause, in which the children of Mrs. Schley (the lessors of the plaintiff) were made parties, the Chancellor had decided by his order passed on the 20th of March, 1823, that their mother’s interest in the land had devolved as personalty upon their father, and had not descended to them as realty. And in conformity with that decision, the share of Mrs. Schley, in the net proceeds of the sale to Dunbar,' was by the Chancellor awarded to her surviving husband as personalty, to the exclusion of her children. Under such circumstances no fraud can be imputed to the purchaser for a failure to have the decree revived against the heirs of Mrs. Schley ; and the fact that her death was known to him does not in any respect weaken or impair his title acquired from the Court of Chancery ; that must depend exclusively upon the correctness of the proposition contained in the plaintiff’s first prayer.

The appellees’ counsel have contended, with much force of reasoning, that the lessors .of the plaintiff, though not made *technically parties to the chancery cause, by proceedings against them to revive the decree, were yet actually made parties before the court and their rights adjudicated so as to bind and estop them from impeaching the title of the purchaser. It appears from the proceedings that the trustees sold the entire estate, including the share of Mrs. Schley. When the proceeds came to be distributed, two accounts were stated by the auditor, in one of which her share was awarded to the lessors of the plaintiff, as realty, subject to the life estate therein of their father ; in the other it was treated as personalty and awarded absolutely to their father, as surviving husband of Mrs. Eliza A. Schley. This last account was ratified by the Chancellor, he apparently considering that the decree had operated to convert the property into personalty. That decision was no doubt erroneous. See State v. Krebs, 6 H. & J. 31. No steps, however, were taken by appeal or otherwise to correct the error. It has been argued that by the report of the auditor, the rights of Mrs. Schley’s heirs, the lessors of the plaintiff were brought before the Chancery Court, considered and decided, and that they are thereby precluded from denying that they were actually parties to the cause, and estopped from setting up a claim against the purchaser, as much as if the decision had been in their favor. Hunter v. Hatton, 4 Gill, 115, 124, has been cited in support of this position. It is not necessary for us to express any opinion as to the effect of the auditor’s reports, and the decision of the Chancellor thereon, as affecting the rights of the plaintiff’s lessors in this case. Conceding that they are not thereby estopped, the question still remains whether the (ailure to revive the decree as against them, renders the sale to Dunbar void, so far as the share of their mother is concerned ; or whether that was a mere irregularity, not affecting the jurisdiction of the court to pass the order ratifying the sale, or impairing the validity of the purchaser’s title.

We have examined with much care the numerous authorities referred to by the counsel in argument, and will state *briefly the conclusions at which we have arrived upon this question, without referring particularly to all the authorities cited, or attempting to analyze or explain the principles upon which they rest ; to do so, would protract this opinion to unnecessary length : Eying at the basis of the case, is the principle that irregularity or error in the proceedings of a court of competent jurisdiction can never be discussed collaterally in another suit. It is unquestionably a well settled rule in chaneery practice, that if a complainant or defendant die after decree, so that other parties become interested therein, the decree ought to be revived by proper proceedings before its execution by a sale. And if this be not done, the error may be relied on as a sufficient ground for setting aside the sale, if exceptions be lhade in the cause before its -final ratification. Glenn v. Clapp, 11 G. & J. 1, But we have found no well adjudged case, in which it has been held that such an error or irregularity renders the sale void which has been ratified by a court of competent jurisdiction, or furnishes a sufficient ground for impeaching the rights of the purchaser in a collateral proceeding. In this case the decree was passed by a court having jurisdiction over the property and the parties. Mrs. Schley, the mother of the lessors of the plaintiff, under whom they claim title, was a party complainant in the cause at,the time the decree was passed, her interest was therefore bound by the decree, and continued so bound when upon her death it devolved upon her heirs. The decree was final so far as to establish, the liability.of the land to be sold. The subsequent proceedings for the execution of the decree were taken in the same court having the jurisdiction to decide upon the proper mode of its execution ; and competent to determine upon the regularity and validity of the sale, and the sale made by its officers was duly ratified. Under such circumstances, every principle of equity requires that the title of the purchaser should be protected, as was said by this court in Cockey v. Cole, 28 Md. 285. The Court of Chancery “ had jurisdiction of the subject matter, and if its jurisdiction was improvidently exercised, it would be intolerable *to hold that its errors could be corrected, in a collateral proceeding, at the expense of an innocent purchaser, who had a right to rely upon the final order of ratification of the sale, as the proper exercise of judicial authority. Sales thus sanctioned when collaterally called in question should be upheld by every legal intendment.” In Cockey v. Cole, supra, this court referred to the decision of the Supreme Court, in Thompson v. Tolmie, 2 Pet. 157, which may be cited here as containing principles applicable to the present case. We refer also to Whiting v. Bank, 13 Pet. 6, in which it was decided that the death of a party after a decree and befóte the sale, where the decree was not revived against his heirs, did not invalidate the title of the purchaser. There the proceeding was by a bill of review, and the doctrine there announced applies with more force to a case like this where the title thus acquired, is assailed in a proceeding altogether collateral. Both courts of law and equity have adhered with great uniformity to the rule, which guards and maintains vritji jealous vigilance the title of purchasers acquired under judicial sales. Tomlinson v. Devore, 1 Gill, 349; Henry v. Graddy, 5 B. Monroe, 453; Proctor v. Terrill, 8 Monroe, 452. In this last case, it was held that “ the parties to a judgment or decree, are equally with all others at liberty to bid and purchase property exposed to sale under the authority of a judgment or decree, and there is the same reason for protecting the interest acquired by a party under a purchase as that of a stranger.” We think this rule is applicable to the present case. We have before said that the charge of fraud in fact on the part of Dunbar, the purchaser, is not supported by any proof, and therefore, the title acquired by him is entitled to the same protection as if he had been a stranger to the cause.

The sale having been made and ratified under the authority of a court of competent jurisdiction, the error or irregularity in the proceedings cannot be relied upon in the present suit to defeat the title of the purchaser. Judgment affirmed.  