as tenants in common. Thereafter the Manor Mining & Manufacturing Company filed a caveat protesting against the issuance of the patent. Upon a hearing before the Commissioner an order was passed dismissing the caveat and ordering the patent to issue. From that order the caveator has appealed. The grounds of the appeal are: (1) That the land described in the certificate of survey is not vacant; (2) that the survey was not made in accordance with the rules of the Land Office and the laws of Maryland; and (3) because it would be unjust to the caveator to have a patent issue. The land in this case alleged to be vacant, consisting of 14 acres and 96 square perches, has a width of 21⁄2 perches and is located between a tract of land called Crotia on the north and a tract called Fairleigh on the south. These two tracts are composed of several parcels of land, each of 50 acres, which were a portion of over 4,000 lots surveyed and laid out west of Ft. Cumberland in 1788 by one Francis Deakins acting in virtue of a resolution of the General Assembly. The purpose being to grant these lots to officers and soldiers of the Revolutionary Army as bounties of land previously promised to encourage recruiting. Mr. Deakins, upon the completion of the survey, returned a general plot of the country westward of Ft. Cumberland, on which, with other tracts, were laid off these 4,000 lots, called military lots, and two books containing all the certificates of survey of these military lots. By the act of the Legislature 1788, c. 44, this plot and the books of certificates were lodged in the Land Office, and the books of certificates were therein authorized to be considered to all intents and purposes as record books of that office. The contention of the caveatees is that the certificates of survey for these military lots, as well as certificates of resurvey of the tracts Crotia and Fairleigh, show that there is this strip of land not embraced in any or either of these aforesaid tracts. The caveator on the other hand contends that a portion of the strip is contained in the lines of the original military lots now owned by it. And that, if any of the part intended to be patented is embraced in a former survey, then the patent for the whole must be refused. This principle of law is not open to question. The caveator owns two of the military lots about the eastern end of the tract claimed to be vacant; one lot being north of the strip and the other south. The one on the north being a part of Crotia and the one on the south a part of Fairleigh. The one on the north is numbered 361 and the one on the south 287. The contention of the caveator being that the south line of the former is the north line of the latter. In other words, that the two tracts are contiguous, and there is no vacant land between them as issues raised by the caveat, testimony was taken before the examiner of Garrett county by the respective parties, and several certified copies of deeds, certificates of survey of the military lots made by Deakins, and certificates of resurvey of Crotia made in 1840 and of Fairleigh made in 1853 were filed as exhibits and returned and are now contained in the present record. The only witness produced by either party bearing upon the question of the fact of the vacancy was Mr. Mason, the county surveyor of Garrett county, who was produced upon behalf of the caveatees. [1] We have considered closely and carefully all the testimony offered on this point, including a careful study of the certificates of survey in connection with the plats offered, and have arrived at the conclusion therefrom that this land claimed by the caveatees is vacant land. Briefly stated we have reached this conclusion for the following reasons: In the first place, the plot filed by the caveator, assuming it to be a correct copy of the one made by Deakins, shows the lots of the caveator, before-mentioned Nos. 361 and 287, to be contiguous. If a true running of the lines of the certificates proves a variance between them and the plot, the variance must be determined in favor of the correctness of the certificates. Irrespective of the true location of the corners and the beginnings of the different military lots concerned in or about this tract of land, the certificates of survey and resurvey show clearly, because of the relative position of the tracts and lots, that wherever the lots Nos. 361 and 287 may be situated there is between them on the south and north sides, respectively, a space of 21⁄2 perches. The beginning for the first line of lot 361, which is the south boundary of that lot, is fixed as being 22 perches due north of the end of the first line of lot 359, which last line coincides its entire length of 891⁄2 perches with the first line of lot 358; the said first line being extended further west 261⁄2 perches. The course of the first line of lot 361 is given as due west. The eleventh line of Fairleigh runs north 19%2 perches from the end of the first line of lot 358, or the first line of lot 359 extended, and with the first line of lot 287. The second line of lot 287, which is the north boundary of that lot, runs due west from the end of the eleventh line of Fairleigh, also being the end of the first line of lot 287. Therefore, since the beginning of the first line of lot 361 is 22 perches north of the first line of lot 358, and the beginning of the second line of lot 287 is north 191⁄2 perches from the same line, the beginning point of lot 361 must be 21⁄2 perches north of the beginning