¶1 filed the following concurring opinion.
¶2 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.
¶3*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. Tbe sale was axithorized by virtue of the Act of 1862, ch. 156 as modified and found in sec. 243 of art. 16 of tbe Code. Tbe theory upon wbicb relief was granted was that at tbe time of tbe decree it appeared to be advantageous to tbe parties concerned that tbe land be sold and converted so that tbe proceeds would enure in like manner as by the original grant to tbe use of the same parties who would be entitled to tbe land sold. It is a perversion of tbe statute and an abuse of tbe decree for tbe land to remain unsold, as on this record, for fifteen years. There is no rational basis for tbe adoption of tbe fiction that testimony wbicb spoke as of tbe date of tbe decree would have tbe same evidential value fifteen years later. 'So, after such a delay, tbe trustee should not have proceeded to execute tbe decree without tbe fresh authorization of tbe chancellor upon new testimony showing tbe then parties in interest, and establishing that it would be to tbe advantage of all tbe parties concerned to make tbe sale at that time. Ball v. Safe Deposit & Trust Co., 92 Md. 503; Preston v. Safe Deposit & Trust Co., 116 Md. 211; Beggs v. Erb, 138 Md. 354.
¶4 (2) In tbe report of sale of all but 24.221 acres of tbe tract tbe trustee first brought to tbe attention of tbe court tbe conditions and restrictions wbicb affected both tbe tract sold and tbe portion reserved. Tbe nature of these conditions and restrictions will appear from tbe opinion. They were unusual for a trustee under a decree to make sale, and involved tbe permanent appropriation of all tbe land for particular uses in contradistinction to tbe general proprietary rights of an absolute estate in fee simple. Tbe imposition of tbe conditions and restrictions, although of an extraordinary nature in a sale by a trustee under decree, was within tbe power of tbe chancellor, but this power should not have been exercised or ratified, when initiated by tbe trustee, except upon it being established by proof submitted to tbe chancellor that tbe proposed conditions and restrictions were to *581 the manifest advantage of all the parties concerned and should be adopted as a part of the terms of the sale.
¶5 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.
¶6 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.