While concurring in the result, it is the writer's judgment that the opinion of the court should have explicitly disapproved the practice of a trustee (1) selling land under a dormant decree obtained by virtue of section 243 of article 16 of the Code without any action to have the court revive the decree, and (2) imposing building conditions and restrictions both upon the portion of the land sold and that unsold without having first applied for and obtained the court's authorization. *Page 580
1. In the instant case an entire tract of land of 191.508 acres was directed to be sold by a decree passed on January 24, 1905. The sale was authorized by virtue of the Act of 1862, ch. 156 as modified and found in sec. 243 of art. 16 of the Code. The theory upon which relief was granted was that at the time of the decree it appeared to be advantageous to the parties concerned that the land be sold and converted so that the proceeds would enure in like manner as by the original grant to the use of the same parties who would be entitled to the land sold. It is a perversion of the statute and an abuse of the decree for the land to remain unsold, as on this record, for fifteen years. There is no rational basis for the adoption of the fiction that testimony which spoke as of the date of the decree would have the same evidential value fifteen years later. So, after such a delay, the trustee should not have proceeded to execute the decree without the fresh authorization of the chancellor upon new testimony showing the then parties in interest, and establishing that it would be to the advantage of all the parties concerned to make the sale at that time. Ball v. Safe Deposit Trust Co.,92 Md. 503; Preston v. Safe Deposit Trust Co., 116 Md. 211; Beggsv. Erb, 138 Md. 354.
(2) In the report of sale of all but 24.227 acres of the tract the trustee first brought to the attention of the court the conditions and restrictions which affected both the tract sold and the portion reserved. The nature of these conditions and restrictions will appear from the opinion. They were unusual for a trustee under a decree to make sale, and involved the permanent appropriation of all the land for particular uses in contradistinction to the general proprietary rights of an absolute estate in fee simple. The imposition of the conditions and restrictions, although of an extraordinary nature in a sale by a trustee under decree, was within the power of the chancellor, but this power should not have been exercised or ratified, when initiated by the trustee, except upon it being established by proof submitted to the chancellor that the proposed conditions and restrictions were to *Page 581 the manifest advantage of all the parties concerned and should be adopted as a part of the terms of the sale.
The court had jurisdiction to pass the decree for sale, and its resuscitation, after fifteen years of non-observance, without further proof and previous authorization by the court, was, notwithstanding its gravity, an error of procedure, as was the imposition of the conditions and restrictions, and, therefore, neither error was jurisdictional. Consequently, it is too late for any one now to question for the first time the validity of the restrictions and conditions reported to the court and ratified by it in its confirmation of the trustee's first report of sale.
The mere fact that before sale of it by the trustee the residue of the tract vested in the remaindermen can in no wise relieve that residue from the conditions and restrictions, however irregularly imposed at the time of the original sale, provided the court had jurisdiction of the subject matter.