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PALMER v. SCHEID, JR. 
No. 77, September Term, 1960
 
Court of Appeals of Maryland
 
223 Md. 613; 166 A.2d 244; 1960 Md. LEXIS 539

 December  14, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  lane, traffic, southbound, highway, boulevard, northbound, crossover, rear, apron, short distance, matter of law, right of way, median strip, proceeded, collision, traveling, coming, feet, motor vehicle, crossway, contributorily negligent, motor vehicles, express terms, coming down, feet wide, starting, unobstructed, interruption, approaching, projecting

COUNSEL: James L. Wray, with whom were William J. McWilliams and McWilliams & Melvin on the brief, for appellant.

   William F. Mosner, with whom was Malcolm B. Smith on the brief, for appellee. 

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*614] [**245] The appellant-defendant, being dissatisfied with a judgment entered against him after an adverse jury verdict, in the Circuit Court for Anne Arundel County, for damages resulting from an automobile collision, has appealed.

   He contends that the appellee-plaintiff was contributorily negligent as a matter of law in failing to comply with the Code (1957), Article 66 1/2, Sections 227 and 233 (a), n1 and in failing to exercise reasonable care for his own safety.

 n1 Section 227. No person shall start a vehicle which is stopped, standing, or parked without giving adequate hand signal to oncoming traffic and until such movement can be made with reasonable safety.

   Section 233. (a) In general.  -- The driver of a vehicle shall come to a full stop as required by this article at the entrance to a through highway and shall yield the right of way to other vehicles approaching on said through highway.

[***4]

   On December 16, 1957, a dry, cloudy day, at about 2:45 [*615] P.M., the appellee Scheid and one Hall, both Internal Revenue Service agents, were traveling south on the Ritchie Highway. This thoroughfare has four lanes for traffic: two each for northbound and southbound traffic, with a median strip, six and one-half feet wide, in the middle.

   Scheid was driving a government-owned Ford Sedan.  At Ordnance Road, approximately a quarter of a mile north of the accident scene, he stopped in the right, or slow, lane at a red traffic light.  Traffic was heavy in both southbound lanes. While waiting for the light to change to green, he and his companion noticed a suspected liquor law violator at the wheel of a truck in front of them, also headed south.  After the light changed to green, the southbound traffic began to move, and, in a short distance, the suspect turned left into Cherry Lane. Scheid decided to follow him, but as there was no urgency, thought he would continue south for a short distance, turn around and return to Cherry Lane.

   He proceeded south for a short distance, remaining in the right lane, until he came to a crossover, which turned out to be the location of the[***5] accident.  Beginning at the crossover and running north, the southbound portion of the highway is broadened by a cement apron to accommodate traffic coming into the highway from the Harbor Tunnel Cut Off.  Scheid pulled over to his right onto this apron and stopped, in order to permit southbound traffic to clear from his rear before making his turn.

   From this point on, the testimony of the respective parties is conflicting in some of its aspects, but, for the purposes of this case, it must be considered in the light most favorable to the appellee.

   Scheid remained at a standstill on the apron for some 20 seconds, until all southbound traffic had cleared.  He looked to his rear, where his vision was unobstructed for about 300 yards to the crest of a hill, and there was no traffic in sight coming from the north toward him.  He turned his car to the east and proceeded to the crossover, where he was required to stop, because of northbound traffic. About six [**246] feet of his automobile was in the crossover, which left, approximately, ten feet projecting into the southbound lane. He remained in [*616] this position for some 20 seconds, and was just about to pull out into the[***6] northbound lane, when he glanced to his left and saw the appellant's southbound car in the fast lane coming down upon him.  There was no other southbound traffic in the immediate vicinity.  Before Scheid could drive his car from the path of the oncoming vehicle, the rear portion of his car was struck, and he was injured as a result of the collision.

    Officer Griffith, of the County Police Department, arrived at the scene within a few minutes after the accident.  He testified that he found no skid marks attributable to the appellant's car; the appellant told the witness that he did not see Scheid's car until it was too late to stop; and his reason for not seeing the car was that he was tuning his radio.

   Under the above circumstances, the appellant contends that the law of this State required the appellee to ascertain that traffic was clear in both the southbound and northbound lanes, so that he could uninterruptedly complete his turn.  He argues that the boulevard law (Section 233 (a)) was applicable, and the appellee was duty bound to yield the right of way all the way across the highway to all motor vehicles thereon, traveling either north or south. Furthermore, he claims that the[***7] provision of Section 227, stating that "[n]o person shall start a vehicle which is stopped * * * until such movement can be made with reasonable safety," likewise, required the appellee to be certain that he could complete his turn into the northbound lanes, without interruption, and, at the same time yield the right of way to all vehicles on the highway, either northbound or southbound.

   We do not find the argument persuasive.  We think our recent holding in Safeway Trails v. Smith, 222 Md. 206, 159 A. 2d 823, is authoritatively and conclusively decisive here.  In that case, as in this one, the operator of a motor vehicle [turning to the left over a crossway from a four-lane dual highway separated by a median strip] was not entering a through highway, but leaving one.  Judge Hammond, for the Court, stated, "[b]y its express terms, the boulevard law controls entrance onto the favored highway; exit from it is not mentioned." We held that the boulevard law was inapplicable; and observed that Maryland permits motor vehicles of [*617] certain lengths (which length often exceeds the width of the median strips) to be operated upon its highways, and allows left turns to[***8] be made over the crossways (in fact, the accommodation of left turns is their principal function), which, on occasions, necessarily result in a portion of a motor vehicle protruding into the boulevard lane about to be vacated, until the left turn can be completed.  We further held that the negligence, vel non, of the operator making the turn was properly submitted to the jury.  In the instant case, the appellee, as stated above, was not entering a boulevard; he was crossing to the lanes of traffic going in the opposite direction.  We have been referred to no authority, and have found none, that required him to make certain that he could complete his turn without interruption. He had ascertained that no vehicle was approaching from his rear for the full distance of his vision.  Under the circumstances, his conduct cannot be said to be contributorily negligent as a matter of law. And there is no inconsistency between what we have just said and anything that we held in the cases of Fowler v. DeFontes, 211 Md. 568, 128 A. 2d 395, Dorschel v. Tzomides, 214 Md. 341, 135 A. 2d 417, and Wallace v. Fowler, 183 Md. 97, 36 A. 2d 691.

   Our holding above makes it apparent that[***9] Section 227 adds little, if any, weight to the appellant's argument.  This section inhibits the starting of a stopped vehicle until the movement can be made with reasonable safety.  The questions of primary and contributory negligence were submitted to the [**247]jury, under the conflicting theories of the parties, both questions being resolved in favor of the appellee.  No exceptions were taken to the court's charge to the jury.  In the light of what we have already said (without repeating), it is obvious that there is nothing in this section of the Code that would impel a ruling that the appellee was guilty of contributory negligence as a matter of law.

   Judgment affirmed, with costs. 

EX PARTE IN THE MATTER OF AURORA FEDERAL SAVINGS AND LOANASSOCIATION 
No. 245, September Term, 1959
 
Court of Appeals of Maryland
 
223 Md. 135; 162 A.2d 739; 1960 Md. LEXIS 473

 July  1, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Order reversed, and cause remanded for further proceedings not inconsistent with this opinion.

CORE TERMS:  mortgage, auditor, mortgagee, mortgagor, decree, ratified, ratification, mortgaged, foreclosure, indebtedness, distributed, principal amount, foreclosure sale, principal sum, promptly, payment of interest, mortgaged property, case of default, lawful interest, date of sale, accounted, agreeing, proceeds of sale, foreclosure proceedings, entitled to interest, simple interest, money borrowed, actually paid, auction sale, real estate

COUNSEL: William F. Podlich, Robert F. Podlich and Walter P. Reese on the brief, for appellant.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Prescott, J., delivered the opinion[***3] of the Court.

OPINIONBY: PRESCOTT

OPINION: [*136] [**740] The sole question involved in this appeal is whether a mortgagee in Anne Arundel County is entitled to interest upon the unpaid principal amount of its claim against the mortgagor until the ratification of the auditor's report, or does such interest cease after the date of the sale of the mortgaged premises.  After foreclosure proceedings and a sale of the real estate involved, the chancellor overruled exceptions by the appellant to an auditor's account that allowed it interest upon the unpaid principal of its claim until the date of the auction sale of the mortgaged property, but denied its claim for interest thereon until the ratification of the auditor's report, which occurred several months later.  From the final order of ratification of said account, the appellant noted this appeal.

   In Maryland, different methods have been employed, from time to time, for the foreclosure of mortgages. In early times, the only remedy of the mortgagee was by what was termed a "strict foreclosure": a proceeding whereby the mortgagee, in case of default by the mortgagor, foreclosed the equity of redemption.  No sale of the mortgaged property[***4] took place, but the equity court determined the amount due the mortgagee and passed a decree naming a date for the sum named in the decree to be paid, or the mortgagor's right to redeem would be forever taken away.  Ginsberg and Ginsberg, Mortgages and Other Liens, p. 278, and cases there cited.

   Beginning with Chapter 58 of the Acts of 1784, the Legislature [*137] has by successive statutes n1 authorized sales of mortgaged premises by court decree (formal proceedings), by assent decrees authorizing sales, and sales under powers of sale contained in the mortgages. The present statutes and Rule that relate to mortgages and regulate their foreclosure are, for the main part, Code (1957) and Cum. Supp. (1959), Article 66, and Rule 1391.

n1 For some of the earlier statutes, see Ch. 72 of the Acts of 1785; Ch. 203 of the Acts of 1825; Ch. 192 of the Acts of 1826 and Ch. 249 of the Acts of 1836.

   We find no previous decision of this Court, no statute nor any rule of court that deals directly with and controls[***5] the question here involved.  We are informed that the practice relative to the same varies in different sections of the State: some allowing interest on the principal indebtedness until the ratification of the auditor's report; others stopping the interest on the date of the sale of mortgaged property. In seven counties, there is provision for the continuation [**741] of the interest named in the mortgage for a period of 60 days after the sale or until the ratification of the auditor's account, whichever shall occur first.  Code (Cum. Supp. 1959), Article 66, Section 8.

   In the instant case, the proceedings were instituted under the provisions of Code (1957), Article 66, Section 6.  This section provides, inter alia, that "the proceeds of such sales [the sales of mortgaged premises] shall be accounted for, to, and be distributed by, said court, in the manner usual in cases of sale under decrees of said court." The mortgage instrument herein calls upon the mortgagors to repay the money borrowed "in installments with interest thereon from the date hereof * * * until the whole of said principal sum and interest shall be paid * * *." (Italics added.) The question, therefore, [***6] in the absence of any statute, rule of court or decisional direction, narrows to whether the principal sum due to the mortgagee was "paid," in the eyes of the law, when the auction sale took place, or when the auditor's account was ready for ratification.

   The early case of Ellicott v. Ellicott, 6 G. & J. 35, dealt with the question of interest after a judicial sale.  There, a [*138] creditor's bill was filed and the real estate of a deceased person sold to pay his debts.  The Court stated that it had been the regular practice in auditing accounts after sales in creditor's bills in the Chancery Court to calculate interest on claims against the deceased up to the day of sale, from which time the claimants on the amounts thus ascertained become, as it were, creditors of the funds arising from the sales.  If the creditor has his debtor's property sold for cash, no interest is received by the creditor after the day of sale; but, if on credit, and consequently carrying interest, (the delay being for the benefit of the debtor) the creditor is entitled to interest on his claim, the principal amount of the decedent's indebtedness to him plus interest to the date of sale, from the [***7]date of sale until the credit portion of the proceeds is received by the trustee.  And when a sale is made for part cash and partly on credit, the same principles which regulate the rights of creditors in sales simply for cash, or for credit, are carried out.

   In Mahoney v. Mackubin, 54 Md. 268, 277, although the question of the method of allowing interest does not seem to have been raised, the Court stated that it found no error in the mode in which the account dealt with interest.  The auditor had calculated interest on the mortgage debt down to the day of sale, and the Court pointed out that the order ratifying the account would contain the usual clause directing the party who made the sale to apply the proceeds of sale according to the account, "with a due proportion of interest as the same has been or may be received." This latter provision, of course, permitted the allowance of interest after the date of the sale, according to the method stated in the Ellicott case, supra.

   The provision in Section 6, quoted above, which provides that "the proceeds of such sales shall be accounted for, to, and be distributed by, said court, in the manner usual in cases of sale under[***8] decrees of said court" does not, we think, prevent parties to a mortgage from agreeing upon the payment of lawful interest after a foreclosure sale. The provisions of Article 66 of the Code relating to the foreclosure of mortgages do not provide for the exercise of a special jurisdiction by [*139] the equity courts of this state, but offer a summary, expeditious and usually less expensive mode of exercising a general jurisdiction of said courts.  Cockey v. Cole, 28 Md. 276; Warehime v. Carroll County Bldg. Ass'n, 44 Md. 512; Ivrey v. Karr, 182 Md. 463, 34 A. 2d 847. Cf. Walsh v. Jefferson Federal Savings and Loan Association, 216 Md. 131, 138, 139 A. 2d 847. One of the main objects of Sections 5, 6 and 7 of said Article 66 is to bring sales made by their authority and the resulting equity proceedings under the cognizance and guidance of the court, and such proceedings are to be conducted and the validity of the sales tested as ordinary sales made by a trustee appointed by a [**742] decree of the court.  Walsh v. Jefferson Association, supra; Ivrey v. Karr, supra, 182 Md. at page 469. Cf. Chilton v. Brooks, 69 Md. 584, 587, 16 A. 273; Bachrach v. [***9]  Washington United Cooperative, 181 Md. 315, 319, 29 A. 2d 822; Albert v. Hamilton, 76 Md. 304, 308, 25 A. 341.

   In Quillen v. Kelley, 216 Md. 396, 408, 140 A. 2d 517, we pointed out that when covenants are placed in a mortgage which go beyond providing for the creation of a lien, they necessarily are the result of an agreement between the parties.  In Mobray v. Leckie, 42 Md. 474, 476, a mortgage foreclosure case, the Court upheld and enforced a provision in the mortgage that in case of default in the payment of interest, the whole remaining indebtedness should become due and payable.  Also, provisions for the payment of an attorney's fee for collecting the debt and commissions to the parties making sale were held to be valid in Gaither v. Tolson, 84 Md. 637, 36 A. 449. And, insofar as it has come to our attention, it seems to be the practice, generally, for the parties to a mortgage to agree upon the commissions to be allowed the parties making sale, in case of default; although those commissions are not the same as the commissions granted to trustees under ordinary sales by decree. We conclude, therefore, that the requirement in Section 6 that the proceeds shall[***10] be distributed in the manner usual in cases of sales under decree does not prohibit the parties to a mortgage from agreeing that lawful interest on the mortgagor's indebtedness shall continue [*140] after the date of foreclosure sale; and we further conclude that said requirement does not vary, by implication, such an agreement, so as to cut off interest on a mortgage after the date of the sale.

   It is stated in 59 C. J. S. Mortgages, § 179 b: "The time during which interest on a mortgage runs is sometimes regulated by statute; but in the absence of statute the agreement of the parties controls." Cf. 30 Am. Jur., Interest, § 68.  We have no such statute in Maryland, except as noted above.

   Contracts for the payment of interest are construed by the same rules of construction as are applied to contracts generally.  30 Am. Jur., Interest, § 5. The agreement between the parties in this case is clear and unambiguous.  It calls for the payment of interest by the mortgagor from the date of the mortgage "until the whole of said principal sum and interest shall be paid." It is universally recognized that a mortgagee in this jurisdiction is not actually paid his claim upon[***11] the date of the sale of the mortgaged premises. The sale must be reported to, and ratified by, the court; and the auditor must prepare his account, which must, likewise, be ratified before the proceeds of sale may be safely distributed. With this practice so generally known and almost invariably followed, it seems to us that it would place a strained and somewhat tortured construction upon the mortgagors' and mortgagee's agreement to hold that the interest was, implicitly, stopped upon the date of the foreclosure sale. In Maryland, since early days, the tendency of the Court has been to treat interest as just compensation due.  Robert C. Herd & Co., Inc. v. Krawill Machinery Corp., 256 F. 2d 946, 952 (4th Cir. 1958); Picking v. Local Loan Co., 185 Md. 253, 265, 44 A. 2d 462. Cf. Affiliated Dist. Brands Corporation v. R. W. L. Wine and Liquor Co., 213 Md. 509, 132 A. 2d 582. We think the agreement called for the payment by the mortgagors of interest on the principal amount of the mortgage claim, plus simple interest at the rate named in the mortgage until the auditor's report, if promptly made, could be ratified; and, as the subsequent delay has been caused by no fault[***12] of the mortgagee, it should be allowed interest at the rate [*141] named in the mortgage until the new auditor's account, promptly stated, can be ratified.

   Order reversed, and cause remanded for further proceedings not inconsistent with this opinion. 

STATE ROADS COMMISSION OF MARYLAND v. JOHNSON et ux. 
No. 182, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 493; 161 A.2d 444; 1960 Md. LEXIS 362

 June  8, 1960, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed July 6, 1960, Denied August 2, 1960.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree reversed and case remanded for the passage of a decree declaring that the appellant is vested with fee simple title to the strip in question, costs to be paid by the appellees.

CORE TERMS:  railroad, perpetuity, absolute estate, easement, charter, fee simple, inquisition, duration, condemned, quantity, valued, canal, occupation, condemnation, strip, abandonment, conveyed, juror, tavern, strip of land, right of way, conveyance, conferred, correctness, deed, fee simple absolute, incorporating, acquisition, valuation, condemner

COUNSEL: William J. McWilliams, Special Attorney, with whom were C. Ferdinand Sybert, Attorney General, and Joseph D. Buscher, Special Assistant Attorney General, on the brief, for the appellant.

   Linwood L. Clark and C. Maurice Weidemeyer for the appellees.

JUDGES: Henderson, Hammond, Prescott and Horney, JJ., and Tucker, J., Associate Judge of the Eighth Judicial Circuit, specially assigned.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*495] [**445] This appeal is from a decree declaring that the appellees are vested with fee simple title to a strip of land lying within the old line of the Washington, Baltimore & Annapolis Electric Railroad Company between Annapolis and Crownsville.  The decree further declares that the Annapolis and Elkridge Railroad Company, [***4] the predecessor in title of the W., B. & A., acquired only "an easement for railroad purposes" which was lost "upon the abandonment of the use of said easement for railroad purposes in 1935."