point of the second line of lot 287. Since these two lines run due west, they must be parallel, and therefore the distance between them throughout is 21⁄2 perches. The extension be protected in a court of law or equity. the fourteenth line of Crotia and forms a that whatever rights the caveatee has can straight line; and the extension of the second line of lot 287 to the west is the twelfth line of Fairleigh and is a straight line. Therefore these lines are parallel, and it follows that there must be an open space of 21⁄2 perches between these two lines of Crotia | and Fairleigh or of the lines of the military lots forming these lines. We further find that the surveyor has properly located the original beginnings and lines of the military lots, and that the lines constitute the boundaries of this vacant tract, as laid down ir his returned plot. (121 Md. 445) WILMER v. TRUMBO. (Court of Appeals of Maryland. June 26, 1913.) [2] As to the objection that the surveyor violated the rule of the Land Office, which 1. JUDGMENT (§ 872*)-REVIVAL-SCIRE FACIAS - INJUNCTION-RIGHT TO EQUITABLE provides that: "Nor are you to return to the RELIEF. Land Office any plot or certificate for land of which either you or your assistant has not actually measured every line"-we think it is clear, from a reading of the entire testimony of Mr. Mason, that there was a sufficient compliance with the rule to remove any reasonable objection. His testimony shows that he did not actually survey every line at the time of the execution of the special warrant in this case, but some of the locations had been made by him on former surveys. We think if all of the lines were surveyed by him before the return of the certificate and plot, as he testified, it is immaterial whether they all were actually done so at the time of the execution of the warrant or not. The important thing is that all lines shall be measured, and, if they have, all requirements of the rule have been met. The caveator contends further that, assuming a vacancy exists and that the proceedings have been regular, still a patent should not issue in this case for the principal reason that one of the caveatees, John T. Mitchell, was its attorney and agent in the purchase by it of lot 287 and failed to disclose that he knew or had reason to believe that a vacancy existed between this lot and another owned by it. That Mr. Mitchell knew of the alleged vacancy is apparent from the fact that two special warrants for this same tract of land were issued to him and the other caveatees four and five years before the purchase of lot 287, neither of which was executed. The testimony of the only witness, Mr. Frick, president of caveator company, is so meager and indefinite that we are not able to find from anything in it that Mr. Mitchell is open to the criticism that the caveator makes of his conduct. There is, however, nothing contained in the record that would justify the refusal of a patent to Mr. Sincell on any grounds of improper conduct. And we cannot conclude from any facts before us that the imputations of the caveator are well founded. We are of the opinion that the Commissioner of the Land Office was correct in his ruling that the patent should issue, and A judgment debtor having died, defendant issued a scire facias, which was served on complainant as the debtor's personal representative. She appeared and testified that she was not such personal representative, and had no knowledge of his affairs; that he had had a daughbut that she was then dead. She believed that ter whose name was the same as complainant's, the proceeding so far as she was concerned was dismissed. Without her knowledge judgment was entered against a person of complaindebtor and placed on record, after which an ant's name as personal representative for the execution was levied on certain land of which complainant was the owner, when she filed a bill to set the judgment aside. Held, that the service of the scire facias on complainant was due to a mistake as to her identity, and that her failure to give further attention to the proceeding or to appeal from the judgment rendered therein did not bar her from equitable relief by injunction restraining the enforcement of the judgment against her property. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1641, 1642; Dec. Dig. § 872.*] 2. JUDGMENT (§ 872*)-PERSONAL LIABILITY REVIVAL OF JUDGMENT AGAINST DECE DENT. Where a scire facias to revive a judgment after the death of the judgment debtor is issued against his personal representative, the new judgment recovered binds only the decedent's assets, and cannot be enforced out of the individual property of such representative. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1641, 1642; Dec. Dig. § 872.*] 3. JUDGMENT (8 460*)-INJUNCTION AGAINST ENFORCEMENT BILL WRITTEN INSTRUMENTS. ATTACHMENT OF Where complainant sued to restrain defendant from enforcing a judgment which decomplainant was the conceded owner, which fendant was asserting against property of which judgment defendant had recovered in scire facias proceedings against the personal representative of his deceased judgment debtor, who was a person other than complainant, the bill was not objectionable because complainant did not attach thereto as exhibits the judgment, writ of scire facias, and execution, together with complainant's deed for the property seized, in compliance with the rule that, where an applicant for injunctive relief has in his possession or can produce authenticated copies of rests, they must be presented in support of the or instruments on which his equity bill, since the exhibits demanded were not necessary to enable the court to see the equities of complainant's case. papers [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. § 460.