Brent v. Maryland
85 U.S. 430

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U.S. Supreme Court

Brent v. Maryland, 85 U.S. 18 Wall. 430 430 (1873)

Brent v. Maryland

85 U.S. (18 Wall.) 430

Syllabus

1. Where in a proceeding to sell the real estate of a decedent for the payment of his debts, the solicitor who presents the petition for the decree of sale is himself appointed trustee to make the sale, and himself becomes bound in bonds for the performance of the duties belonging to such appointment, and himself makes all the motions and procures all the orders under which the trustee's liability in the matter arises, he may, if he is liable for the nonpayment of money which he was ordered by the court to pay, be sued without formal notice to him. He has notice in virtue of his professional and personal relations to the case.

2. Where a trustee in such a case has given bonds with surety in a penal sum to the state conditioned for the performance of his duties, children, entitled equally to a share in any surplus remaining after debts, expenses &c., are paid from the proceeds of the sale, may, by the practice in the District of Columbia, after the exact amount of such share has been found by an auditor whose report is confirmed by the court, bring joint suit against the surety -- the trustee being dead -- in the name of the state on the bond for the penal sum, and a judgment for that sum to be discharged on the payment of the shares or sums certain found as above said is regular.

Such joint suit, though against the surety of the trustee (the trustee in his lifetime having had notice of everything), may, in the District, be at law.

Boteler, of Prince George County, Maryland, died possessed of considerable real estate and of some personalty, owing to one Warner a debt which the personalty was not sufficient to pay, and leaving a widow and minor children. Administration being taken by his widow upon his estate, a petition was filed by Warner, February, 1853, in accordance with the laws of Maryland, against the widow and children, to subject this real estate to the payment of the debts.

Page 85 U. S. 431

Daniel Digges, Esquire, was the solicitor of the petitioner, and as such signed the petition praying for a decree of sale. The court made the decree prayed for, and appointed the said Digges, the solicitor, trustee to make it. He was required to give bond in $15,000 for the faithful performance of his duties as such trustee. This bond he gave with Norah Digges as one of his sureties, the bond being in the form usual in Maryland -- that is to say, to the state, for the use of the parties interested in the real estate to be sold. By the decree ordering a sale, the trustee was ordered to bring into court the money arising from such sale, and the bonds or notes taken for the same, all to be disposed of under the direction of the court. The trustee made sale and reported it to the court, but never brought into court the money, notes, or bonds.

In June, 1854 -- Digges still maintaining his relations to the case -- an auditor was appointed to distribute the funds in the hands of the trustee. The auditor reported that of this fund there was due to each of the minor children the sum of $704.39 1/4. Thereupon the court, on the 11th of April, 1860 -- Digges still acting as solicitor -- confirmed the report and ordered the trustee to pay over these sums to the parties entitled. The trustee did not pay over as ordered, and afterwards, in 1860 apparently, or 1861, died insolvent. His surety being also dead, and J. C. Brent being his executor, suit was brought at law on the bond against Brent in the name of the state by the children jointly. The auditor's report which was in the record did not mention that Daniel Digges, the solicitor in the case, had appeared before him or had notice of the report's being made. Nor did the declaration in the case aver or the evidence show that any service of any order to pay or any demand of payment had been specifically made on the said Daniel Digges, the trustee.

The defense was,

1. That the trustee, Daniel Digges, had no sufficient notice of the auditor's report and its confirmation.

2. That the plaintiffs could not jointly maintain their action.

3. That the remedy was in equity alone.

Page 85 U. S. 432

But the court overruled all the defenses and gave judgment for $15,000, the penalty of the bond, to be discharged upon payment of a sum specified to each of the plaintiffs therein. Thereupon the defendant brought the case here.

Page 85 U. S. 433

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