   The facts are stipulated or undisputed.  The appellees purchased in 1944 a tract of land containing some 108 acres.  Their title is derived, through mesne conveyances, from Leonard Iglehart who owned the tract in 1838.  In that year a strip across the tract, described by metes and bounds, was condemned by the Annapolis and Elkridge Railroad Company.  Thereafter, the Railroad and its successors laid tracks and operated a railroad over them until 1931, and the operation was continued under a receiver until 1935, when the railroad assets were sold to a Bondholders Protective Committee.  In 1936, title was transferred to Washington, Baltimore and Annapolis Realty Corporation.  On September 11, 1941, title to the strip in question was conveyed to the State Roads Commission for highway use, pursuant to negotiations completed in 1938, but the questions now raised were not brought to an issue until 1957, by a bill for declaratory decree.

   The first question presented is as to the extent of the interest[***5] acquired in the condemnation [**446] proceeding.  As the Chancellor stated, if the Railroad acquired an absolute and unconditional fee simple title, that is the end of the case.  If it acquired only an easement, further questions are presented as to whether that easement was lost by abandonment and reverter, when the operation of the railroad was discontinued and the rails were removed in 1938, if not before, and, if not, whether the proposed use as a public highway was fairly within the scope of the easement originally acquired for railroad purposes.

   [*496] The Annapolis and Elkridge Railroad Company was incorporated by Chapter 298, Acts of 1836, passed March 21, 1837.  This charter, by reference, conferred upon it the powers contained in Chapter 123, Acts of 1826, passed February 28, 1827, incorporating the Baltimore and Ohio Railroad Company. Section 15 of the B. & O. Charter authorized the company, if it could not agree with the owner of any land wanted for the construction of the railroad for the "purchase or use and occupation of the same," to apply to a justice of the peace who "shall thereupon issue his warrant" to the sheriff to summon a jury to meet on the land[***6] to fix the damages.  The sheriff was directed to administer an oath, to each juror selected, to "impartially value the damages which the owner * * * will sustain by the use or occupation of the same required by the company", and reduce their inquisition to writing.  Section 15 provided that such inquisition "shall describe the property taken, or the bounds of the land condemned, and the quantity or duration of the interest in the same, valued for the company, and such valuation, when paid or tendered * * *, shall entitle the said company to the estate and interest in the same thus valued, as fully as if it had been conveyed by the owner * * * of the same * * *."

   It is conceded that the language of the A. & E. Charter validly conferred upon it, by reference, all of the powers granted by section 15 of the B. & O. Charter. It is an historical fact that the construction of the pioneer B. & O. Railroad was a highly favored enterprise, as evidenced by the grant of wide tax exemptions conferred in other sections of its charter. It was contemplated that the Railroad would not only lay tracks for the transportation of freight and passengers but also construct stations, terminals and warehouses. [***7] It would have been surprising to find the Legislature limiting its powers to acquire "land, earth, timber, gravel, stone, or other materials, or any improvements which may be wanted for the construction or repair of any of said roads, or of any of their works," as stated in section 15, to mere easements of passage.  While the form of oath in section 15 quoted above refers to "the use or occupation of the same required by the company," the jury was directed in the same paragraph to describe in the inquisition "the property taken, or the bounds [*497] of the land condemned, and the quantity or duration of the interest in the same, valued for the company".  Upon payment or tender, it was declared that the company should become entitled "to the estate and interest in the same thus valued, as fully as if it had been conveyed by the owner * * *." (Italics supplied.) We think it is clear that the power granted to the condemner under this section was not confined to the acquisition of mere easements but authorized it, in the exercise of its sound business judgment as to what was necessary or desirable, to acquire complete or fee simple title.  Cf. Ligon v. Potomac Elec. Pow. [***8]  Co., 219 Md. 438, 439, and cases cited.

   The record shows that on June 13, 1838, jurors were summoned by a justice of the peace, at the instance of the A. & E. Railroad Co., to meet on the lands of Leonard Iglehart and value the damages, if any, sustained "by the use and occupation of the same required by said Company.  * * * as also all other damages the owners thereof shall sustain by construction of the * * * Road in over and through said lands * * *." [**447] The jurors declared in their inquisition upon oath that they condemned "so much of the land represented as belonging to the said Leonard Iglehart * * * as of an absolute estate in perpetuity as is contained within the lines of the annexed plat * * *." The valuation found was $2,437.50, for about twenty acres.  We may assume that a valuation of about $120 per acre, for undeveloped land in 1837, was a liberal award, even for a complete taking, but the question as to the "quantity or duration of the interest" taken turns, we think, upon the key language in the inquisition describing the taking as "an absolute estate in perpetuity." We think that language can only be construed to describe a "fee simple", or as it is sometimes[***9] called, a "fee simple absolute".

   In Gavit's Notes on Blackstone's Commentaries, p. 281, the learned author states: "The concept of 'estates' is one dealing with the legally permissible interests in land as measured by a time element.  Thus the concept of a fee simple estate is that the owner owns the interests in relation to the property involved from the moment of his original ownership to infinity in the future. In this aspect of it, it is the greatest [*498] estate which one may enjoy in property and is in common language an absolute and unqualified ownership of the interests involved." In 4 Kent's Commentaries (14th ed.), p. 5 it is said that fee simple "is an estate of perpetuity, and confers an unlimited power of alienation, and no person is capable of having a greater estate or interest in land." In 31 C.J.S., Estates, § 8, p. 19, it is said that "An estate in fee simple is the greatest estate * * * which a person can possess in landed property, being an absolute estate in perpetuity." (Italics supplied.) The same statement is made in Black's Law Dictionary (2d ed.), p. 487.  These definitions have been quoted in cases too numerous to mention.  While it is true[***10] that the words "in perpetuity", standing alone, might not be controlling, since they may be used to describe the duration of a lesser estate, Cf. Taylor v. Baltimore, 45 Md. 576, 578, we think the phrase "absolute estate in perpetuity" is synonymous with "fee simple absolute".  In Water Power Co. v. Street Railroad Co., 172 U.S. 475, 491, the Supreme Court said: "In construing statutes words are taken in their ordinary sense.  [The meaning of] the word 'absolute' * * * [in] [i]ts most ordinary signification is 'unrestricted' or 'unconditional.' Thus, an absolute estate in land is an estate in fee simple." Cf. Barnett v. Barnett, 117 Md. 265, 268.

   Any lingering doubts as to the correctness of this construction are resolved, we think by the Maryland case of Bond v. Murray, 118 Md. 445. In that case this Court dealt with questions raised in an ejectment case brought by surviving trustees of the Chesapeake and Ohio Canal Company against the occupier of property in Cumberland acquired by the Canal Company in a condemnation proceeding in 1837.  Section 15 of its charter (chapter 79, Acts of 1824) contained essentially the same provisions as the B. & O. Charter. The[***11] sheriff's jury was directed "to describe and ascertain the bounds of the land by them valued, and the quantity and duration of the interest and estate in the same, required by the said company for its use; * * * and on payment * * * the said company shall be seized of such land as of an absolute estate in perpetuity, or with such less quantity and duration of interest or estate in the same; or subject to such partial or [*499] temporary appropriation, use or occupation as shall be required and described as aforesaid, as if conveyed by the owner of them; * * *." A judgment for the defendants was reversed, and a new trial awarded, because of error in the action of the lower court in overruling the plaintiffs' demurrer to a plea on equitable grounds.  That plea set up claims of adverse possession, which the court held could be shown under the general issue [**448] plea, if sustainable at all in view of the language of a later statute, and abandonment. The court noted (p. 452) that "The plea admits the title of the Chesapeake and Ohio Canal Company to the land in controversy, and that it was acquired by virtue of certain condemnation proceedings, as asserted in the declaration." [***12] The record in the case shows that the inquisition valued the land and damages at $250, "said land so valued and described * * * being required by the said Company for its use as an absolute estate in perpetuity * * *." The court said (p. 453): "It seems to be clear, then, that under the charter of the Canal Company, and the several Acts passed subsequent thereto, that the Canal Company holds a fee simple title to the lands by virtue of the condemnation under the Act, and are seized of the lands so taken as 'an absolute estate in perpetuity.'"

   The appellees argue that there was no controversy about the title and that the court's remark was not even a dictum, but the statement of a conceded fact. It is true that the issue of fee simple vel non was not directly presented or discussed in the opinion, but there is a discussion in the appellant's brief of the point that the claim of abandonment, asserted in the plea on equitable grounds, could not be sustained because the Canal Company acquired a fee simple title and not a mere easement. Hence, the court's statement was germane, and may well have been intended, as in the discussion of adverse possession, to guide the trial court[***13] upon retrial of the case.  If that was the purpose, the statement can hardly be regarded as dictum.  The question of title was put in issue by the general issue plea.  The court did not state its conclusion as a concessum, but on the contrary, the statement indicates that the judicial mind was directed to the quantum of title to be ascribed to the phrase "absolute estate in perpetuity".  We [*500] are informed that on remand, the trial court granted a preemptory instruction incorporating the language quoted.  There was no further appeal.

   There can be little question but that at or about the time of the adoption of the charter of the C. & O. Canal Co., the phrase "absolute estate in perpetuity" was in general use to describe a fee simple absolute, as distinguished from a terminable fee or easement. See 2 Lewis, Eminent Domain, (3d ed.), § 450, citing Haldeman v. Pennsylvania R. R. Co., 50 Pa. St. 425, 430, 437, and Wyoming Coal & Transportation Co. v. Price, 81 Pa. St. 156, 173. In these cases it was squarely held that under canal charters adopted in 1826, containing the phrase in question, the condemners acquired a fee simple title that did not lapse[***14] through misuse.

   The appellees rely strongly upon the case of Hamilton v. Railroad Co., 1 Md. 553. In that case the company had condemned a certain parcel of land in 1838, upon which it had erected a station subsequently used in part as a tavern. The questions posed were whether the complainant, claiming title under the condemnee, was entitled to the building because the land on which it stood was not necessary for the purposes of the Company, and, if not, whether he was entitled to an injunction to prevent the use of the building as a tavern. The court held that the building was reasonably necessary for the accommodation of passengers.  The court said (p. 567): "But it is contended, that admitting the land was properly condemned, and the house was erected for a legitimate purpose, it has been, and still is, used as a tavern, in which spirituous liquors are sold; which is such an illegitimate and improper use of the building, that the company have forfeited all right to the same, and the land, with the house, have reverted to the complainant, as the owner of the fee-simple title; the company under the condemnation, having acquired nothing more than a right to the land, for the[***15] legitimate, necessary purposes of their road; which gave them simply an easement." We think it is [**449] obvious that the statement last quoted was merely the contention of counsel, and not a holding by the court. Indeed, the court went on to say that it would not follow that there was a forfeiture or abandonment, [*501] even "If it be admitted, that the relative rights of the parties in regard to title, under the inquisition, are as here stated".  It requires no citation of authority that a point assumed by the court, as immaterial to the decision of the case, is not a decision or holding.

   The appellees further contend that the court's statement (p. 569) that "The occupation of the house in part as a tavern, does not deprive him of the land on which it stands" recognized that the complainant held title.  Here again, the context makes it clear that the court was merely assuming, without deciding, the correctness of the complainant's contention.  The paragraph starts with the statement "Assuming the correctness of the position * * *." Denial of an injunction was affirmed on the ground that "He has not shown any special injury or damage to himself."

   The appellees also rely[***16] upon the case of Hodges v. Owings, 178 Md. 300. In that case there was a conveyance to a railroad company in consideration that it "do locate its Railroad through, in and upon lands owned by" the grantor, and in further consideration of one dollar.  The deed conveyed a strip sixty-six feet wide, "together with the right to divert streams of water for Railroad purposes, and to take and use any stone or timber or other material within the limits of said strip of land as said Railroad is now located." The deed also released all damages that "may or might accrue * * * for or by reason of the appropriation and occupancy of said strip of land * * * for use of said Railroad".  The court construed the grant as an "easement for railway purposes and use only".  It was pointed out that if there had been an intention to convey a fee, the grant of the land would have carried with it the right to use materials found on the strip, "without leave or license from the grantor or any one else".  The conveyance was said to be "a gift of this piece of right of way".  There was no language in the deed comparable to the expression "absolute estate in perpetuity" found in the condemnation in the instant[***17] case. We think the case is readily distinguishable.

   Some of the commentators on the subject take the view that where a condemnation is for the purpose of a railroad [*502] right of way there is a presumption that the grant is limited to that use.  See 3 Nichols, Eminent Domain (3d Ed.), § 11.1; 3 Tiffany, Real Property (3d Ed.) § 772; and Clark, Covenants and Interests Running with Land, p. 65.  Many cases are collected in an exhaustive note in 132 A. L. R. 142, where the commentator attempts to reconcile the apparent conflict in the cases on the basis of whether the grant is in terms of land or a mere right of way.  In the instant case we think any presumption arising from the general purpose of the acquistion is overcome by the facts that there was no limitation imposed by the Charter, the condemnation award did not contain the language sometimes found in the cases, "for railroad purposes only", and the land taken was described by metes and bounds and not as a right of way. Cf. Richfield Oil Corp. v. Chesapeake & Curtis Bay Railroad Co., 179 Md. 560, 569-572, construing "rights of way for railroad purposes" as conveying an easement under the circumstances, [***18] and Potomac Edison Co. v. Routzahn, 192 Md. 449, 453, where there was an express reverter clause of a right of way, in the event that the railroad use was discontinued.  Finally, we think the reference to the quantity and duration of the interest taken "as of an absolute estate in perpetuity" effectually negatives an intention to limit the taking to an easement.

   Since we hold that the Annapolis and Elkridge Railroad Company acquired an absolute fee simple title to the property [**450] in question, it is unnecessary to discuss the other questions argued.  It is not contended that such a title would be divested, by reverter, upon conveyance to a third party, even for purposes other than the operation of a railroad.

   Decree reversed and case remanded for the passage of a decree declaring that the appellant is vested with fee simple title to the strip in question, costs to be paid by the appellees. 

BRADY v. STATE 
No. 204, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 442; 160 A.2d 912; 1960 Md. LEXIS 355

 May  19, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson and Evans, JJ.

DISPOSITION: Appeal dismissed.

CORE TERMS:  sentence, new trial, unsigned, coram nobis, constitutional right, statutory remedies, common law, challenging, robbery, reward, Post Conviction Procedure Act, writs of habeas corpus, sentence of death, motion to strike, right of appeal, order refusing, oral statement, direct appeal, imprisonment, consolidate, prejudicial, overruling, reviewable, purported, aggrieved, strangled, abrogate, combined, formerly, murder

COUNSEL: E. Clinton Bamberger, with whom was George B. Woelfel on the brief, for the appellant.

   Joseph S. Kaufman, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Stedman Prescott, Jr., Deputy Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*443] [**913] John L. Brady (Brady) and Charles D. Boblit (Boblit) were indicted for the murder of William Brooks committed in the perpetration of a robbery. Brady was tried first before a jury.  Boblit was tried by the court sitting without a jury.  Both were found guilty of murder in the first degree and sentenced to death.  The evidence being sufficient to sustain the judgments, both convictions were affirmed by this Court in Boblit v. State, 220 Md. 454, sub nom. Brady v. State, 154 A. 2d 434 (1959).

   In extra-judicial[***4] statements and at his trial, Brady admitted participation in the robbery, but denied that he had [*444] killed the victim.  His claim was that Boblit was the actual murderer.  It was for this reason that counsel for Brady in his argument to the jury, though admitting that the accused was guilty of murder in the first degree, plead with the jury to add to its verdict in that degree the words "without capital punishment." The jury declined to do so.

   [**914] On the appeal in Boblit v. State, supra, the sole contention raised on behalf of Brady was that his confession had been obtained by force and a promise of reward. It was conceded, however, that he had not been mistreated by the police.  We held that the trial court was not in error in accepting the denial by the police that a promise of reward had been made.

   At the subsequent trial of Boblit, the State offered as evidence a transcription of what purported to be an oral statement made by Boblit to the police on July 9, 1958.  The unsigned statement, after setting forth that on July 2, 1958, he (Boblit) had told the police that Brady had strangled William Brooks and that he wanted to change his story, goes on to say, [***5] among other things, that at the suggestion of Brady he (Boblit) "took and twisted * * * [his] shirt sleeve and choked him [the victim]," but he concluded by saying that "[i]t was his [Brady's] idea to hold him up and not mine and it was his idea to strangle him; I wanted to shoot him." The statement was excluded by the trial court upon objection because it was not signed by Boblit.  Later on in the trial Boblit testified -- as he had originally stated in his signed statements -- that Brady had strangled William Brooks and that the unsigned statement was "not true."

   The unsigned statement was in the possession of the State when Brady was tried, but it was not offered in evidence; nor was counsel for Brady then informed of its existence.  Brady claims he did not know anything about the statement until after his conviction had been affirmed by this Court.  It came to the attention of one of Brady's counsel when he was reviewing the transcript of Boblit's trial preparatory to making a clemency plea to the Governor on behalf of Brady.  When requested, in October of 1959, a copy was supplied by the State.

   On November 12, 1959, using the unsigned statement as [*445] the sole [***6]basis for his motion, Brady moved the court to "set aside the verdict and the sentence and to grant him a new trial" on the ground that "evidence material to his defense ha[d] been newly discovered since his trial." When the trial court denied the "motion for a new trial" for the reason that it had found "nothing in the trial of the case, or in any matter subsequently submitted to the court which was prejudicial to the rights of the defendant Brady," this appeal was taken.

   Brady, asserting denial of his constitutional right to due process, contends that his conviction of murder in the first degree was vitiated by the failure of the State to disclose the unsigned statement either before or at his trial.  On the contrary, the State, claiming that the statement could not have been used as evidence for any purpose on behalf of Brady even if it had been known to him, contends that failure to disclose the statement -- which had not been intentionally suppressed -- was not prejudicial. We think the questions presented are not properly before us on this appeal.

    The pleading as filed combined a motion for a new trial with a motion to set aside the judgment and sentence. Whether the motion[***7] to strike was intended to invoke the power of the trial court to correct the sentence pursuant to the authority conferred by Maryland Rule 744 a by striking out an illegal sentence and imposing a legal one, or whether the motion was intended to be one to strike out or reduce the sentence pursuant to the power conferred by Rule 744 c, is by no [**915] means clear.  But, since we must affirm or dismiss this appeal in any event for other reasons, the nature of the motion to set aside the judgment and sentence is relatively unimportant.

   If the motion is treated as one for a new trial, as the trial court did, it is clear that the action of that court in overruling it is not reviewable by this Court.  Madison v. State, 205 Md. 425, 433, 109 A. 2d 96, 99 (1954). See also Colter v. State, 219 Md. 190, 148 A. 2d 561 (1959) ["an appeal will not lie from an order denying a new trial, at least where it is not claimed that there was an abuse of discretion"].  On the other hand, if the motion is treated as one to strike out a judgment and sentence, it is equally clear that the provisions [*446] of the Post Conviction Procedure Act (P. C. P. A.) referred to below bar a direct[***8] appeal to this Court from an order refusing the motion.