*] Appeal from Circuit Court No. 2 of Balti- that the appellee does not answer to that more City; James P. Gorter, Judge. description. The service of the writ of scire facias upon her was plainly due to a mistake as to her identity. There was ample ground for her belief, under the circumstances stated in the bill, that, the error having been proven without dispute, no action could be taken in the case by which she would be in any way affected. It would be subjecting her to an unreasonably strict and rigorous rule to deny her the aid of a court of equity merely because she failed to give further attention to a proceeding in which she was formally shown to have no interest of any kind and to appeal from a judgment by which, as she was fully justified in believing, she could not possibly be bound. Even if the appellee were in fact the executor or administrator of the deceased debtor, the judgment could not be executed as against her individual property. Where a scire facias to revive is issued against his personal representative, the new judgment thus obtained binds only the decedent's assets. Tiers v. Codd, 87 Md. 447, 39 Atl. 1044; Poe's Prac. § 593. The writ requires the defendant in the scire facias "to show why the plaintiff should not have execution of the debt or damages to be levied of the goods and chattels which were of the testator or intestate at the time of his death, in the defendant's hands to be administered." Tidd's Prac. 1119; 2 Harris' Entries, 730. URNER, J. By the bill of complaint in this case the following facts are alleged: On April 30, 1900, the appellant, Edwin M. Wilmer, obtained a judgment for $43.98 | against John J. Spellman before a justice of the peace of Baltimore city. The judgment debtor subsequently died. In 1912 a writ of scire facias was issued at the appellant's instance for the purpose of renewing the judg-a judgment after the death of the defendant ment. The writ was served upon the appellee, Margaret Trumbo, as the personal representative of the deceased debtor. She appeared before the justice of the peace who issued the writ and testified that she was not Spellman's personal representative and had no knowledge of his affairs; that he had a daughter by the name of Margaret Trumbo, but that she was then dead. This was the only testimony taken before the justice. The appellee was not indebted in any capacity to the appellant, and, in view of the uncontradicted proof that she was not the personal representative of the judgment debtor, she believed that so far as she was concerned the case was dismissed. A judgment, however, was, without her knowledge, entered in the case by the justice against Margaret Trumbo, personal representative of John J. Spellman, for $90.60, and it was placed on record in the office of the clerk of the superior court of Baltimore city. In January, 1913, the appellee filed the bill now under review, setting forth the facts just stated, and alleging, further, that the appellant had caused a writ of fieri facias to be issued on the judgment, and that in the execution of the writ of sheriff of Baltimore city had levied upon and was proposing to sell certain lots of ground of which the appellee was the owner. It was charged that the judgment was obtained by fraud, and that to subject the appellee's property to its payment would be unconscionable. The bill prayed that the execution be restrained by injunction. The appellant demurred to the bill, and this appeal is from the order of the court below overruling the demurrer, with leave to answer. [1, 2] Upon the allegations of the bill, which are admitted to be true for the purposes of the present inquiry, the appellee is clearly entitled to equitable relief. The judgment sought to be enforced is against Margaret Trumbo, personal representative of John J. This limitation is altogether disregarded by the execution here sought to be restrained. It attempts to appropriate for the payment of the decedent's debts property which admittedly does not constitute part of his estate, but belongs to the appellee in her individual right and capacity. The prosecution of such a proceeding by the appellant, under the conditions described in the bill, would be a fraud and imposition, which a court of equity could not hesitate to restrain. [3] It is objected that the bill is not accompanied by exhibits of the judgment, the writs of scire facias and execution, and appellee's deed for the property which has been seized. The rule is that, if an applicant for relief by way of injunction "has in his possession or can produce authenticated copies of papers or instruments of writing on which his equity rests," they must be exhibited in support of the bill, "in order that the court may see that he is entitled to the relief prayed." Nagengast v. Alz, 93 Md. 525, 49 Atl. 333; Water Co. v. Hagerstown, 116 Md. 509, 82 Atl. 826, Ann. Cas. 1913C, 1022; Baltimore v. Keyser, 72 Md. 115, 19 Atl. 706; Gottschalk v. Stein, 69 Md. 51, 13 Atl. 625. Where the reason thus stated for the production of exhibits does not exist, the rule is not applied. Webb v. Ridgely, 38 Md. 369; Didier v. Merryman, 114 Md. 438, 79 Atl. 597. The appellee's equities do not rest upon the scire facias and execution proceedings, nor is there any question of title involved. The object of the ing a claim which he is asserting against property of which the appellee is the conceded owner. The exhibits demanded by the appellant are not necessary to enable the court to see the obvious equities of the case stated in the bill. the Trustees of the Samuel Ready School for Female Orphans, appeals. Order affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ. Wilton Snowden, Jr., of Baltimore, for apOrder affirmed, with costs, and cause re-pellant. John Hinkley, of Baltimore, for ap manded. 