   There is only one way in which Brady may effectively obtain a review by this Court of his claim that he was deprived of his constitutional right to due process, and that is by instituting a proceeding for relief under the provisions of the P. C. P. A., codified as Code (1959 Cum. Supp.), Art. 27, §§ 645A-645J. The pertinent parts of § 645A, supra, read as follows:

   "(a). Any person convicted of a crime and incarcerated under sentence of death or imprisonment, * * * who claims that the sentence or judgment was imposed in violation of the Constitution of the United States or the Constitution or laws of this State, or that the court * * * was without jurisdiction to impose the sentence, or that the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding * * * to set aside or correct the sentence, provided the alleged error has not been previously and finally litigated or waived in the proceedings[***9] resulting in the conviction, or in any other proceeding that the petitioner has taken to secure relief from his conviction.

   (b). The remedy * * * is not a substitute for, nor does it affect any remedies which are incident to the proceedings in the trial court * * *, or any remedy of direct review of the sentence or conviction.  A petition for relief * * * may be filed at any time.  Hereafter n1 no appeals to the Court of Appeals of Maryland in habeas corpus or coram nobis cases, or from other common law or statutory remedies which have heretofore been available for challenging the validity [*447] of incarceration under sentence of death or imprisonment shall be permitted or entertained * * *." [Emphasis added.]

n1 The P. C. P. A. took effect June 1, 1958.

   As was pointed out by Judge Henderson in the recent case of State v. D'Onofrio, 221 Md. 20, 155 A. 2d 643 (1959), in quoting a comment by the Commissioners who prepared the Uniform Post-Conviction Act, "[t]he aim of this section [645A[***10] in the Maryland statute] is to bring together and consolidate into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence * * *." [Emphasis added.]

   While the P. C. P. A. did not abrogate the remedies formerly available under [**916] writs of habeas corpus and coram nobis and other common law and statutory remedies, it clearly took away the right of appeal from an order denying any of them.  The act further provides, however, that "any person, including * * * [the State], aggrieved by the order * * * passed in accordance with * * * [the act]," may apply to this Court within a 30-day period for leave to prosecute an appeal.  See § 645I, supra.

   For the reasons stated this appeal will be dismissed, but without prejudice to the appellant to seek post conviction relief.

   Appeal dismissed. 

WEST RIDGE, INC. v. McNAMARA et al. 
No. 210, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 448; 160 A.2d 907; 1960 Md. LEXIS 356

 May  19, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree reversed, with costs, and bill dismissed.

CORE TERMS:  rezoning, zoning, tract, shopping center, reclassification, acre, debatable, legislative action, shopping, planning, traffic, comprehensive zoning, vicinity, recital, piecemeal, map, subject property, public hearing, acre tract, aggregate, commercialization, recommendation, recommended, residential, chancellor, interfere, adjacent, rezoned, rezone, substantial change

COUNSEL: Albert J. Goodman and W. Lee Thomas, with whom were Kenneth C. Proctor and Proctor, Royston & Mueller on the brief, for appellant.

   Eugene M. Childs, with whom were Childs & Bald on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*450] [**908] [***5] This is a shopping center zoning case in which the Circuit Court for Anne Arundel County held the reclassification of 18.5 acres of land from Agricultural to Light Commercial and of .6 acre from Agricultural to Heavy Commercial was invalid.  The appellant, West Ridge, Inc., is the owner of the land; the appellees are neighbors who objected to the reclassification. Their standing to sue is conceded.

   In July, 1958, West Ridge bought a tract of about 56 acres near Macey's Corner, which is roughly eight miles north of Annapolis.  The property lies on the east side of the Ritchie Highway.  This is a dual north-south highway which has two lanes for traffic in each direction, divided by a median grass plot, and a wide shoulder on each side.  At the south end of the tract McKinsey Road intersects the Ritchie Highway, and near the north end the Arundel Beach Road enters, but does not cross the Ritchie Highway.  In addition, the Old Annapolis Boulevard crosses the Ritchie Highway diagonally in a more or less southwest-northeast direction at what may be called the north end of Macey's Corner.

   In August, 1958, West Ridge filed a petition for the reclassification [*451]of its land, which[***6] was then classified as Agricultural. n1 For that part of the land fronting on the Ritchie Highway, Commercial zoning was sought -- Heavy Commercial for a small area at each end and Light Commercial for the larger area between these two, on which it was proposed to construct a shopping center. For the greater part of the 56-acre tract -- lying to the east of and behind the proposed Commercial areas -- a Cottage Residential reclassification was sought.  This was granted, and it is not under attack in this suit.  The controversy centers on the areas reclassified as Light and Heavy Commercial.

n1 All properties not otherwise classified at the time of the adoption of the original County zoning map in 1952 fell into the Agricultural classification. See American Oil Co. v. Miller, 204 Md. 32, 102 A. 2d 727.

   There was a public hearing before the County Planning and Zoning Commission (the Commission) on August 21, 1958, at which both the proponents and the opponents were heard.  On August 27, 1958, the Commission[***7] recommended (by a 3-1 vote, the County Commissioner member not voting) to the Board of County Commissioners of Anne Arundel County that the West Ridge application be approved.  There was another public hearing before the County Commissioners, and a relatively small change was made in the West Ridge proposal by which the proposed rezoning of one of two tracts as Heavy Commercial was dropped.  On November 13, 1958, the County Commissioners adopted resolutions, which (in addition to rezoning part of the tract from Agricultural to Cottage Residential) rezoned the 18.5 and .6 acre tracts fronting on the Ritchie Highway from Agricultural to Light Commercial and Heavy Commercial, as above stated.

   The County Commissioners' resolution approving the West Ridge Commercial reclassification contained recitals: (a) that "the Board of County Commissioners finds that conditions have changed substantially and are continuing to change in the vicinity of the [subject] property since the adoption of the Comprehensive Zoning Ordinance [**909] on July 1, 1952, necessitating additional commercial uses and the proper zones in which they may be located;" (b) that "the Board is of the [*452] opinion[***8] that the property * is a suitable and logical location for the type uses proposed;" (c) that "the Board feels that the development of the proposed commercial facilities in general accord with the plans submitted * * * will not be detrimental but will be beneficial to the area and to the County as a whole;" and (d) that "the Board is of the opinion that these changes in zoning will cause no devaluation of adjoining properties, especially since the subject properties are abutted on three sides, except for an existing commercial zone, by the petitioner's property and fronts on a highway that is adequate to carry any additional traffic that might be generated by the proposed commercial facilities."

   The evidence presented before the County Commissioners was introduced by stipulation in the proceedings in the Circuit Court, and some additional evidence was offered.  In brief, there was evidence before the County Commissioners presented by West Ridge to show: (a) that the area within a two-mile radius of the West Ridge property contained a population of about 9,500 persons, that another 6,000 lived within a five-minute driving distance; (b) that growth in the area had been substantial since[***9] January 1, 1952; (c) that the people within this two-mile radius were nearer to the subject property than to either the Glen Burnie area to the north or Annapolis to the south (the nearest large shopping areas); (d) that about 725 residential building permits had been granted in the immediate area from January 1, 1952, through the first eight months of 1958; (e) that there had, during this time, been 20 zoning reclassifications from Agricultural to Cottage Residential, 10 from Agricultural to Light Commercial, 11 from Agricultural or Light Commercial to Heavy Commercial and 2 from Cottage Residential or Agricultural to Light Industrial; (f) that there were over 50 residential developments in the general area, with more than 1,000 new homes planned in the newer ones; (g) that new schools were being built to take care of the increased number of students; (h) that a marketing survey indicated a need for a shopping center of the type proposed in this area; and (i) the proposed shopping center would not cause traffic congestion either on the Ritchie Highway or on other roads.  Included in the rezoning [*453] to Commercial classifications since July 1, 1952, were 7 having frontage on[***10] the Ritchie Highway within a mile of the West Ridge tract. There are several service stations and a large food store in the immediate vicinity.

   The opponents of the shopping center rezoning offered evidence that it would impair or destroy the rural peace and quiet of their homes and would depreciate the value of their residential properties.  A specific objection to the proposed rezoning to Heavy Commercial of the .6-acre parcel for use as a gasoline service station was that there were already some half dozen filling stations in the immediate neighborhood and hence that there was no possible need for another. The proponents countered this objection by evidence to the effect that a service station immediately adjacent to the shopping center would be very useful to "one-stop" patrons who wished to have their automobiles serviced while they shopped.

   In the Circuit Court additional evidence, with which the County Commissioners were undoubtedly familiar, was introduced by the opponents.  This included testimony to the effect that the Zoning Map serves as the only comprehensive plan for the Election District of the County in which the subject property is located and two resolutions of[***11] the County Commissioners pertaining to proposed rezoning in the immediate vicinity. One of these was a resolution dealing with the Arthur W. Giddings property directly opposite the West Ridge tract on the Ritchie Highway; the other dealt with the Shepherd and Vanous petition covering a tract adjacent to the Giddings property [**910] and just to the south of it, which is also opposite part of the West Ridge tract.

   The Giddings tract resolution was adopted on the same evening (November 13, 1958) as the West Ridge resolutions.  Contrary to the adverse recommendation of the Planning and Zoning Commission, this resolution rezoned from Agricultural to Light Commercial a tract of 8.15 acres, which was also intended for use as a shopping center. This resolution contained several recitals. The first was the same recital as (a) in the West Ridge resolution quoted above.  Others expressed an opinion or finding that the rezoning would not depreciate other properties in the area, and that the tract [*454] being rezoned fronted on a road which could carry a considerable increase in traffic. There was no express finding that this rezoning would be beneficial to the particular area or[***12] to the County as a whole, as in West Ridge recital (c) above.

   The Shepherd and Vanous resolution was adopted exactly six months prior to the West Ridge and Giddings resolutions.  In that instance, however, the County Commissioners rejected the proposed rezoning. Their findings and reasons for so doing will be referred to somewhat fully at a later point.

   In the trial court as in this Court, the chief question was and is whether the action of the County Commissioners in rezoning part of the West Ridge property as Commercial was or was not within the proper exercise of their legislative power.  There have been so many cases in this Court in which the basic test has been stated that we think it unnecessary to do more than refer to four cases (three of them very recent) and to the cases therein cited.  See Eckes v. Board of Zoning Appeals, 209 Md. 432, 121 A. 2d 249; City of Baltimore v. N. A. A. C. P., 221 Md. 329, 157 A. 2d 433; County Commissioners of Howard County v. Merryman, 222 Md. 314, 159 A. 2d 854; and Pressman v. City of Baltimore, 222 Md. 330, 160 A. 2d 379. These cases recognize the familiar rules that in the case of piecemeal rezoning, there must be a showing[***13] of either an error in original comprehensive zoning or such a change in conditions as to warrant rezoning, that if either of these is shown, or if there are facts from which the legislative body could reasonably have made such a finding (i.e., that the matter is at least fairly debatable), the courts may not interfere with the legislative action, and that since there is a presumption in favor of the validity of the legislative action, the burden is on those objecting to the rezoning to show the absence of error in the original zoning and the lack of any such change in conditions as would warrant the rezoning.

   The Chancellor was of the opinion that the record was barren of evidence tending to show either a mistake in the original comprehensive zoning plan or that there had been such a substantial change in conditions subsequent to its adoption as to justify the amendatory action, "except for the [*455] increase in residential uses." As to the latter, he noted wide-spread opposition of neighboring residents, and he quoted from the opinion of this Court in Zinn v. Board of Zoning Appeals, 207 Md. 355, 363-364, 114 A. 2d 614. That case left open the question whether "a mere[***14] intensification of residential use" could support a reclassification. Zinn and a companion case, Schiff v. Board of Zoning Appeals, 207 Md. 365, 114 A. 2d 644, held invalid the reclassifications of two tracts "within a stone's throw of each other" to permit the establishment of two large shopping centers.  As the Chancellor pointed out, there were also two simultaneous shopping center rezonings here, one on each side of the Ritchie Highway.

   There is no contention here that there was any error in original zoning. The controversy as to the shopping center narrows down to the questions of the sufficiency of a change of conditions and of the effect of the almost simultaneous action of the County Commissioners in the Giddings [**911] rezoning and of their action six months previously on the Shepherd and Vanous petition for rezoning.
 
   Taking up their action in the Shepherd and Vanous matter first, we note that the recitals in the resolution did not amount to a finding that there had been no change.  On the contrary, the County Commissioners stated that commercial development of the subject property might very well be found to be desirable, but that such development at that[***15] time would tend to create traffic problems which would be created on several secondary roads with which the County was not then "prepared to cope," which it considered not to be in the public interest under then present conditions.  They also took into account the advice of the Planning Administrator that the requested detailed study of the area would involve considerable time and expense and that a preliminary survey indicated that various public improvements were desirable prior to or coincident with extensive commercial development of this and other properties in the area. The Board then stated that it "is of the opinion that the change in conditions in the vicinity of the property petitioned do not warrant the requested change in zoning at this time."

   As regards traffic problems, it may be noted that the secondary [*456] roads where such problems were anticipated are all adjacent to the Shepherd and Vanous tract and are on the opposite side of the Ritchie Highway from the West Ridge property.  With regard to the other grounds for disapproval of the Shepherd and Vanous petition above stated, it should be noted that when the West Ridge application came before the Board, it[***16] did so with the favorable recommendation of the Planning and Zoning Commission.

   As to the time and extent of changes, this case seems readily distinguishable from Zang v. Taylor, 203 Md. 628, 102 A. 2d 723, where two successive reclassifications of the same property had occurred, the second only six months after the first, and this Court upheld a contention that no such substantial change as to warrant the second rezoning could have occurred in that six months' period.  We think that the present case falls within the rule recognized in County Commissioners of Howard County v. Merryman, supra, that at least in passing upon the sufficiency of change where (as here) there has been no rezoning since the original comprehensive zoning, the aggregate of all changes since the original zoning may be taken into consideration.

   Furthermore, just how much real inconsistency, if any, there may have been between the County Commissioners' denial of the Shepherd and Vanous petition and their granting of the West Ridge petition, is rather doubtful.  As above stated, their refusal in the Shepherd and Vanous matter seems to have been based not on the absence of change, but on the ground that[***17] other considerations made the proposed reclassification inadvisable at that particular time and in that particular place.

   The appellees' principal contention rests on the Zinn and Schiff cases. There serious traffic problems were involved as to each of the proposed shopping centers because of inadequate access roads, with little prospect of their early improvement.  Here the testimony does not show any comparable traffic problem. There is here, as there was in Zinn and Schiff, the absence of any comprehensive land use plan, other than the zoning map. That, however, does not of itself bar rezoning. Eckes v. Board of Zoning Appeals, supra; Pressman [*457] v. City of Baltimore, supra. The absence of careful planning was pointed out in Zinn and was a factor in the result of that case and of the Schiff case.  In each of those cases, it was held that there was an absence of any showing of original mistake in zoning or of any such change in conditions as would warrant rezoning, and that the action taken amounted to ill-considered piecemeal zoning of the kind condemned in such cases as Cassel v. Mayor, etc., [**912] of Baltimore, 195 Md. 348, [***18] 73 A. 2d 486.

   Here, unlike Zinn and Schiff, but like Pressman, the reclassification in question is not inconsistent with everything else in the vicinity. There is other commercialization in the immediate neighborhood.  And here, unlike Zinn and Schiff, notwithstanding the absence of any comprehensive plan other than the land use map, the planning aspects of the matter have not been neglected.  On the contrary, the application was carefully studied and considered by the body charged with duties of planning, the County Planning and Zoning Commission, (Code (1957), Art. 66 B, Sec. 15); and it was recommended by that body.  The Giddings rezoning is not before us, and we express no opinion with regard thereto.  The granting of both applications at the same session may raise questions as to the wisdom of the legislative action (as, for example, if the over-extension of shopping centers should lead to commercial slums), but that is not a matter for determination by the courts, if the justification for the legislative change was at least fairly debatable.

   In the instant case we think that the evidence of a change in conditions due to the substantial increase in population[***19] of the area, of the increasing commercialization in the vicinity, and of the general public trend towards the use of shopping centers was sufficient to bring the question of rezoning this West Ridge property into the field where the matter was at least fairly debatable. See Eckes v. Board of Zoning Appeals, supra, 209 Md. at 441; Pressman v. City of Baltimore, supra. This evidence and the careful consideration given by the Planning and Zoning Commission to the West Ridge application, and its favorable recommendation, all serve to distinguish [*458]this case from the apparently ill-considered piecemeal zoning involved in the Zinn and Schiff cases.

   The rezoning of the .6-acre tract to Heavy Commercial for use as a service station is, we think, incidental to the rezoning of the 18.5-acre tract for use as a shopping center. So considered, we think that it, too, was within the realm of the fairly debatable.

   In accordance with the above views, the decree appealed from will be reversed.

   Decree reversed, with costs, and bill dismissed. 

MEISE et al. v. TAYMAN et al. 
No. 203, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 426; 160 A.2d 916; 1960 Md. LEXIS 353

 May  18, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree reversed and case remanded for the entry of a decree not inconsistent with the views here expressed, costs to be paid by the appellees.

CORE TERMS:  deed, grantor, grantee, delivery, recorded, conveyed, chancellor, elder, present interest, third person, fee simple, farm, acres, custodian, manual, confirmatory, alienation, remainder, recording, reclaim, decree, lived, heirs, predeceased, conveying, handed, unconditional delivery, full knowledge, power to alter, valid delivery

COUNSEL: C. Maurice Weidemeyer[***3] , with whom was Thomas M. Schifanelli on the brief, for appellants.

   Theodore G. Bloom, with whom were Albert J. Goodman and Vernon G. Frame on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*427] [**917] George W. B. Meise, individually and as administrator of the estate of Richard Percy Tayman, and George Thomas Meise and wife, appeal from a decree setting aside a deed from Tayman to Hillman, trustee, dated November 19, 1943 and recorded May 6, 1958, and a second deed from Hillman, trustee, to Tayman and George W. B. Meise, for their lives, with remainder to George Thomas Meise, dated November 22, 1943 and recorded May 6, 1958.  The chancellor based his holding upon his conclusion that there was no effective delivery of the deeds and that the first one could not be given effect as a will.  Hence, he signed a decree declaring them null and void, and declaring the heirs at law of Tayman to be the owners of the property undisposed of in his lifetime, since [*428] he died intestate.  The appellants contend that there was a valid delivery; [***4] that the chancellor erred in his rulings on the evidence; and that the deeds can be sustained and given effect either as deeds or as a will.

   Tayman, a bachelor, acquired a joint interest with his father in a farm of about sixty-five acres of land in 1915.  The father's interest was released to him in 1922.  The farm was improved by a large dwelling house.  In 1921, his sister, Laura, married George W. B. Meise, and they moved to the farm and lived in the house with Tayman.  It is undisputed that she lived there until her death in 1943, and that George W. B. Meise and their son, George Thomas Meise, who was born in 1930, lived there until the latter married and moved into his own home in 1955.  The record does not disclose just what arrangements were made between the parties, in regard to expenses or working arrangements.  The appellants undertook to show that Tayman and the elder Meise were partners in the farm operation, that all of the Meises contributed their services, and that this was the consideration for the deeds in question.  The answer also set up claims for uncompensated services in nursing and caring for Tayman, whose eyesight was failing in 1943, and who became totally[***5] blind several years before his death.  The chancellor refused to admit testimony on the subject, because of the Evidence Act, sometimes called the Deadman's Statute, Code (1957), Art. 35, sec. 3.  The appellants strongly urge that the subject was opened by the opposite parties, by requests for admission of facts [**918] prior to trial pursuant to Maryland Rule 421.  In the view we take of the case, we need not pass on the point.

   In November, 1943, Tayman and the elder Meise went to the office of Noah A. Hillman, an attorney in Annapolis, Maryland.  He knew both of them and had previously represented them.  He prepared certain deeds at their request.  The first deed was from Tayman to Hillman, trustee, and recited that "in consideration of the sum of $5.00 and other good and valuable considerations" Tayman granted and conveyed to "Hillman, Trustee, his successors and assigns, in fee simple," the tract therein described, "to the proper use and benefit [*429]of the said Noah A. Hillman, Trustee, nevertheless, to immediately re-convey the said land unto Richard P. Tayman and George W. B. Meise, for and during their joint lives and upon the death of the survivor of them, then [***6]to George Thomas Meise, his heirs and assigns, in fee simple; * * *." The grantor covenanted for special warranty and further assurances.  It was signed and sealed by Tayman a few days later, not in Hillman's office but at Fort Meade where he was taken by a friend.  It was witnessed by Rodman I. Gilbert, and a certificate of a notary public, M. Vivian Duvall, in the usual form, was attached.

   The second deed, from Hillman, Trustee, to Tayman and George W. B. Meise, with remainder to George Thomas Meise, was in substantially the same form, and duly executed and acknowledged by Hillman.  Both deeds contained a notation "no stamps required".  Hillman was paid by the elder Meise for the preparation of the deeds. Hillman testified that he took them to the Courthouse for record a few days later, but did not record them because he found that taxes for the current year were unpaid.  He wrote Meise calling his attention to this fact, but received no response.  The deeds remained in Hillman's office until after Tayman's death on January 15, 1958, when he delivered them to the attorney for George W. B. Meise, who had them recorded.

   Between November 22, 1943 and December 19, 1956, while the[***7] two deeds remained in Hillman's custody, Tayman executed, as sole grantor, fifteen separate deeds by which he conveyed away approximately fifty acres of the original sixty-five.  The first of these deeds was dated November 23, 1946, and the last December 19, 1956.  One of them conveyed a parcel to George Thomas Meise, another to George W. B. Meise, with remainder to George Thomas Meise. The testimony is uncontradicted that all of these conveyances were made with the full knowledge and approval of George W. B. Meise.  After recording the deeds under attack, the grantees executed confirmatory deeds to the parcels conveyed out of the original tract.  Hillman testified that at no time, subsequent to the execution and the leaving of Tayman's deed to him, did Tayman, or Meise, ever indicate any desire to cancel it, or [*430] request its return.  On the other hand, neither Tayman nor the elder Meise ever requested him to record the deeds, after receiving his letters about the unpaid taxes, even though it seems that the taxes were paid from year to year thereafter.  Meise testified that the reason why he did not insist that the deeds be recorded was that his son was a minor in 1943. [***8] He was not permitted to explain further, as that involved a conversation with the decedent.

   Gilbert testified that Tayman told him, after he had acknowledged the deed to Hillman, Trustee, "If I have this deed properly taken care of I will be in a position to hold onto my property.  If I should die it will go right to George and Tommy, because I want Tommy to eventually have it all." In 1957, Tayman said to the witness, "I am liable to die at any time, but I think I got everything under control.  If I should outlive George for any reason, I have got the property so I can take it back.  If George outlives me, Mr. Hillman has only got to put it on record and that's it." In cross-examination the witness said [**919]Tayman told him, "as long as that property wasn't on record, all he had to do was to go down to Mr. Hillman's office and get the deed back and destroy it I guess, but he also had an impression at the same time that deed existed that if he died it would go in the channel to which he had so directed. That was his opinion." Tayman also said, "it will just be better than a will."

   We cannot agree with the chancellor that there was no valid delivery. The grantor, Tayman, [***9] signed, sealed and acknowledged a deed to "Hillman, Trustee", conveying the property to him in fee simple, in trust to reconvey to the parties mentioned.  Tayman handed the executed deed to Hillman.  Hillman then signed and acknowledged the second deed, as he was obligated to do.  Even though the deeds had not then been recorded, it would seem that the unconditional delivery to a third person for the grantees would pass title as between the parties, and that the grantor retained no power to alter or reclaim the deed. Cf. Clark v. Creswell, 112 Md. 339, 75 Atl. 579; Krach v. Carson, 150 Md. 659, 133 Atl. 306, and Citizens' Nat. Bank v. Parsons, 167 Md. 631, 638, 175 Atl. 852. Code (1957), Art. 21, sec. 16 provides that deeds [*431] properly executed and acknowledged may be recorded after the time prescribed by law, and take effect as against the grantor and his heirs. See Zulver Realty Co. v. Snyder, 191 Md. 374, 383, 62 A. 2d 276. Cf. Messick v. Pennell, 182 Md. 531, 539, 35 A. 2d 143.

   The deeds were prepared at the joint request of the parties, and paid for by the grantee. The attorney did not execute the second deed until the first deed had been executed[***10] and was in his possession.  There is no evidence that the grantor, verbally or otherwise, ever attached any condition to his manual delivery of the first deed to the trustee.  The attorney did, in fact, attempt to record the deeds, and would have done so if the current taxes had been paid.  He called attention to the open taxes by two letters addressed to the grantee, Meise, not to the grantor. It seems clear that the trustee would have had no legal right to return the deeds to the grantor without the consent of all the beneficiaries named in the first deed, cf. Citizens' Nat. Bank v. Parsons, supra, and Gordon v. Small, 53 Md. 550, 557, even though Tayman had the impression, undisclosed to the trustee, that he could "take the deed back and destroy it", in the event that the elder Meise predeceased him.  Cf. Loughran v. Kummer, 146 Atl. 534 (Pa.), and Herzing v. Hess, 58 N. W. 2d 430 (Wis.).  Of course, manual tradition is not conclusive.  There must be an intention to create a present interest, but it is generally held that if there is such an intent it will not be vitiated, even by the retention of a life estate, or, if the transfer was in trust, even by an express[***11] power to revoke.  See 3 American Law of Property §§ 12.66, 12.67; Restatement, Trusts (2d ed.) § 56 Comment (b) and § 32 Comments (c), (d) and (e); Scott, Trusts (2d ed.) §§ 56.1, 57.1.  Cf. Bowie v. Bowie, 208 Md. 623, 626, 119 A. 2d 436, and Rippon v. Mercantile-Safe Dep., 213 Md. 215, 230, 131 A. 2d 695. See also Notes 11 A. L. R. 23, 31 A. L. R. 2d 532, and Ellison v. Clayton, 164 Md. 35, 38, 136 Atl. 695. We think the evidence discloses an intention to create a present interest in the instant case.

   We find nothing to the contrary in the cases cited and relied upon by the appellee.  In Renehan v. McAvoy, 116 Md. 356, [*432] 81 Atl. 586, the deed in question was left with the Register of Wills, as a mere custodian and not as trustee, with directions to record it only after the death of the grantor. The grantee was never informed of the matter, and the grantor retained the right to reclaim the deed from the custodian, as his agent, at any time.  It was held, on the facts, that there was no intention to create a present interest. It is generally held that a delivery to a third person, for recording only after the death of the grantor, is a [**920] good[***12] delivery, in the absence of special circumstances showing that the grantor retained complete dominion in the meantime.  See Note 52 A. L. R. 1222. In Buchwald v. Buchwald, 175 Md. 115, 199 Atl. 800, the deed was handed to the grantee, not to a third person, with an express direction not to record it during the grantor's lifetime, and with express reservation of a right to retake and cancel it if the grantee predeceased the grantor. Insofar as that decision may be said to rest upon the proposition that there cannot be a delivery in escrow to a grantee, its authority is shaken by the statement to the contrary in Chillemi v. Chillemi, 197 Md. 257, 264, 78 A. 2d 750. In the Chillemi case, there was a breach of an express condition that the grantee would not record the deed, if he returned from a certain dangerous mission.  Cf. Smith v. Wilson, 171 F. 2d 824 (D. C.).

   The chancellor stated in his opinion that it was unnecessary "to determine whether Mr. Hillman was the agent of the Grantor or Grantee for the reason that the Grantor's acts in conveying property included in the original deed showed conclusively that he did not intend to part with control or dominion over [***13]the property." We do not agree.  The delivery to the trustee having been effective and unconditional, the title of the grantees was vested and beyond the right of the grantor to deal with without the consent of the grantees. Gordon v. Small, supra. It is held generally that where a deed is delivered to custodian or escrow agent for later delivery to the grantee, the later delivery relates back to the first so that the deed takes effect as of the date of the original delivery. In such case the grantee is protected as to an intervening purchaser or lienor with notice.  3 American Law [*433] of Property § 12.67, pp. 319-320.  The testimony is uncontradicted that the conveyances of portions of the property were made with the full knowledge and consent of the co-tenant for life and George Thomas Meise, the remainderman, since becoming of age, has joined in confirmatory deeds. The consent of the grantees to the alienation of a part of the property originally conveyed to them -- an alienation the grantor had no right to make without their consent -- cannot affect the legal operation and effect of the grant, as between the parties, of the remaining fifteen acres now in controversy. [***14]

   Since we sustain the validity of the deeds in question, we do not reach the questions of the admissibility of evidence as to transactions with the decedent, or of whether, in any event, the deed to Hillman, Trustee, could be given effect as a covenant to stand seised, or as a will.

   Decree reversed and case remanded for the entry of a decree not inconsistent with the views here expressed, costs to be paid by the appellees. 

CARR'S BEACH AMUSEMENT COMPANY, INC. v. ANNAPOLIS ROADSPROPERTY OWNERS ASSOCIATION, INC. et al. 
No. 200, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 392; 160 A.2d 598; 1960 Md. LEXIS 347

 May  13, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  nuisance, inconvenience, enjoyment, amusement park, loud, dwelling, noises, nearby, decree, chancellor, discomfort, comfort, excessive, speakers, volume, bathing beach, comfortable, interfere, penetrate, estoppel, disturb, slight, concede, sensibilities, injunction, enjoined, occupied, tastes, conducting, residents

COUNSEL: Thomas J. Curley and George B. Woelfel for the appellant.

   R. Cresap Davis, with whom were Hyman Ginsberg and Ginsberg & Ginsberg on the brief, for the appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*394] [**599] Carr's Beach Amusement Company, [***5] Inc. (Carr's), the defendant-appellant, leases some fifteen acres of water-front property in Anne Arundel County, upon which it operates a public bathing beach and amusement park. As a result of suit being instituted against it by complaining owners of nearby residential properties, it was enjoined from "operating and maintaining their loudspeakers or public address systems at [*395]such excessive levels of sound volume as to penetrate the private homes of the individual plaintiffs herein so as to disturb the comfortable enjoyment of their said homes by the said plaintiffs or any of them, and subject to the further order of this Court."

   The position taken by the appellant is rather unusual and extraordinary.  It concedes that if the plaintiffs are entitled to an injunction, the form and scope of the chancellor's decree are correct.  It almost concedes that its conduct of the amusement park has, in a legal sense, constituted a nuisance, stating that it will, "not simply concede but strongly suggests that a public beach and amusement park such as Carr's beach * * * would be, under any circumstances, a matter of some inconvenience and annoyance from the point of view of nearby[***6] residents." It admits it is familiar with the rule stated in the case of Meadowbrook Swimming Club, Inc. v. Albert, et al., 173 Md. 641, 197 A. 146 (which will be mentioned later), but goes on to argue that the "plaintiffs came to the alleged nuisance," and, if this be considered with all of the other circumstances of the case, and the principle of balancing conveniences and inconveniences (some law books now refer to this principle in terms of the gravity of the harm weighed against the utility of the activity causing the harm.  1 Harper and James, Law of Torts, § 1.24; Restatement, Torts, Sections 826-828), had been properly applied, then the court should not have issued its injunctive decree. In other words, its contention is, that even if it has been conducting its business so as to maintain a legal nuisance, this Court should sanction a continuation of that nuisance under the particular circumstances of this case.

   That part of appellant's argument which deals with the plaintiff's "coming to the nuisance" may be disposed of summarily.  The only complaint against the operation of the defendant's business is the excessive sound volume emanating from the loud-speakers[***7] and public address systems.  At least two of the plaintiffs (and perhaps more of the predecessors in interest of the plaintiffs) had built and occupied substantial and costly homes before Carr's was established.  The predecessor in interest of the plaintiff, Beall, built his home in [*396] 1928, and, at that time, though Carr's was in existence, there was testimony that it was conducted in an orderly and quiet manner.  Thus, it is seen that, at least, some of the plaintiffs had constructed and occupied their dwellings long before there were any disturbing noises from Carr's, and, therefore, did not "come to the nuisance," so, whatever may have been the legal effect, if any, had they in fact done so, need not be discussed nor considered further.

   The only other reasons advanced by the appellant as to why the principle of balancing conveniences and inconveniences should be applied are that it has some $135,000 invested in its enterprise, and the operation of the amusement park is a public benefit, which it insists will be lost if the injunction stands, as it will be forced out of business.  We do not deem it necessary to make a lengthy or comprehensive exposition of the above principle; [***8] for, obviously, the instant case does not present a proper factual background for its application.  Generally speaking, it is simply that in cases in which some element of estoppel enters or where the question is affected by a public interest, if the inconvenience or loss resulting to a complainant from the continuance of a nuisance [**600] will be slight as compared with the inconvenience to the public or the loss to the defendant resulting from its abatement, equity will, ordinarily, refuse relief.  Huebschmann v. Grand Company , 166 Md. 615, 621, 172 A. 227; 1 Harper and James, op. cit., § 1.24, p. 74; Restatement, Torts, § 826-828.  Cf. Lichtenberg v. Sachs, 213 Md. 147, 131 A. 2d 264, and Dundalk Holding Co. v. Easter, 215 Md. 549, 137 A. 2d 667, cases that involved encroachments upon properties, not nuisances.

   In the case at bar, the nearby property owners, presumably, had an equal, if not greater, investment in their properties than the investment of the defendant: one of the plaintiffs testified that his property had cost him more than $37,000.  And the chancellor found that the inconvenience to the plaintiffs was not "slight," but that the loud noises[***9] caused "actual physical discomfort to the plaintiffs" and "seriously" interfered with the ordinary comfort and enjoyment of their properties as dwellings (findings that we will later affirm).  No element of estoppel is present here.  And it is very difficult to conceive how the chancellor's decree is going to "force the [*397]appellant out of business." It simply prevents the operation of the loud speakers and public address systems at excessively high sound levels.  With the nearest residence some 1200 feet from where the bands play in the amusement park, there would seem to be little need for the amplification system to be set so high as to annoy seriously persons of ordinary tastes and sensibilities, in order for the public to continue to patronize the place.

   The case was, we think, properly decided by the chancellor. It would serve no useful purpose to set forth in detail the evidence presented by the parties.  It will suffice to say that the testimony was taken in open court, and the chancellor found "that the sound system on the defendant's premises is operated in such a manner as to cause actual physical discomfort to the plaintiffs and to seriously interfere with the[***10] ordinary comfort and enjoyment of their properties as dwellings." Upon the record as it is presented to us, we certainly cannot hold that he was clearly in error, which we would be required to do in order to reverse his findings of fact.  Rule 886.

   This brings the case squarely within the ambit of the leading case of Meadowbrook Swimming Club, Inc. v. Albert, supra, 173 Md. 641, 197 A. 146. That case, as the instant one, involved a nuisance to nearby residents caused by loud noises emanating from skilled musicians conducting an orchestra.  The Court, at page 645, stated:

   "The rule which must control is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits, such as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party (citations) subject to the qualification that it is not every inconvenience that will call forth the restraining power of a court.  The injury must be of such a character as to diminish materially the value of the property as a dwelling and[***11] seriously interfere with the ordinary comfort and enjoyment of it."
 
[*398] The Court then pointed out that this rule was supported by previous Maryland decisions, and that it was in accord with the holdings in out-of-state cases involving noises incident to recreational activities.  See also Five Oaks Corp. v. Gathmann, 190 Md. 348, 58 A. 2d 656; Green v. Garrett, 192 Md. 52, 64, 63 A. 2d 326; Bishop Processing Co. v. Davis, 213 Md. 465, 474, 132 A. 2d 445.

   The case of Lohmuller v. S. Kirk & Son Co., 133 Md. 78, 104 A. 270, cited by the appellant, is not in point under the facts [**601] of the case at bar. That case involved noises produced in a large commercial and manufacturing city, not those transmitted to properties in a residential community in the country. See also Five Oaks Corp. v. Gathmann, supra, 190 Md. 348, 58 A. 2d 656.

   Decree affirmed, with costs. 

DROUIN v. STATE 
No. 141, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 271; 160 A.2d 85; 1960 Md. LEXIS 334

 April  14, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson and Duckett, JJ.

DISPOSITION: Judgment in No. 4653 affirmed.  Judgment in 4654 affirmed on first count of the indictment, and reversed on second count and case remanded for a new trial on said second count.

CORE TERMS:  informer, arrest, probable cause, felony, disclosure, burglary, indictment, informant, Criminal Law, next door, stolen, cab, information received, evidence obtained, larceny, dark, rear, reasonable cause, arrested, lawful arrest, general rule, issue of probable cause, misdemeanor count, compel disclosure, false testimony, suspicious, missing, theft, felon, legality

COUNSEL: Nicholas J. Fotos for the appellant.