1. TRUSTS (§ 189*)-SALE BY TRUSTEE-VALIDWhere a will provided for three trustees, and on their resignation the court appointed but one, the validity of such substitutional appointment was not involved on objections by the purchaser to a sale of the trust property made by such trustee under a special appointment to sell. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 240, 241, 244; Dec. Dig. § 189.*] pellee. BRISCOE, J. The appeal in this case is from an order of the circuit court for Baltimore city overruling exceptions to a sale of a ground rent of $2,000 per annum, issuing out of a lot, situated on Boston street, in the city of Baltimore, and ratifying and confirming the sale. The sale was made by the appellee, as trustee, to the appellant, on the 21st of February, 1913; for the sum of $39,000, under a decree of court passed on the 10th day of May, 1898, in the case entitled the Safe Deposit & Trust Co. of Baltimore, Trustee, v. Kensett et al. In the report of sale made by the trustee it is stated that the trustee has sold all of the property mentioned in these proceedings and has con 2. TRUSTS (§ 160*)-SALE BY TRUSTEE-VA-tinuously endeavored to sell the rent but has LIDITY-OBJECTIONS BY PURCHASER. Mere irregularities in proceedings for appointment of a trustee under Code Pub. Civ. Laws, art. 16, § 94, in which the court had jurisdiction of the subject-matter and parties, would not sustain exceptions by the purchaser to a trustees' sale of property. [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 204, 207, 208; Dec. Dig. § 160.*] 3. TRUSTS (194*)-SALE BY TRUSTEE-VA LIDITY. On petition for division, or sale and division, of trust property, the decree directed sale of all the lots, including certain ground rents at a time deemed most advantageous, with leave to report to the court for approval any sales of all or any portion of the property, and the trustee was appointed to receive from the owners of the leasehold interest the redemption money for the reversionary interest in any lots where the rents were or might be redeemable and to execute deeds to extinguish the rents. Held that, the court having jurisdiction of parties and subject-matter, and the trustee being directed to bring the money into court for distribution, the decree was binding on all parties interested, in esse or not, so that a sale of the ground rents, though made long after a sale of the other property, was not subject to attack by the purchaser. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 249; Dec. Dig. § 194.*] 4. TRUSTS (§ 194*)-SALE BY TRUSTEE. The trustee holding the legal title is a proper party to file a bill for a division or sale for the purposes of division, and the mere lapse of time between the date of the decree and the sale is not necessarily sufficient to set aside the sale. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 249; Dec. Dig. § 194.*] Appeal from Circuit Court of Baltimore City; Thos. Ireland Elliott, Judge. been unable to sell the same at an adequate price; that, subject to the ratification by the court, a private sale has been made to the appellant of the ground rent for the sum of $39,000, to be paid in cash upon the ratification of the sale; that the price is a fair and adequate one and is more than could be obtained at public sale; and that it is to the benefit, interest, and advantage of all persons interested that the sale be ratified and confirmed. There was filed with the report a certificate of two real estate brokers as to the adequacy of price at which the ground rent was sold. The objections to the ratification of the sale are based upon the following grounds: (1) Because the trustee cannot give a good and merchantable title to the property; (2) that the appointment of the Safe Deposit & Trust Company as sole and substituted trustee was in violation of the provision of the testator's will, which provided that the number of trustees should always be three, and, even if the substitution be valid, the appellee was not a proper party to institute the partition proceedings; (3) because the jurisdictional averments contained in the bill are not sufficient to bind unborn persons, and the case is not therefore brought under the Acts of 1862, c. 156, and 1868, c. 273, section 198, art. 16, of the Code of 1888, as stated by the auditor and master in chancery; (4) because the decree under which the property was sold is too old, having been passed nearly 15 years ago, and was not a decree for sale and immediate reinvestment of the property but was intended to operate in the future and is not now a valid and subsisting decree. It will be seen that the objections relate Proceedings by the Safe Deposit & Trust Company of Baltimore, Trustee, for partition or sale of trust property. From an order overruling exceptions to a sale of ground rent and confirming the sale, the purchaser, to and are based upon the form and validity of the proceedings adopted by the