   Clayton A. Dietrich, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, C. Osborne Duvall, State's Attorney for Anne Arundel County, and John A. Blondell, Assistant State's Attorney, on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*275] [**86] Having been found guilty by the Circuit Court for Anne Arundel County, sitting without a jury, on the first two counts of each of two separate indictments, after consolidation by agreement for the purposes of trial, and being sentenced to confinement as a result thereof, the defendant appeals.  The first indictment contained three counts, charging him with burglary, larceny and receiving stolen goods; the second, likewise in three counts, charged him with burglary, statutory theft and receiving stolen goods. No question is here involved concerning the counts that charged him with receiving stolen goods.
 
   Harvey J. Collinson, his wife and daughter left their home located at 604 S. Crain Highway, Glen[***8] Burnie, Maryland, around 7:00 P.M. on May 22, 1959, and returned home that same evening at approximately 10:00 P.M.  They then discovered that someone had broken into and entered their home during their absence.  Upon entering their home, it appeared to have been ransacked; someone had apparently rifled their bureau drawers and scattered the clothing that had been therein.  Shortly thereafter, Collinson telephoned the Ferndale Police Station and reported the breaking and entering.  Three police officers drove to the Collinson home sometime after the telephone call, but prior to midnight. They investigated the premises and were told by Collinson that a watch, a .22 caliber pistol and a Ronson lighter were missing. During this period of investigation, Sergeant Gleim received information from [**87] several people that a person described as the appellant was a boarder in the house next door to the Collinson's and was seen about 8:00 P.M. on May 22, 1959, "* * * act[ing] in a suspicious manner, seemed to be retreating to hiding places when anybody approached or cars came up and down the Crain Highway with bright lights." Shortly after midnight, in the early morning of May 23, 1959, [***9]a taxi-cab pulled up in front of the house next door (where the appellant had a room) and the appellant was seen getting out of the cab, but apparently changed his mind and got back into the cab. The cab then made a U-turn and headed back in the direction from whence it had come.  Officers Gleim and Jager got in one patrol car and Officer Golebiewski operated the [*276] other car.  One squad car overtook the cab and forced it to come to a stop by pulling in front of it and the other closed in behind it.  The three officers approached the cab and the appellant got out of the cab and was advised by Officer Gleim that he was under arrest. They proceeded to search the appellant's person and the cab. They seized articles of personalty which were later identified as articles missing from the Collinson house and the residence of one Alvin Wolfe, which had also been broken and entered the same night.  The officers failed to find a diamond ring reported later to be missing by the Collinsons.  Subsequent to the appellant's arrest, the breaking and entering of the Wolfe residence was reported.  Some of the articles seized were later identified by Mr. Wolfe as being the articles missing[***10] from his house. The appellant did not make any statements of admission or confession.

   He was indicted by the grand jury and arraigned before the Circuit Court of Anne Arundel County, and pleaded not guilty in each case.  Before his trial, the court appointed counsel to defend him, who requested and was granted permission to withdraw appellant's pleas in order to submit two motions in writing: a motion to dismiss the indictments and a motion to suppress the evidence.  The court overruled the motion to dismiss and postponed its ruling on the motion to suppress until some appropriate time during the course of the trial.  During the trial the court overruled appellant's motion to suppress the evidence and at the termination of the State's case, the court overruled the appellant's motion for directed verdicts on each and every count.  It is from these rulings that this appeal is taken.

   I

   The first count of each indictment charged that the defendant, "feloniously and burglariously did break and enter the dwelling house," etc.  The appellant objects to the use of the word "feloniously," contending that the offenses of which he was accused in the first counts were misdemeanors; therefore [***11]his motion to dismiss them should have been granted.  Whittington v. State, 173 Md. 387, 196 A. 314.

   His entire argument in this regard is based upon a statement [*277] in State ex rel. Copeland v. Warden, 194 Md. 717, 718, 70 A. 2d 813, (1950), a habeas corpus proceeding, wherein this Court said: "Burglary, under the Maryland statute, Article 27, Section 33, is not a felony. Bowser v. State, 136 Md. 342, 344 n1 * * *." The accused here was indicted under Code (1957), Article 27 [all references hereafter made to the Codes will be to Article 27, unless otherwise specified], Section 30.  At the time of the decision in Copeland, (1950), this Section 30 was Section 33 of the 1939 Code, which had not at that time been supplanted; hence, if the Court were, in reality, referring to the 1939 Code, it would lend considerable substance [**88] to the appellant's contention. However, it seems clear that the Court, in the Copeland case, was referring to Section 33 of the Code of 1912, which was then Section 34 of the 1939 Code.  It supported the statement that "burglary, under the Maryland statute, Article 27, Section 33, is not a felony" by the immediate citation[***12] of the Bowser case, which specifically dealt with Section 33 of the 1912 Code [Section 32 of the 1957 Code], and held that the offenses described therein constituted misdemeanors and not felonies.

n1 Unquestionably, the unfortunate failure to state the specific Code referred to in this sentence has resulted in some confusion upon the subject. Is Burglary a Felony or Misdemeanor in Maryland?  11 Md. L. Rev. 336; Code (1957), Article 27, Section 30, --- Ed. Note.

   Moreover, Section 30 of the 1957 Code, under which the defendant was indicted reads:

   "Every person, his aiders, abettors and counsellors, who shall break and enter any dwelling house in the nighttime with the intent to steal, take or carry away the personal goods of another of any value therefrom shall be deemed a felon and shall be guilty of the crime of burglary."
 
It is immediately noted that the statute explicitly says that whoever violates it shall be deemed a felon and shall be guilty of burglary.  A felon is a person who[***13] has committed a felony, Black's Law Dictionary (4th Ed.), p. 743, Webster's New International Dictionary of the English Language (2nd Ed., [*278]1953), p. 931, and burglary was one of the common-law felonies. We have no hesitation in concluding that this Court in the Copeland case, in the sentence quoted, referred to Section 33 of Article 27 of the 1912 Code, and that the offense described in Code (1957), Article 27, Section 30, constitutes a felony.

   II

   In this assignment of error, the appellant asks us to rule that his motion to suppress the evidence taken from the accused at the time of his arrest should have been granted on the ground that his arrest was unlawful and the evidence obtained as a result of this unlawful arrest should not be used against him at his trial.  As evidence is admissible against an accused in Maryland whether lawfully obtained or not in felony cases, Davis v. State, 189 Md. 640, 645, 646, 57 A. 2d 289, this objection could only be aimed at the misdemeanor count, and the appellant limits this claim of error to the "admissibility of that evidence (the evidence taken from the accused as a result of his search after arrest) as applicable[***14] to the second count (statutory theft)" of the second indictment, relying upon Code (1957), Article 35, Section 5, [The Bouse Act].

   As we have held above that the appellant's motion to dismiss the burglary counts was properly overruled, he stands properly convicted of burglary under the second indictment and sentenced to one year's confinement for the same; so, from a practical point of view, even if he be successful in this contention, it will avail him little relief.  However, as burglary and theft are separate and distinct offenses, and the defendant should not be improperly convicted of any offense, we shall consider and determine the question.

   There can be little doubt that a police officer may lawfully arrest a person when he has reasonable ground to suspect that a felony has been committed, whether or not in his presence or view, and reasonable ground to believe the arrestee has committed it.  Mason v. Wrightson, 205 Md. 481, 486, 109 A. 2d 128; Kauffman, The Law of Arrest in Maryland, 5 Md. L. Rev. 125, 159. And, after a lawful arrest has been made, the officer, as an incident thereto, may search the [*279] offender and seize any evidence of the crime.  Mason [***15]  v. Wrightson, supra, and cases cited.

   At the trial, the State attempted to show that the arresting officers had reasonable grounds to suspect that a felony had been committed and that the appellant was the guilty party, in order to establish a lawful arrest so that the evidence obtained by them, in a search incident thereto, would [**89] be admissible against the accused relative to the misdemeanor count as well as the counts that charged felonies. n2 To this effect, the State offered proof that the officers knew the Collinson home had been burglarized and certain personal property stolen therefrom.  The officers then testified that they had been informed by certain neighbors of the accused (he roomed next door to the Collinsons) that he had been seen in the rear of the Collinson home shortly after the Collinsons left it on the evening of May 22 acting in a suspicious manner which we have previously described.  As stated above, this evidence was offered for the specific purpose of establishing "probable cause" for the subsequent arrest of the accused.  The attorney for the defendant then asked: "Who gave you this information?" The officer replied: "I'd rather not reveal that[***16] unless I have to." The court immediately said: "You don't have to tell us.  * * *."

n2 The appellant specifically directed and limited his objection under this heading to the misdemeanor count.

    Professor Wigmore says n3 a genuine privilege for communications, on the fundamental principle of privilege, must be recognized for the communications made by informers to the Government; because such communications ought to receive encouragement, and because that confidence, which will lead to such communications, can be created only by holding out exemption from a compulsory disclosure of the informant's identity.  In this statement, he is supported by the cases and text-writers alike.  See McCormick, Evidence, Section 148; 3 Wharton's Criminal Evidence, (12th Ed.), Section 795; McCoy v. State, 216 Md. 332, 140 A. 2d 689; Roviaro v. United States, 353 U.S. 53, 59 (1957); Sorrentino v. United [*280] States, 163 F. 2d 627 (C. A. 9th, 1947).  Additional cases will be cited later.

n3 8 Wigmore, Evidence (3rd Ed.), Section 2374.

[***17]

   But this statement from Wigmore is the general rule; and it is subject to certain limitations and exceptions, inherent in its logic and its policy, that are as well established as the rule itself.  Professor Wigmore (Section 2374) lists four such limitations, and, in the instant case, we are concerned only with the fourth, namely, that "[e]ven where the privilege is strictly applicable, the trial court may compel disclosure, if it appears necessary in order to avoid the risk of false testimony or to secure useful testimony." Professor McCormick (Section 148) expresses the same principle in slightly different language by saying that when the privilege is asserted by the State in a criminal prosecution, and the evidence of the identity of the informer becomes important to the establishment of the defense, the court will require the disclosure, and, if it be still withheld, that the prosecution will be dismissed.  Wharton (Section 795) states that the general rule is one of policy which will be followed unless it conflicts with a rule of justice, with the distinction being materiality.  When the name of a person from whom a police officer has received certain information is material[***18] to the issue it cannot be withheld, but, if it be immaterial the courts will not compel its disclosure. See also 2 Underhill, Criminal Evidence (5th Ed.), Section 327.

   The escape from the privilege has been frequently invoked where the question arises as to the existence of probable cause for an arrest or seizure without a warrant.  Roviaro v. United States, supra; McCormick, op. cit., Section 148, n. 11.  Of course, when a sufficient showing of probable cause is afforded by what the arresting officers saw and heard themselves, the information received from informers is of little importance and disclosure of their identity will not be required.  Scher v. United States, 305 U.S. 251, 254.

   A recent case decided by the Supreme Court of California, Priestly v. Superior Court, 330 P. 2d 39 (1958), [**90] illustrates well, and applies, the principle being discussed.  In that case, police officers, acting solely upon the information of two informers and without a warrant, went to the defendant's [*281] apartment and knocked on the door.  When the defendant answered, he was placed under arrest and he and his apartment were searched. Narcotics were discovered on[***19] his person and in his apartment.  On the issue of probable cause for making the arrest, the defendant objected to the officers' testimony concerning the knowledge that they had received from the informers unless the informers' identities were made known.  This objection was overruled.  The Supreme Court stated that the communications of the informers were material to the issue of reasonable cause to make the arrest and seizure, recognized that the policy conflict was between the encouragement of the free flow of information to law enforcement officers n4 and the policy to discourage lawless enforcement of the law, and then went on to adopt as its rule the observation made by the Supreme Court of the United States in Roviaro v. United States, supra, 353 U.S. 53, 61, i.e.: "Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication." [***20] 

n4 California recognizes the privilege by its code.  Section 1881, subdivision 5, Code of Civil Procedure.

   The California Court, in stating its reasons for the ruling, said:

   "If testimony of communications from a confidential informer is necessary to establish the legality of a search, the defendant must be given a fair opportunity to rebut that testimony.  He must therefore be permitted to ascertain the identity of the informer, since the legality of the officer's action depends upon the credibility of the information, not upon facts that he directly witnessed and upon which he could be cross-examined.  If an officer were allowed to establish unimpeachably the lawfulness of a search merely by testifying that he received justifying information [*282] from a reliable person whose identity cannot be revealed, he would become the sole judge of what is probable cause to make the search.  Such a holding would destroy the exclusionary rule.  Only by requiring disclosure and giving the defendant an opportunity[***21] to present contrary or impeaching evidence as to the truth of the officer's testimony and the reasonableness of his reliance on the informer can the court make a fair determination of the issue.  Such a requirement does not unreasonably discourage the free flow of information to law enforcement officers or otherwise impede law enforcement.  Actually its effect is to compel independent investigations to verify information given by an informer or to uncover other facts that establish reasonable cause to make an arrest or search.  Such a practice would ordinarily make it unnecessary to rely on the communications from the informer to establish reasonable cause. When the prosecution relies instead on communications from an informer to show reasonable cause and has itself elicited testimony as to those communications on direct examination, it is essential to a fair trial that the defendant have the right to cross-examine as to the source of those communications.  If the prosecution refuses to disclose the identity of the informer, the court should not order disclosure, but on proper motion of the defendant should strike the testimony [**91]as to communications from the informer."[***22]
  
See also, Hill v. State, 118 So. 539, 540, (Miss.); Wilson v. United States, 59 F. 2d 390, 392, (C. A. 3rd); 13 N. Y. U. Intra. L. Rev. 141, 147-152; Mapp v. State, 114 So. 825, 826, (Miss.); State v. Edwards, 317 S. W. 2d 441 (Mo. 1958); United States v. Keown, 19 F. Supp. 639 (D. C. Ky.), cited with approval in the Roviaro case, supra, 353 U.S. 53; United States v. Blich, 45 F. 2d 627 (D. C. Wyoming).

   It is stated in Keown, supra:

   "Every accused person has the right to cross-examine [*283] on material facts every witness who testifies against him.  This has been the rule ever since the law became certain and stabilized, and is a part of due process, which found its expression in the Fifth and Sixth Amendments to the Constitution.  See Hale's History of the Common Law, page 145; Starkie on Evidence (2d Ed.) Vol. 1, page 160.

   "When the government calls a witness whose testimony is based in part on that of an informer, it subjects the witness to cross-examination and the informer to whatever peril may arise out of such cross-examination.  It is a sound rule to keep secret information furnished to the state of violations of its laws, [***23]but this commendable public policy must yield to a higher, or at least an equal, right accorded to an accused to have a court investigate the facts material to his offense in a criminal prosecution, and sometimes the departments of government will be put to a choice of either foregoing a criminal prosecution or disclosing the source of material information necessary to the conduct of orderly judicial procedure."

   On the other hand, courts of high authority have ruled that compulsory disclosure is not mandatory in all cases dealing with probable cause. In United States v. Li Fat Tong, 152 F. 2d 650, the Second Circuit Court upheld the refusal of the trial judge to compel disclosure of the informer whose information led to the arrest on the ground that knowledge of the name would not appear to have aided the defense at the trial.  The Court of Appeals of the Fifth Circuit, speaking through Judge Hutcheson, agreed with the Tong ruling in Cannon v. United States, 158 F. 2d 952, cert. denied 330 U.S. 839, 91 L. Ed. 1286, rehearing denied 331 U.S. 863, 91 L. Ed. 1869, holding the trial judge to have been justified in refusing to compel disclosure of the informer's name, where[***24] there was only weak corroboration of the informer's information.  In Goetz v. United States, 39 F. 2d 903 (5th Cir.), officers arrested the accused in a building other than his home for making liquor, acting pursuant to a tip of an informer. The appellate Court held that it was not error for the trial court, [*284] in his discretion, to refuse to compel the government agents to give the name of the informer. In Mitrovich v. United States, 15 F. 2d 163 (9th Cir.), a government witness testified that premises in which liquor was found were pointed out to him by an informer. The appellate Court held it was not error for the trial court to have sustained an objection to a question asking the witness to name the informer.

   In McInes v. United States, 62 F. 2d 180 (9th Cir.), cert. den. 288 U.S. 616, 77 L. Ed. 989, the officer who stopped a car and arrested the occupant upon finding liquor in the car, was not required to tell the name of the informer who told him the car would be carrying contraband.

    The Court of Appeals for the Eighth Circuit in Nichols v. United States, 176 F. 2d 431, held that the accused was not entitled to have disclosed the name of the[***25] informer who had furnished the government with probable cause to believe he would be in his car with a load of liquor at the time and at [**92]the place where the agents arrested him without a warrant.

   Judge Murrah, for the Court of Appeals for the Tenth Circuit, said in a probable cause case that "* * * in the public interest, the identity of the informant is privileged, unless it becomes relevant and helpful to the defense * * *.  Within this general rule the matter of disclosure rests largely in the discretion of the trial court." United States v. One 1957 Ford Ranchero Pickup Truck, 265 F. 2d 21, 26.

   Some State courts have also taken the view that the decision as to whether or not to compel disclosure of the informer's identity in probable cause cases is in the sound discretion of the trial judges.  In State v. Edwards, supra, 317 S. W. 2d 441 (Sup. Ct. Mo. en Banc), a reliable informer told police that accused, whom they knew, was selling narcotics from his car.  They followed accused and, seeing a known drug addict in the car with him, stopped the car and arrested him.  The Court held that there was reasonable cause to believe accused had committed a felony. In[***26] a prior case the Missouri Supreme Court had held that an arresting officer had the unqualified right to withhold the identity of the informer. The trial court, in the case under discussion, had felt bound by that case and declined to require disclosure [*285] of the name of the informer. The Court modified its prior holding, saying (p. 446): "* * * there are many cases holding that an inflexible rule is never to be announced in regard to divulging the identity of persons giving to police officers information which has a direct bearing upon the constitutional rights of persons subjected to criminal action as a result of such information," and went on to conclude that, "[e]ach case is ruled in the light of its facts * * * if due regard be given to the demands of justice to the public on the one hand and the constitutional rights of the defendant on the other, each case must be considered on its merits * * *.  As is said by Wigmore * * * and assumed in Roviaro v. United States, supra, the question of whether disclosure of the identity of a non-participating informant is essential to assure a fair determination of the issue in any criminal case is for the trial court in the [***27]first instance."

   In Simmons v. State, 281 S. W. 2d 487 (Tenn.), the lower court failed to take the case from the jury because the arresting officer could not give the name of the informer whose information furnished probable cause for arrest without a warrant.  The Court held disclosure was in the sound discretion of the trial judge.  The Court said (p. 492): "* * * it is evident that the position of our original opinion must be sustained, that is, that it is a discretionary matter with the trial judge as to whether or not he requires the officer to give the name of the informant when testifying about this arrest in the absence of the jury." Also cf. Hudson v. State, 243 S. W. 2d 841 (Tex. Cr. App.).