trustee prior to the decree and not in any way to the title of the testator, Mr. Kensett, the owner of the property, or those from whom he acquired the property. Some of the objections, in our opinion, are not open for review and cannot be regarded as sufficiently jurisdictional to defeat the sale under the decree or to require the appellee to procure a new decree in order to accomplish the same result as has been obtained here. Hamilton v. Traber, 78 Md. 28, 27 Atl. 229, 44 Am. St. Rep. 258; Wickes v. Wickes, 98 Md. 308, 56 Atl. 1017; Slingluff v. Stanley, 66 Md. 220, 7 Atl. 261. The property here in question, and the decree for its sale, were before this court in Kensett v. Safe Deposit & Trust Co., 116 Md. 526, 82 Atl. 981; and, while the objections here raised were not directly presented, the decree was treated in that case as a valid and subsisting decree, and it was held that the parties in that case would be bound by the decree. [1] Whether the appointment by the court in 1889 of the Safe Deposit & Trust Company as trustee upon the resignation of the three trustees named in the will was a proper compliance with the sixteenth clause of the will is not a matter which can affect the appellant on this appeal. The sale was made by the appellee, as a specially appointed trustee under the decree of 1898, and not under its substitutional appointment in 1889. The court had the undoubted power to appoint less than three trustees to make the sale. [2] The substituted trustee appears to have been properly appointed under section 94, art. 16, of the Code; and, if the court had jurisdiction of the subject-matter and the parties, a mere irregularity in the proceedings will not be inquired into or deemed sufficient to sustain exceptions on the purchaser's appeal because they do not in any manner affect the title of the purchaser. Taylor v. Monmonier, 120 Md. 101, 87 Atl. 513; Jencks v. Safe Deposit Co., 87 Atl. 1031; Offutt v. Jones, 110 Md. 233, 73 Atl. 629; Kennard v. Bernard, 98 Md. 513, 56 Atl. 793; Sloan v. Safe Deposit Co., 73 Md. 239, 20 Atl. 922; Newbold v. Schlens, 66 Md. 587, 9 Atl. 849; Benson v. Yellott, 76 Md. 159, 24 Atl. 451. The bill appears to have been filed under article 16, 198, of the Code of 1888, now section 228 of article 16 of Bagby's Code, and we think its averments were sufficient to give the court jurisdiction to pass the decree. The prayer of the bill was in the alternative for partition or sale of the real estate, if the same shall be found beneficial. It is as follows: That a sale or sales may be made of the lots of ground and improvements in Baltimore city and the proceeds divided under the direction of the court, or that partition of some or all of them may be made was also a prayer for general relief. The object of the bill was to have the property partitioned, and, if not susceptible of partition without loss or injury, then to have it sold. In Ballantyne v. Rusk, 84 Md. 650, 36 Atl. 361, a bill containing somewhat similar averments was held to contain the necessary jurisdictional facts required by the statute. Scarlett v. Robinson, 112 Md. 206, 76 Atl. 181; Campbell v. Lowe, 9 Md. 500, 66 Am. Dec. 339; Murphy v. Coale, 107 Md. 209, 68 Atl. 615. The proof was to the effect that the real estate was not susceptible of advantageous division without loss and injury, and it would be to the benefit and advantage of all parties that the same should not be divided but should be sold. The decree itself provides: (1) That this court will now take jurisdiction in this case of the administration of the trust created by the twelfth clause of the will of Thomas Kensett. (2) It appearing to the court that the real estate which consists of the lots of ground and improvements in Baltimore city, including the lot in the annex and including the several reversionary interests, is not susceptible of partition without loss and injury, and that a sale of the said property and a division of the proceeds, under the direction of this court, will be for the benefit, interest, and advantage of all the parties interested therein; that all and each of said lots and reversionary interests be sold; and that the Safe Deposit & Trust Company of Baltimore be and it is hereby appointed trustee to make said sale, and, as to any sale so made, the course and manner of its proceedings shall be as follows. In Ball v. Safe Deposit & Trust Co., 92 Md. 503, 48 Atl. 155, 52 L. R. A. 403, and Levering v. Gosnell, 115 Md. 582, 80 Atl. 1078, relied upon by the appellant, the decrees were different from the one here and they were decided upon a different state of facts. In Ball's Case, supra, we held that the decree was not in compliance with the statute because it provided for the future sale of a ground rent, not mentioned in the proceedings, and it was not shown that the sale was advantageous to the parties in interest at the time it was made. In the Levering Case, supra, it was held the court had no jurisdiction to decree the sale of the ground rent because the bill contained no prayer for a sale nor any of the jurisdictional allegations required by the statute. [3] By the decree in the case at bar, all and each of the lots, including the ground rent in question, are directed to be sold. It provides it shall sell any or all of said lots and reversionary interests at public or private sale at such times as it may deem most advantageous to the trust estate and persons interested therein, and with leave to the trustee to report to the court for its approval |