   While there is much logic and sound reasoning in the Priestly case and the quoted portion of its opinion clearly points out the defendant's position in most cases where the probable cause for his arrest is based wholly, or necessarily in part, on information received from an informer, we do not deem it necessary nor desirable to establish such a hard and inflexible rule as is stated in that case.  Of course, disclosure may be necessary in many instances as the only means[***28] available to afford the traverser an opportunity to establish that no informers did, in fact, exist; or, if they did exist, they did not transmit the information claimed.  On the other hand, [*286] there may be circumstances that call for the trial judges to exercise their sound discretions as to whether disclosure should be required.

   We think the reasonable and proper rule after a careful consideration of all of the authorities, to be that in criminal cases where the probable cause for a defendant's arrest depends wholly, or in [**93] part, on information received from a nonparticipating informer, if the name of the informer is useful evidence to vindicate the innocence of the accused, lessens the risk of false testimony or is essential to a proper disposition of the case, disclosure should be compelled, or the evidence obtained by reason of the arrest and search suppressed.  State v. Edwards, supra, 317 S. W. 2d at page 447; Wilson v. United States, supra, 59 F. 2d at page 392; 8 Wigmore, Evidence (3rd Ed.), Section 2374.  If the accused asserts any substantial ground indicating that the identity of the informer is material to his defense or the fair determination [***29]of the case on the issue of probable cause the trial court should require the informant's name to be given (or the evidence suppressed) so that the informant may be summoned and interrogated if it be necessary to do so in order to determine whether or not the officer had probable cause to make the arrest. Simmons v. State, supra, 281 S. W. 2d 487. "Of course, it is well established that the so-called successful result of an unlawful search and seizure has no bearing upon its legality and cannot be considered." United States v. Blich, supra, 45 F. 2d 627. The restrictions upon searches and seizures are designed for protection against official invasion of privacy and the security of property.  They are not exclusionary provisions against the admission of kinds of evidence deemed inherently unreliable or prejudicial. Jones v. United States, 362 U.S. 257.

   In the instant case the trial judges did not purport to decide whether the names of the informers were material to the defendant's defense or the determination of the issue of probable cause. While the record gives indication that the attack of the defendant was on the existence of probable cause, assuming the officers[***30] to have heard what they said they were told and to have seen what they said they saw and not on [*287] whether they had in fact received the information on which they claimed to have acted, or their credibility, we think the defendant was entitled to have had a proper exercise of the trial court's discretion as to whether disclosure was required in the interest of justice.  The evidence without the informers' communications was insufficient to establish probable cause for the defendant's arrest. His only defense to the misdemeanor count was to show that his arrest had been made without probable cause, and, therefore, the evidence obtained by his subsequently being searched was inadmissible.  Under these circumstances the names of the informers could have been necessary in order to afford the accused an opportunity to show, if possible, that the officer arrested him without probable cause. The officer did not state that he knew the informers to be reliable people, that they had ever furnished reliable information before nor anything else about them other than they were neighbors of the accused.  The names also could have been necessary to afford the accused an opportunity to [***31]rebut, if possible, the testimony of the officers, as well as to prevent the possibility (without the slightest reflection upon the integrity of the officers instantly involved) of false testimony. In situations of this nature, it may be possible for the accused to establish that no such informers exist, or, if they do exist, they did not transmit the information claimed; but, if an officer be allowed to establish the probable cause for making an arrest by hearsay information that is alleged to have been received, without a thorough inquiry by the trial judge to satisfy himself of the reasonableness of the officer's reliance on the informers, or any requirement that his source of knowledge be disclosed, or possibility that the hearsay evidence will be rebutted, it places very precious rights of the individual in serious peril. For the reasons, and under the authorities named above, we hold that the names of the informers should have been disclosed to the traverser in accordance with his request, or the testimony relative to the information received from the informers and taken from him by reason of his search stricken.  This will require a reversal of the judgment of conviction under[***32] [**94] the theft count of the second indictment.

   [*288] III and IV

   These final contentions of the appellant may be considered together.  He claims that the evidence was insufficient to sustain the court's finding that he was guilty of statutory grand larceny under the second count of the first indictment and that the breaking and entering occurred in the nighttime under the burglary charges contained in the first count of each indictment. He argues that there was no evidence that he was ever in possession of the ring alleged to have been stolen from the Collinson home, and, without the fact being established that he took the ring, the State failed to prove that he stole property of the value of $100 or more.  Code (1957), Article 27, Section 340.

   We have repeatedly stated our duty when reviewing the sufficiency of the evidence to sustain a conviction in a criminal proceeding.  In Clay v. State, 211 Md. 577, 580, we said, "The function of this Court is merely to decide whether there was evidence, or proper inference from the evidence, upon which the trial court could find the defendant guilty."

   The question as to whether or not larceny has been committed is usually [***33]one of fact and the question as to who committed it is one of fact, and either question may be proven by direct proof or circumstantial evidence. If there be no direct evidence on either point, it is our duty to determine whether the evidence adduced is sufficient to support rational inferences that larceny has been committed and the accused is the one who perpetrated the crime. In this case, we have little difficulty on either point.  There was direct testimony that Mrs. Collinson owned a diamond ring, which was in her home prior to the burglary, and was missing immediately thereafter and never found.  There was evidence, admitted without objection, that indemnification for the loss had been made by an insurance carrier.  There was also direct evidence that the Collinson home had been broken, entered and ransacked not more than a few hours before certain of the personal articles stolen from the Collinson home were discovered upon the person of the defendant.  These facts, if believed by the trial court (and evidently they were), were clearly sufficient, we think, to support the inferences that the ring was [*289] stolen and that it was stolen by the accused.  Cf. Hoy v. State[***34] , 85 N. E. 2d 493, 496 (Ind.); State v. Zekich, 132 A. 289 (N. J.); Bord v. United States, 133 F. 2d 313, 314 (Ct. of Appls. D. C.).

   We also find ample evidence in the record to support rational inferences that the breakings and enterings were after dark. Bowser v. State, supra; Hochheimer, Criminal Law (2nd Ed.), Section 275.  Both the Collinsons [first indictment] and the Wolfes [second indictment] left their homes around dusk, about 7:00 P.M. on the evening of May 22, 1959.  The Collinsons returned around 10:00 P.M. and the Wolfes around midnight, each to find that their homes had been broken and entered.  The appellant was seen at the rear of the Collinson home and between it and the house next door at about dusk, the approximate time when the Collinsons and the Wolfes left their homes, and also after dark, acting in a suspicious manner by darting and hiding behind bushes and the chimney when anyone would appear or when he was brought into view by the lights of passing automobiles. n5 The appellant lived in a rooming house next door to the Collinson home, entrance into it (the Collinson home) had been made by cutting the screen on the patio which was to the rear. [***35] The Wolfe home was some little distance from the Collinson residence.  And the accused was apprehended shortly after midnight in a taxi-cab returning to his place of residence next door to the Collinsons.  We think the triers of facts could logically and rationally [**95] deduce that one who lives next door to a dwelling that he is going to enter by cutting the screen on the ground level would normally await until after dark to do so.  Especially is this true when the Collinsons did not leave their home until about 7:00 P.M. and the accused had been seen acting in a suspicious manner in the rear of their dwelling, shortly after dark, by hiding behind bushes, a lumber pile and the chimney.  We also think the trial court could rationally infer that the Collinson home was entered before the Wolfes' was, due to the fact that the appellant was seen at the rear of the Collinson home at about the time the Collinsons [*290] left and shortly thereafter; and when he was apprehended he was in a taxi-cab returning from somewhere.  The probabilities are that had he entered the Collinson residence after the Wolfes', he would simply have walked to his place of abode next door to the Collinsons[***36] and would have had no need for the taxi-cab.  We therefore conclude, as stated above, that the evidence amply supported rational inferences that both breakings and enterings were after dark. 

n5 No motion was made to limit this evidence to the question of probable cause.

   Judgment in No. 4653 affirmed.  Judgment in 4654 affirmed on first count of the indictment, and reversed on second count and case remanded for a new trial on said second count. 

HETRICH et al. v. COUNTY COMMISSIONERS OF ANNE ARUNDELCOUNTY et al. 
No. 207, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 304; 159 A.2d 642; 1960 Md. LEXIS 336

 April  14, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  appointment, incompatible, manager, county commissioner, business manager, common law, ineligible, vacate, duties, de facto officer, public policy, appointing, incumbent, appoint, nullity, public office, general rule, appointed, ineffective, elected, salary, void, third persons, incompatibility, ineligibility, subordinate, colleagues, appointee, county government, common law rule

COUNSEL: Samuel Schenker, for appellants.

   James C. Morton, Jr., and W. Harvey Beardmore, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*306] [**643] The appeal is by taxpayers who sought unsuccessfully to have the Circuit Court for Anne Arundel County issue the writ of mandamus to compel Frank W. Wilde to vacate the office of County Commissioner by reason of having accepted the office of County Business Manager. [***5]

   Wilde was elected in 1958 to a four year term as commissioner, was made president of the Board of Commissioners, and is still serving in both capacities.

   The County Business Manager resigned on March 24, 1959, and that same day the Board accepted the resignation as of March 31 and "appointed Frank W. Wilde as Acting County Manager without pay until a permanent County Manager is appointed." Wilde took over the duties of Manager on April 1, and on April 17 executed a bond for faithful performance in the amount of $25,000 as required of that officer by Sec. 2-37 of the Anne Arundel County Code (1957 Ed.).  On May 28, 1959, the petition for mandamus was filed, and on June 9 Wilde ceased acting as Manager. It is stipulated that he received no salary other than as County Commissioner and took no oath of office.

   Below, as in this Court, the case proceeded on the recognition that a County Commissioner holds an office of profit within the meaning of Article 35 of the Declaration of Rights of the Maryland Constitution.  The trial judge held that the position of County Business Manager was also an office of profit and one incompatible with the office of County Commissioner under common[***6] law rules, so that the acceptance of [*307] the second office may have caused Wilde automatically to have vacated the first.  He held, however, that in the exercise of a sound discretion the writ need not issue because it would serve no useful purpose in that Wilde at the time of trial had vacated the second office. We concur in the result reached by the trial judge, although for reasons that differ from his.

   We agree that the County Business Manager of Anne Arundel County is an officer.  A number of tests have evolved as aids in recognizing an office -- is an oath prescribed, does the holder exercise some part of the sovereign power in his own right, is a commission issued, is there a definite term or tenure fixed by law, is a bond required?  None of itself necessarily is determinative.  In Pressman v. D'Alesandro, 211 Md. 50, 55, the ultimate test was succinctly stated in this fashion: "This Court has stated that a position is a 'public office' where it has been created by law and casts upon the incumbent duties which are continuing in their nature and not occasional and call for the exercise of some portion of the sovereignty of the State.  Buchholtz v. Hill, 178[***7] Md. 280, 13 A. 2d 348." See also State to Use of Clark v. Ferling, 220 Md. 109, 113. The Act which provided for a County Business Manager -- Chapter 638 of the Acts of 1947, codified as Sections 2-35 through 2-42 of the Anne Arundel County Code (1957 Ed.), says in Sec. 2-35: "There is hereby created the office of county business manager." Sec. 2-36 refers to "the duties of his office." Sec. 2-39 provides that "[i]n the performance of his duties * * * the county business manager shall represent the county in all departments of the county government. It is the intent of this article to place under his direct supervision all departments, offices and agencies of the county government within the limits now or hereafter imposed upon the jurisdiction of the board of county commissioners * * *." Sec. 2-40 requires the manager, among various other things, to "[a]ppoint and, when necessary [**644] for the good of the service, remove any officers and employees of the county * * *" (other than in the police department and board of licensing commissioners).  Sec. 2-37 requires the manager to file a bond in the sum of $25,000.  Clearly, the manager exercises continuously a substantial[***8] part of the governmental power in Anne Arundel County.

   [*308] We agree with the trial court also that the offices of County Business Manager and County Commissioner are incompatible. The fundamental test of incompatibility at common law is whether there is a present or prospective conflict of interest, as where one office is subordinate to the other or subject to supervision by the other, or where the incumbent of one office has the power to appoint or remove or to set the salary of the other.  McQuillen, Municipal Corporations, Sec. 12.67 (3rd Ed.); 67 C.J.S., Officers, Sec. 23 (a).  The statute puts the power of appointment and removal of the Manager in the County Commissioners and they fix his salary over a minimum.  "He shall be responsible to the board of county commissioners for the proper administration of all affairs of the county * * *."

   In Lilly v. Jones, 158 Md. 260, 266, in holding that one who was a member of both the City Service Commission and the Port Development Commission held incompatible offices, this Court adopted this standard: "The test of incompatibility is the character and relation of the offices; as where one is subordinate to the other, [***9] and subject in some degree to its revisory power; or where the functions of the two offices are inherently inconsistent and repugnant.  In such cases it has uniformly been held that the same person cannot hold both offices." The language is apposite here, and the applicable code provisions makes it clear that the two offices are incompatible.

   The general rule at common law is that if an officer accepts a second office which is incompatible with the first, he vacates the first.  Lilly v. Jones, supra. Many courts have adopted a qualification to the general rule if the one who accepted the second office was ineligible for that office.  It is held in such instances that the attempted appointment was void, a nullity, and that the second acceptance was illusory, some courts deciding that the incumbent was not even a de facto officer, others that he was.

   In Kimble v. Bender, 173 Md. 608, Kimble was appointed a justice of the peace for Allegany County, an office created while he was a State senator.  The Court held that he was ineligible as a justice because Sec. 17 of Art. III of the Constitution [*309] of Maryland specifies that no senator shall during the term for which[***10] he was elected "be eligible to any office, which shall have been created * * * during such term." Judge Parke, for the Court, said (p. 622): "The appointment of an ineligible person is a nullity, except that the official acts of such a person are regarded as the acts of an officer de facto. So the official acts of the ineligible respondent, who has acted as a justice of the peace at large under a valid act but under an invalid appointment are the acts of a de facto officer, * * * are as valid and effective, where they concern the public or the rights of third persons, as though he were an officer de jure."

   The ineligibility which makes the appointment to a second office a nullity has not been limited to that created by constitution or statute.  Even in the absence of these formalized prohibitions, at common law, on the ground of public policy a member of an appointing body is ineligible for appointment to a conflicting office by that body, even though his own vote is not essential to the appointment. McQuillen, Municipal Corporations, Sec. 12.75; 67 C.J.S., Officers, Sec. 20; 42 Am. Jur., Public Officers, Sec. 97, p. 955; Annotation: 31 L. R. A. (N. S.) 575.[***11] Cases supporting the texts and the annotation include Wood v. Town of Whitehall, 197 N. Y. S. 789 (affirmed 201 N. Y. S. 959), in which many of the cases so holding are discussed; [**645] Meglemery v. Weissinger (Ky.), 131 S. W. 40; Gaw v. Ashley (Mass.), 80 N. E. 790; People ex rel. Ellis v. Lennon (Mich.), 49 N. W. 308; Kinyon v. Duchene, 21 Mich. 498; State v. Kearns (Ohio), 25 N. E. 1027; State ex rel. Smith v. Bowman (Mo. App.), 170 S. W. 700; Arbogast v. Shields (W. Va.), 14 S. E. 2d 4; Commonwealth ex rel. McCreary, Dist. Atty. v. Major (Pa.), 22 A. 2d 686, 689; State v. Thompson (Tenn.), 246 S. W. 2d 59. See also Beebe v. Board of Supervisors of Sullivan County, 19 N. Y. S. 629 (affirmed on opinion below 37 N. E. 566); and Commonwealth v. Douglass, 1 Bin (Pa.), 77.
 
   The cases ground the public policy prohibition on the need for impartial official action, without suspicion of bias which may be against public interest. They say the appointing board cannot absolve itself of ulterior motives if it appoints [*310] one of its own, whether or not his vote was necessary to the appointment, since the opportunity improperly to[***12] influence the other members of the board is there.  The necessity that public bodies be free from personal influence in making appointments to office cannot be secured when the appointee has the real opportunity his associations and relations afford to place his colleagues under obligations they may feel require repayment.

   It has been held expressly in various instances in which the appointee to the second office was ineligible for appointment that purported acceptance of the second did not vacate the first.  Cases in which the ineligibility for the second office was constitutional and continuance in the first office was not affected by acceptance of the second, are McWilliams v. Neal (Ga.), 61 S. E. 721, and State ex rel. Childs v. Sutton (Minn.), 65 N. W. 262. Cases of statutory bans that reached a similar result are: State v. Kearns, supra; Daviess County v. Goodwin (Ky.), 77 S. W. 185, 186 ("The authorities relied on for appellant as to the acceptance of an incompatible office have no application, as the order of the fiscal court appointing the county judge as supervisor was void, and vested in him no right to the office.").

   There are two leading cases in which the[***13] ban was neither constitutional nor expressly statutory.  In Commonwealth ex rel. McCreary, Dist. Atty. v. Major (Pa.), 22 A. 2d 686, a councilman of the city of Beaver Falls was elected by the council a member of the Board of the Beaver Falls Municipal Authority.  Quo warranto was sought to remove him from the second office, and was granted.  The Court held that a member of the Board of Authority was a public officer and that "well-established public policy prohibits respondent and his colleagues from using their official appointing power as councilmen of the City of Beaver Falls to appoint themselves members of the Board of Authority." (p. 688) The Court rejected as untenable the proposition of the respondent that by agreeing to serve as a Board of Authority member without pay, he could make his appointment to the second office valid.

   In State v. Thompson (Tenn.), 246 S. W. 2d 59, 61, a citizens bill in the nature of a quo warranto charged Thompson [*311] with having forfeited his office as a member of the Board of Commissioners of Paris, Tennessee, by accepting and exercising the office of City Manager, to which the Board of Commissioners had elected him.  The[***14] Court said: "'The rule at common law is that, where one accepts a second office incompatible with one already held by him, the office first held is thereby ipso facto terminated without judicial proceedings of any kind.' * * * However, if Thompson's appointment to the second office was void, it follows that his attempted acceptance of that second office was likewise legally ineffective. In this plight of the case the question arises as to whether this common law rule would apply." The holding was that the Board had no power either under the statute or at common law to appoint one of its own members City Manager and that "In as much as Thompson's attempted acceptance of the second [**646] office (City Manager) was legally ineffective, it results that Thompson has not, legally speaking, held a second office while holding his first and incompatible office of Commissioner." The case was remanded for the entry of a decree adjudging that Thompson had been usurping unlawfully the office of City Manager, that he did not vacate his office as Commissioner, that he be enjoined from further exercise of the office of City Manager and be ordered to repay the salary he had been paid as such. [***15]

   It is our view that the reasons we have discussed, which make the office of County Manager of Anne Arundel County and the office of County Commissioner incompatible, tend to show that the Legislature did not intend the County Commissioners to appoint one of their number as County Business Manager. This view is strengthened by two sections of the Anne Arundel County Code (1957 Ed.), to which reference has not yet been made.  Section 2-42 provides that the duties of business manager during his temporary absence or disability shall be performed "by a qualified administrative officer of the county, designated in writing by the manager, or by the board of county commissioners, by appropriate resolution, in the event the manager fails to make such designation." Section 9-42 makes this provision: "Whenever the county business manager is absent for any cause or a vacancy exists in [*312] the office of county business manager, the director of the department of assessments shall perform the duties and exercise the powers of the county business manager under this article."

   We agree with the reasoning of the Supreme Courts of Pennsylvania and Tennessee in the Beaver Falls and Paris[***16] cases, cited above, and hold that under the applicable statutes and at common law one holding the office of County Commissioner of Anne Arundel County was ineligible for appointment by the Commissioners to the office of County Business Manager. The attempted appointment of Wilde to the latter office was ineffective and he did not hold a second office of profit within the meaning of Art. 35 of the Declaration of Rights, or an incompatible office under the common law rule. This being so, Wilde did not vacate the office of County Commissioner and the trial court was correct in refusing to grant the writ of mandamus ousting him from that office.

   We think the better reasoned authority indicates that Wilde's acts as County Business Manager, having been performed under color of authority, were valid as to third persons and the general public, as those of a de facto officer.

   Order affirmed, with costs. 

CLARKE, JR. v. CLARKE, Substituted Trustee, et al. 
No. 111, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 153; 159 A.2d 362; 1960 Md. LEXIS 320

 March  28, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, C. J.

DISPOSITION: Decree affirmed, costs to be paid from the trust estate.

CORE TERMS:  descendant, per capita, testator, grandchildren, stirpes, daughter, life tenant, infant, died, gift, corpus, heirs, deceased, tenant, ancestor, concurring opinion, generation, lineal descendants, dictum, trust estate, remainder, repeated, grandson, surviving children, testatrix, conveyor, intestate succession, bequest, sisters, membership

COUNSEL: Charles G. Page, with whom was William J. McWilliams on the brief, for appellant.

   C. Maurice Weidemeyer, with whom was Thomas M. Schifanelli on the brief, for Robert Fulton Clarke and Thomas B. Clarke, two of the appellees.

   Michael Demyan, with whom was John Demyan, Jr., on the brief, for Angela G. Clarke, Substituted Trustee, the other appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Hammond, J., delivered the opinion of the Court.  Prescott, J., filed the dissenting opinion, in which Horney, J., concurs.

OPINIONBY: HAMMOND

OPINION: [*155] [**363] We are called upon to decide whether a testamentary gift to the issue of a life tenant, with no intrinsic or extrinsic evidences of intent, results in a grandchild of the life tenant sharing equally with his father, a child of the life tenant, or whether the father takes to the exclusion of his son.  The decision below was that the father took, and the infant son, by his guardian, appeals.

   The will of J. Beauregard Clarke, a resident of Anne Arundel County[***4] who died in 1913, leaving a will executed two weeks before his death, left the residue of his estate [**364] in trust to pay the income to his widow for life, and at her death to his son Ernest for life and "from and after the death of my said son * * * then to his issue, absolutely." Ernest Clarke had three sons.  One died before his father without issue; the other two survived their father, and are now living.  Of these two, Thomas has no children, and Robert Fulton, one child -- Robert Fulton Clarke, Jr.

   In 1950, while Ernest Clarke, the life tenant, was still living, his grandson, Robert Fulton Clarke, Jr., by his mother, the divorced wife of Robert Fulton Clarke, brought suit for a declaration of his interest in the trust estate, for an accounting by the trustee and for protection against dissipation of the estate.  The chancellor decreed that "by a true construction of the will * * * the word 'issue' means all descendants of J. Ernest Clarke," and that his grandson, Robert Fulton Clarke, Jr., "has a contingent remainder in the trust property dependent upon his survival of J. Ernest Clarke, upon which event he will be entitled to share equally with other descendants living[***5] at J. Ernest Clarke's death."

   It was further ordered that the substituted trustee file a [*156] report of her administration, and a bond for faithful performance.  The appeal was from that decree, and the chief contention of J. Ernest Clarke, his wife Angela, the substituted trustee, and their two sons, Thomas and Robert Fulton, was that the word "issue" in the will should be construed to include only the children of J. Ernest Clarke, and the infant plaintiff thus had no interest in the trust estate.

   This Court rejected that contention in the case entitled In re Clarke's Will, 198 Md. 266, and held that the infant had a potential future interest in the corpus of the trust sufficient to sustain the action of the chancellor in requiring the substituted trustee to account and post bond.  All other questions, including the infant's contention that at the death of his grandfather Ernest, the life tenant, he would be entitled to share per capita with his surviving children and descendants even though his father should also then be alive, were held to be prematurely presented and "reserved for future determination as the need may arise."

   When the life tenant died in 1958 and[***6] the trust estate was ready for distribution, the need arose to decide the infant's claim to equality with his uncle and his father.  The chancellor held that the uncle and father took in equal shares to the exclusion of the infant, saying the testator had used "issue" as the equivalent of "children."

   The parties agree that "issue" is used as a word of purchase, as a word indicating the class who are to take at the death of the life tenant. n1 They agree, further, that no evidence [*157] of intent as to what the testator meant by the word "issue" can be found in the will or in the evidence.  We concur in both instances.  The opinion in the first appeal established that its meaning was broader than "children," a meaning it [**365] often has been given. n2 Miller, Construction of Wills in Maryland, Sec. 90.

n1 The Rule in Shelley's case does not have application for several reasons.  The will was executed after the abolition of the Rule by Ch. 144 of the Acts of 1912, Code (1957), Art. 93, Sec. 366.  Also, the estate of the life tenant was equitable, those of the remaindermen are legal; the two not being of the same quality, the Rule would not apply.  Cowman v. Classen, 156 Md. 428, 435-436. And see Timanus v. Dugan, 46 Md. 402, 417-419, where the devise was to "the said issue in fee" and it was held that the addition of the words "in fee" evidenced an intent that the two words first quoted were words of purchase.  In Shreve v. Shreve, 43 Md. 382, 397-398, are found instances as to the effect of words of distribution upon the word "issue" as showing the estate in the first taker was for life.  See also Horwitz v. Safe Deposit & Trust Co., 172 Md. 437. There is a full discussion in Miller, Construction of Wills in Maryland, Sec. 359.

[***7] 

n2 The decree in the lower court entered after a mandate in the first appeal came down said "that by a true construction of the will of J. Beauregard Clarke, deceased, the word 'issue' means all descendants of J. Ernest Clarke * * *." Apparently this phraseology reflected the understanding of the parties of the meaning of this Court's opinion.

   We accept the contention of the infant appellant that the word "issue" was used by the testator to mean "descendants." n3

n3 In Goldsborough v. Martin, 41 Md. 488, 501, where the question for decision was the rule against perpetuities, Judge Miller said for the Court: "The term 'issue' is here used without restriction, and embraces all the lineal descendants of the daughter." See also Lee v. Waltjen, 141 Md. 458, 462; Ryan v. Herbert, 186 Md. 453, 460.

   The decision that "issue" means "all descendants" does not answer the ultimate and narrower question in the case -- do[***8] the descendants of different generations take equally, or do those of the younger generation take only as representatives of deceased ancestors, that is, can a child compete with a living parent?

   The infant says the answers to the questions are in the affirmative on the strength of the English rule (that "issue," unqualified when used as a word of purchase, is the equivalent of "descendants" and that the descendants, of whatever generation, take per capita -- as was held in Davenport v. Hanbury (Ch. 1796), 3 Ves. 257, 30 Eng. Rep. 999, for example), which, he claims, the Maryland cases long ago made the law of this State.  His father and his uncle argue that the later cases indicate that Maryland has adopted the rule of the Restatement, Property, Future Interests, Sec. 303 -- "When a conveyance creates a class gift by a limitation in favor of a group described as the 'issue of B,' or as the 'descendants of [*158] B,' * * * then, unless a contrary intent * * * is found * * * distribution is made to such members of the class as would take, and in such shares as they would receive, under the applicable law of intestate succession if B had died intestate * * *". n4 The[***9] comment, speaking of the English rule, said, "Whatever justification this construction may have had in its origin, it is clear that its retention in the United States at the present time would cause serious deviations from the intent normally present in the mind of a conveyor limiting property to the 'issue of B.'" The comment continues, referring to the Restatement rule: "This rule rests upon the fact that conveyors normally use 'issue' as substantially the equivalent of 'heirs of the body,' and seldom desire the inequalities between stirpes which were unavoidable under the earlier English rule."

n4 The first illustration under Sec. 303 (1) assumes that the rule in Shelley's case has been abolished and embodies substantially the language of the will in the case before us, in a conveyance as follows: "To my Son B for life and thereafter to the issue of B absolutely" and says that the distribution will be exactly as if B had died intestate.

   We have found no direct, no binding decision on the point in Maryland. [***10]n5 There are cases in which the English rule has been referred to as stated but in all of them the basis of decision was the intent of the conveyor disclosed by the instrument.  In McPherson v. Snowden, 19 Md. 197, 227-230, which cited Davenport v. Hanbury, a deed of trust gave income for life to four [**366]daughters (the children of any daughter dying to take the mother's share during the continuance of the trust), after the death of the last daughter to die, the corpus was given outright to "all the issue of all the daughters." [*159]A concessum in the case was that "issue" meant "children." From the contrast between the disposition of income which the children of a deceased life tenant took as her representatives, and the disposition of corpus to children "aggregated into a class, with no relation to their parents which would indicate that the issue should take through them," and from the terms of the grant of corpus ("to all the issue of all the daughters,") the Court found a clear intent to make the children the "immediate and equal recipients" of the trust estate.

n5 In the case of Worthington v. Milnor in the Circuit Court for Baltimore County, Daily Record of Aug. 16, 1940, in which counsel outstanding in the field, including the late Charles McHenry Howard, participated, the Court held that the word "issue," simpliciter referred to the children of the equitable life tenant and did not include her four grandchildren whose parents were living.  In the opinion it is said: "The question is a novel one in this State. There is no decision of the Maryland Court of Appeals construing the word 'issue' in a will, used without qualification, and unexplained by other provisions in the will."

[***11]

   In Allender v. Keplinger, 62 Md. 7, the will directed the distribution of the corpus after the death of the last life tenant "equally" and "share and share alike" among their issue.  A clear intent was found that the surviving children and grandchildren of the life tenants (the parents of the grandchildren were dead) were to take equally, that is, per capita.

   In Levering v. Orrick, 97 Md. 139, the will expressly ordered a per capita distribution among the descendants of a life tenant. A reference to the English rule clearly was dictum, since the express direction for a per capita division was a clear evidence of intent.

   In Requardt v. Safe Deposit & Trust Co., 143 Md. 431, 434, there were three equitable life tenants and children of a deceased life tenant took his share of the income during the continuance of the trust.  No distribution of corpus was to be made until the death of the last of the life tenants to die.  Then the will declared, "said trust shall cease and the corpus be divided equally among their surviving children." Speaking of the direction for equality of division, the Court held: "A distribution per stirpes would not satisfy that requirement. [***12] It would result in an unequal division of the estate among the designated remaindermen.  It is only by a per capita distribution that the testator's declared purpose as to the disposition of the corpus can be given effect." The Court then referred to other cases in which the use of the words "equally" or "share and share alike" were found to evidence an intent to require a per capita distribution, and noted the dictum in Levering v. Orrick, supra, that the English rule is that a gift to "descendants" simpliciter, as well as "equally" or "share [*160] and share alike," imports a per capita distribution to all descendants, of whatever generation. Clearly, this observation was not a necessary basis of decision in a case where plain intent was evidenced.

   When we turn the coin we find that the Maryland cases stamped on that side favor the proponents of the rule of the Restatement, the appellees, to perhaps a slightly greater degree than those on the reverse side do the proponent of the English rule, the infant appellant, but that they are, by no means, conclusive of the question to be answered in the case.

   In Henderson v. Henderson, 64 Md. 185, 192, the disposition[***13] was to three equitable life tenants, children of the testatrix, with remainders to their "lineal descendants" -- subject to provisions "in case either of my said children should die without leaving issue." One child died before the testatrix. When she died her other two children claimed absolute estates under the rule in Shelley's case.  The Court held that the Rule did not apply and that the children of the deceased child of the testatrix took an absolute interest in one-third of the estate, and that "it is also apparent that a trustee should be appointed * * * and that he should hold one-third of the property for each of the surviving children of the testatrix; and that on the death of either of said children of the testatrix, the share thus held should go, absolutely and free from the trust, to his or her issue, if there be any then living, per stirpes * * *." There was no discussion of the [**367] holding of the case that the distribution should be per stirpes.

    In Thomas v. Safe Deposit & Trust Co., 73 Md. 451, the language of the will was "at the death of my said daughters, or any of them, her share to pass to her issue, children or descendants * * *." The Court[***14] said: "The plain meaning of these words would seem to be that the testator intended to make provision for children in the first instance, if any, and for the descendants of deceased children."

   Mazziotte v. Safe Deposit & Trust Co., 180 Md. 48, was a case where the testator directed that upon the death of all the life tenants the trust should cease and the corpus be delivered "to the issue of my said four daughters, living at the termination of the trust per capita." The contest was between [*161]children and grandchildren of the life tenants. The eminent lawyer who represented the guardian ad litem for the infant grandchildren (who would take if the distribution were per capita) argued first in his brief that "issue" was synonymous with "descendants" and that where there is a distribution to "issue" simpliciter, it includes all descendants, who take per capita even though, in so doing, they take shares along with their living ancestors. Apparently in answer to this contention, Judge Bond for the Court said at page 50 of 180 Md.: "The word 'issue' in the disputed clause is clearly one of purchase.  * * * And standing alone, the meaning of it has been a subject[***15] of difference of opinion.  * * * Primarily, it embraces all lineal descendants. * * * But in Maryland it has usually been found equivalent to heirs of the body or those who would take in case of intestacy, thus rendering gifts to remoter descendants only substitutional, in place of gifts to deceased ancestors. Horwitz v. Safe Deposit Co., 172 Md. 437, 451, 192 A. 281; Miller, supra, Sec. 358, p. 1012." Having disposed of the first contention of the guardian ad litem, the Court held the meaning of the word "issue" was always a question of intention and that since the gift to issue had been expressly per capita, remoter descendants would share equally with their parents, citing among other authorities Restatement, Property, Future Interests, Sec. 303, Comment (i).  In his brief counsel for the guardian ad litem, in arguing his second point -- that the words "per capita" showed an intent for equal divisions among children and grandchildren -- had directed the attention of the court to the rule of per stirpes distribution (which he designated the minority rule) and to the fact that the "Restatement of Property, Future Interests, which has adopted the position [***16]  of the minority insofar as a remainder to 'issue' is concerned, specifically supports the contention of the appellant that where the remainder is 'to issue per capita' children must share with their living parents," citing Sec. 303 (i). (Emphasis supplied.).

   The language of Judge Bond, which has been quoted, does not refer to Sec. 303 (1) of the Restatement, Property, Future Interests, but its meaning is the same as that section, as is made manifest by the comment to Sec. 1, paragraph a, page [*162] 1658: "The change from the English rule began with increased emphasis upon the constructional factors sufficient to cause 'issue' to be construed as substantially similar to 'heirs of the body' and hence to cause the ascertainment of the takers thereunder by reference to the statute of intestate distribution."

   The concurring opinion of Judge Henderson in Patchell v. Groom, 185 Md. 10 (in which Judge Collins and Judge Markell joined), agreed with the majority that descendants of living ancestors do not share in a distribution to descendants "then living per stirpes and not per capita," but disagreed with the holding of the Court that the stocks of descent were[***17] the grandchildren of the testator and not his children, the life tenants. The concurring opinion referred to the view of the Restatement, Property, [**368] Future Interests, Sec. 303, that in a gift to a class composed of the issue of B or the descendants of B, distribution is made to those who would take and in such shares as they would receive under the applicable law of intestate succession. It was then said: "In so far as the Restatement requires distribution per stirpes of a gift to 'descendants' or 'issue,' without more, this reflects a change from the early English authorities, as to 'issue,' and from a dictum of Mr. Jarman in his first edition, as to 'descendants,' quoted by this Court in Levering v. Orrick, 97 Md. 139, 145, 54 A. 620, and by the majority opinion in the case at bar.  The rule of the Restatement was, however, adopted by this court in Mazziotte v. Safe Deposit & Trust Co., supra."

   The views of the concurring minority in Patchell v. Groom, supra, became those of the Court in Ballenger v. McMillan, 205 Md. 94, where again the distribution was to descendants of the grantor of the trust after the death of the life tenants, and was[***18] expressly directed to be made per stirpes and not per capita.  The holding was that the children of the grantor were the stocks of descent, and the Court quoted at length Judge Henderson's concurring opinion in Patchell, including the sentence that the Restatement rule had been adopted as Maryland law by the court in Mazziotte.

   The infant plaintiff here argues that Judge Bond's paraphrase of the Restatement rule in Mazziotte did not mean [*163] what it would appear to mean literally, but was talking of the word "issue" when construed as a word of limitation.  Although the statement was made in connection with a will executed before 1912, it was made (a) in a case in which, like the one before us, the rule in Shelley's case was not applicable because the life estates were equitable and the remainders legal and (b) in a case in which the Restatement rule (Sec. 303) of per stirpes distribution where "issue" is used without more had been cited to the Court and (c) after the legislature had abolished the rule in Shelley's case by Ch. 144 of the Acts of 1912, now Code (1957), Art. 93, sec. 366, by providing specifically that "any form of words" that limit a remainder, [***19] after a life estate to "heirs of the body" should be construed as words of purchase.  The appellant argues further that if it was intended to mean what it literally says, it was dictum and that the dictum has been perpetuated and compounded by dictum in the concurring opinion in Patchell and the majority opinion in Ballenger.  Certainly it is true that Judge Bond's statement was not necessary to the decision in Mazziotte, although as we have noted, it has more force than it would otherwise because it was a direct answer to, and dispositive of, a contention pressed earnestly and at some length by distinguished counsel in the case.  It is equally true that the reference to Sec. 303 of the Restatement was not necessary to the conclusion reached by Judges Henderson, Collins and Markell in their concurring opinion in Patchell, nor to the result reached by the Court in Ballenger, although it strengthened their conclusions, because the distribution under Sec. 303 would have been to the same persons who took under the decisions in those cases.  Also, the statement in the concurring opinion in Patchell, repeated in Ballenger that the view of the Restatement had been[***20] adopted as Maryland law in Mazziotte may have read more into Judge Bond's language than this Court then intended. n6 Nevertheless, it would seem [*164] that approval of the Restatement rule has been indicated by this Court, at least implicitly, three times, as well as by Judges Henderson, Collins and Markell, concurring.

 n6 Page, Wills, Cumulative Supplement, Sec. 1027, p. 416 n. 7, cites the Mazziotte case in support of the text (3 Page, Sec. 1027, p. 154) that "There is, however, a strong tendency to treat 'issue' as equivalent to heirs of the body; that is, such lineal descendants as would take under the statute of descent."

   [**369] The first two instances were Mazziotte and Ballenger, and the third is Robinson v. Mercantile-Safe Deposit & Trust Co., 214 Md. 30, in which the Restatement, Property, Sec. 303 (1), was quoted, as was comment (e) thereon, which states that where issue consisted of children of B and grandchildren of B, who are children of a living child of B, [***21] the grandchildren are wholly excluded from sharing in the distribution of the subject matter of the class gift unless a "'contrary intent of the conveyor is found from additional language or circumstances.'" In Robinson the distribution was directed to be made "to the issue or descendants of said Emanuel E. Robinson living at that time, per stirpes and not per capita," from which the Court found that the intent was that the distribution was to be stirpital, quoting comment (h) to Sec. 303 of the Restatement that conveyances "frequently contain language or have circumstances tending to corroborate the conclusions that the term 'issue' or 'descendants' has been used as substantially the equivalent of 'heirs of the body' and hence that distribution should be made in accordance with the law of intestate succession."

   Faced with the situation where we find no case a conclusive and controlling precedent, we think the meaning of "issue" should be determined as the Restatement suggests.  The English cases, which form the basis of the dicta in the cases relied on by the infant appellant, reached the result they did with reluctance and from force of necessity, as the judges of that[***22] day saw it.  3 Page, Wills, Sec. 1079 (Lifetime Ed.), notes that the English decisions originally came at a time when the share of a member of a class who died before testator, passed to the other members of the class, and not to his heirs or legal representatives, and then says: "The courts felt that they had no choice between permitting grandchildren to share equally with their parents and excluding them entirely, although they conceded that testator probably intended grandchildren whose parents were dead to take their parents' shares, and grandchildren whose parents were alive, to take [*165] nothing.  Being unable to give effect to testator's entire intention they preferred not to disinherit the grandchildren whose parents had died before testator, even at the expense of permitting the other grandchildren to take equally with their parents." Professor Page then points out that statutes with reference to lapse now prevent this result in almost all cases, and then says: "If the courts restrict 'issue' to the first generation, and distribute per capita, with representation if any of the first generation have died after the will was made and before testator dies, they will[***23] reach the result which the English courts wished to reach but could not.  Some of the American states have construed such a gift in this way.

   "Other courts persist in applying the English rule, and in dividing per capita among all generations, including those whose parents are living.  Where this rule is still in force it is an interesting example of a rule, undesirable from the first, and selected only as a choice of evils, which has persisted so long that it is strong enough to force recognition although the alternative evil has ceased to exist, and the choice of the result which was desired from the first is perfectly possible."

   The trend of the cases in other states is strongly in favor of the rule of the Restatement.  In several instances Courts have reversed or repudiated earlier decisions favoring the English rule and have adopted the rule of the Restatement and, in so doing, have pointed out, as did Professor Page, the reluctance of the English Courts to reach what they considered an undesirable result, unwanted by the testator. States in which this has been done include: Pennsylvania -- In re Mayhew's Estate, 160 A. 724 (see also In re Thorn's Estate , 46 A. 2d 258);[***24] Rhode Island -- [**370] Rhode Island Hospital Trust Company v. Bridgham, 106 A. 149; Minnesota -- In re Thompson's Estate, 279 N. W. 574. Other states increasingly have found the intention of the testator, where unrevealed except by the use of the word "issue" or "descendants," to be that surviving members of the first generation share among themselves per capita, with those of subsequent generations whose ancestors have died, taking by representation.  Massachusetts was one of the earliest.  In Dexter v. Inches, 17 N. E. 551, 554, Justice Holmes said for the Supreme Judicial Court of [*166]Massachusetts: "The difficulty which was felt by Lord Loughborough, in Freeman v. Parsley, 3 Ves. 421, in finding a medium between total exclusion of grandchildren and the admission of them to share with their parents, does not strike us as insuperable, * * *" and in Jackson v. Jackson, 26 N. E. 1112, the court made the flat holding, which has since been followed in the State, that "when by a will personal property is given in trust to pay the income to a person during life, and on the death of such person to pay the principal sum to his issue then living, it is to[***25] be presumed that the intention was that the issue should include all lineal descendants, and that they should take per stirpes, unless from some other language of the will a contrary intention appears."

   Other decisions reaching the same conclusion include: Wyeth v. Crane (Ill.), 174 N. E. 871, and Wilmington Trust Co. v. Chapman (Del. Chan.), 171 A. 222. Connecticut and South Carolina have reached the same result by holding that the meaning of "issue" is equivalent to that of the phrase "heirs of the body." See Greenwich Trust Co. v. Shiveley (Conn.), 147 A. 367, and Rembert v. Vetoe (S. C.), 71 S. E. 959. New Jersey seems to be the only State which continues to adhere strongly to the English rule.  The writers in the law reviews generally support the Restatement rule and predict that more and more courts will follow it.  See Schnebly, Testamentary Gifts to "Issue," 35 Yale L. J. 573; Comment, 37 Mich. L. Rev. 630, 633; Willard Brooks, Gifts to Issue -- Another View, 6 Ill. L. Rev. 230. See also 7 W. Res. L. Rev. 186.

   We conclude that the decree below was correct in directing distribution to the children of Ernest Clarke living at his death in equal shares[***26] to the exclusion of the infant appellant.

   Decree affirmed, costs to be paid from the trust estate.

DISSENTBY: PRESCOTT

 DISSENT: Prescott, J., filed the following dissenting opinion, in which Horney, J., concurred.

   Many members of the bench and bar, who have had occasion to examine carefully the question here involved, will [*167] unquestionably receive the majority opinion herein with somewhat of a shock, n1 as it completely overrules a long line of previous decisions of this Court and adopts the rule stated in Restatement, Property, 303 (1), which is diametrically opposed to the Maryland rule established in something over one hundred years.

n1 For examples, former Chief Judge Marbury, one of the ablest and most highly esteemed jurists this State has produced, who wrote the opinion in Patchell v. Groom, infra, and Frederick J. Singley, Jr., Esquire, whose splendid Md. L. Rev. article will be referred to later.

   The question involved is a narrow one.  A testator died leaving an equitable life estate to his[***27] son, and upon the death of the son, "then to his (the son's) issue, absolutely." The parties agree that the word issue is a word of purchase, i.e., it names the person or class in whom a new estate of inheritance is created; n2 and that there is [**371] nothing additional in the will nor in the evidence to indicate the testator's intent as to the actual mode of distribution.  A previous appeal in this case determined that the word "issue" was not the equivalent of "children," an interpretation which, however, has been frequently accorded it.  Miller, op. cit., Section 90.  And the majority, properly, accept the contention of the appellant that the word "issue" was used to mean "descendants." n3

n2 Words of limitation, of course, designate or limit the estate in the first taker.  It is important in the case at bar to know the real distinction between words of purchase and words of limitation.  When words of purchase are used, they designate the person or class to take, who take in their own right and not by representation, i.e., because they are heirs or distributees of an ancestor. Miller, Construction of Wills, Section 77.  The statement in this note must be qualified by saying this was the Maryland rule before the filing of the majority opinion herein, as will be demonstrated in the remainder of this opinion.

[***28] 

n3 This acceptance was due primarily to the decision in the previous appeal, In Re Clarke's Will, 198 Md. 266, where it was held the word "issue" did not mean "children" but "descendants." While not of controlling force, it is interesting to note that the majority make no mention or explanation of this significant language used in the opinion at page 271: "In the instant case there are several reasons why we think the word [issue] should be given the broader meaning [descendants instead of children].  * * * The testator could have had no particular persons in mind, since his son did not marry until three years after the testator's death.  There is nothing to indicate that the testator intended to prefer his putative grandchildren over his putative great grandchildren." It is obvious that the present holding of the majority does prefer the grandchildren even to the exclusion of the great-grandchild. [Italics added in the quotation.]

   [*168] The question, then, to be determined, succinctly stated, is this: When a will creates a class gift by a limitation in favor of a group described [***29]as the "descendants of B" and there is nothing found from additional language in the will or circumstances to indicate the intention of the testator, what, under the Maryland law, is the proper distribution to be made, when the living descendants of B, at the time of his death, are two sons and one grandson -- the grandson being the son of one of the living sons?

   The majority state they find no binding decision in Maryland upon the subject. n4 If this be so, many great judges of this Court and learned text-writers upon the subject have completely misconstrued the decisions of this Court, as will be clearly shown below.

n4 In support of this statement, they adopt the rather unusual practice of citing an opinion of the late Judge Lawrence, at nisi prius, to the effect that the interpretation of the word "issue," simpliciter, was a novel one in Maryland.  The learned judge would have had to have gone no further than to turn to the early case of Goldsborough v. Martin, 41 Md. 488 (1875), wherein it was said, "[t]he term 'issue' is here used without restriction, and embraces all lineal descendants of the daughter," to see that this statement is not accurate. If this quotation, alone, be not sufficient to show the statement inaccurate, see the interpretation placed upon the opinion in 2 A. L. R. 931. See also Timanus v. Dugan, 46 Md. 402, where the devise was to "issue in fee."

   The holding of Judge Lawrence was simply that the word "issue" as used in the will before him meant "children," an interpretation frequently accorded the same.  Shreve v. Shreve, 43 Md. 382, 401; Miller, op. cit., Section 90.

[***30]

   Before citing the Maryland cases, it may not be inappropriate to note that at a very early date there grew up two opposing rules upon the question here involved.  Maryland adopted and has adhered to what is termed the "general" or [*169]"basic" rule, while Massachusetts adopted and adhered to a minority rule. n5 Thus, we find in 2 A.L.R. 963, the following statement:

   "It is very generally held, except in Massachusetts, that under a gift to 'issue,' where the word is used without [**372] any terms in the context to qualify its meaning, the children of the ancestor and the issue of such children, although the parent is living, as well as the issue of deceased children, take in equal shares per capita, and not per stirpes, as primary objects of the disposition.  See McPherson v. Snowden (1862) 19 Md. 197; [and citations from other states] * * *

   "In Massachusetts, however, the courts have adopted the converse rule that the word 'issue,' where its meaning is unrestricted by the context, will be construed as importing representation."

n5 This Massachusetts or minority rule was adopted in Restatement, Section 303 (1), in about 1941, and is now adopted in Maryland, for the first time, in the majority opinion.

[***31]

   I turn now to the Maryland decisions and authorities, and I shall cite one English case cited with approval by this Court.

   In Miller, Construction of Wills, Section 96, we find the following:
 
"in bequests to 'descendants equally,' or to 'all the descendants' of any person, or the 'descendants' simply (without the word 'equally' or 'all'), [in other words, when used as words of purchase] the rule is that all take per capita unless a contrary intention appears.  Moreover in such a gift each individual of the stock takes an equal share concurrently with, not in place of, his or her parent; but where the distribution is to be per stirpes [when 'descendants' is used as a word of limitation] the principle of representation will be applied through all degrees, * * *." (Emphasis supplied.) See also Section 91.

   [*170] In this statement, Mr. Miller is supported by a long line of Maryland and English decisions.  The early case of Davenport v. Hanbury (1796), 3 Ves. 257, seems to be the leading English case involving the construction of the word "issue," without qualifying words, and the proper mode of distribution under a will where the term "issue" is so used. [***32] The Court carefully considered other cases where, because of other words in the wills, it was held that "issue" should take per stirpes, then stated, "[t]his case depends entirely upon the construction of these words, 'to Mary Davenport or her issue'"; and held that "issue," as there used, was a word of purchase, and when so used it had "always been considered as synonymous to and the same as 'descendants'; and whoever can make himself out a descendant of the person, to whose issue the bequest is made, had a right to be considered persona designata in that bequest," and that the distribution should be per capita (in this instance the descendants were one child and two grandchildren).  This case was followed in later English decisions, which it will be unnecessary to discuss.

   In McPherson v. Snowden, 19 Md. 197, the Court considered a trust made by deed which provided for the payment of income to four daughters of D, "and from and after the death of all of the aforesaid daughters * * *, then for the use and behoof of all of the issue of all of the daughters of * * * [D] and their heirs, in fee-simple." The parties agreed that the word "issue" as there used was[***33] the equivalent of children, and the question arose as to whether there should be a per stirpes or per capita distribution among the children of the daughters. The Court pointed out the well-recognized principle that in a deed, at common law, the word "issue" was a word of purchase, and said, "[i]f, therefore, the issue of the daughters take in their own right [because the word "issue" was a word of purchase as in the instant case], and not by representation, they take per capita.  See Davenport v. Hanbury, 3 Vesey, 260."

   In Allender v. Keplinger, 62 Md. 7, the same principle was applied.  There, however, the will directed that the property be "equally" divided among the "lawful issue" of testator's [*171] three children.  Distribution was made per capita among the children and grandchildren of the testator's children.

   In Levering v. Orrick, 97 Md. 139, a per capita division among descendants [**373]of two deceased persons was ordered by the will, with a direction that the descendants were to be considered as purchasers.  In holding that all of the children and grandchildren of the two deceased persons took equally, the Court[***34] said:

   "In bequests to descendants equally, or to all the descendants of any person, or to the descendants simply, the rule is all take per capita unless a contrary intention appears. n6 2 Redfield on Wills, 36 and and 74; 1 Roper on Legacies, 126.  The following are instances of the application of the rule.  '£ 4,000 to the descendants of Frances Ince.' Held, that great grandchildren were entitled to share with grandchildren. Crossley v. Clare, Ambler, 397.  'Legacy to the descendants of A and B equally.' Children and grandchildren take per capita. Butler v. Stratton, 3Brown's Ch. 367. 'Under the provisions of a will that the residue of an estate is to be equally divided between my brothers Edwin and Charles' children,' the distribution is to be made per capita. McIntire v. McIntire, 14 App. D. C. 339.

   "In the present case Mrs. Thomas being the last of the sisters, her share cannot pass to her surviving sisters, and can only pass to their descendants, in which case the rule of law is that the distribution must be per capita, unless a contrary intention appears; and here a per capita distribution is expressly ordered, * * *." (Emphasis partly[***35] supplied.) It will be noticed the principle by this time had become [*172] so firmly established, the Court refers to it as a rule of law.

n6 This seems to be practically the same as the quotation from Miller, op. cit., Sec. 96, which I set out above.  It seems to be fully supported by the authorities cited and the previous Maryland cases, and is repeated in subsequent Maryland decisions as late as 1956.  The principle is, of course, in direct conflict with Restatement, Property, Section 303 (1), adopted in the majority opinion.

    Requardt v. Safe Deposit and Trust Co., 143 Md. 431, was a case where the income was devised to testator's brothers and sisters with a provision that on the death of any of the brothers or sisters their respective shares in the income should be paid to their issue until the last of the brothers and sisters died, when "said trust shall cease and the corpus divided equally among their surviving children." The Court held that there was a clear direction to distribute the corpus[***36] per capita, though there was a per stirpes division of the income, reaffirmed McPherson v. Snowden, supra, and repeated the rule that we have just quoted from Levering v. Orrick, supra, and Miller, op. cit., Section 96. n7

n7 The membership of this Court at the time of this decision had completely changed since the decision in McPherson.  It was composed of C. J. Boyd and Judges Briscoe, Thomas, Pattison, Urner and Offutt.  I mention the membership merely to show the great number of judges of this Court who repeatedly stated the principle as the settled law of this State.

   Judik v. Travers, 184 Md. 215, is another case that forcefully states the Maryland rule that we now have under consideration.  There, a per stirpes distribution was directed.  In giving effect to the specific language used by the testator, the Court said:

   "The rule is that all take per capita, unless a contrary intention appears, in cases of bequests to descendants equally, or to all the descendants of any [***37]person, or to descendants simply.  Levering v. Orrick, 97 Md. 139, 145, 54 A. 620; Requardt v. Safe Deposit & Trust Co., 143 Md. 431, 435, 122 A. 526. See also In re Stone v. Baker, supra.  The testator in the instant case obviously wanted to make clear that his intention was contrary to the rule on this point and that is precisely the effect of the language used to do so." (Emphasis supplied.) n8

n8 At the time of this emphatic statement of the rule, the membership of the Court had again undergone a complete change.  The members were C. J. Marbury and Judges Delaplaine, Collins, Grason, Melvin, Bailey, Capper and Henderson.

   [*173] [**374] The same statement was repeated in Patchell v. Groom, 185 Md. 10, 14, 43 A. 2d 32; and in Singley, Patchell and Groom, Revisited, 15 Md. L. Rev. 1, we find the learned author stating:

   "It should be emphasized that these cases were not concerned with a gift to 'my descendants equally'; a gift to 'the descendants of A'; or a gift to 'my [***38]descendants', without a direction or an implication that a stipital distribution was intended.  In these examples, the rule is that all take per capita, in the absence of contrary intention."

   The latest expression upon the subject is found in Robinson v. Mercantile-Safe Deposit & Trust Co., 214 Md. 30, 34, (1956), 132 A. 2d 841, cited in the majority opinion. n9 There we quoted from Lycett v. Thomas, 153 Md. as follows: "'We do not understand that there is any dispute about the general rule, that where there is a gift to a class [a fact conceded in the instant case], members of the class take per capita [which is not permitted by the majority opinion herein], unless the contrary intention clearly appears [that no contrary intention appears is another concessum in the case].'" As a matter of fact the Court continued (153 Md. 446) that the rule "has been so generally accepted that the citation of authorities seems almost superfluous.  In Maryland, n10 certainly, the decisions have been uniform from at least as far back as Benson v. Wright, 4 Md. Ch. 278, down to Stahl v. Emery, 147 Md. 123."

n9 Here, again, the membership of the Court had undergone a substantial change.  It consisted of C. J. Brune and Judges Collins, Hammond, Prescott and Kintner, specially assigned.

[***39] 

n10 When this opinion and many of the others cited were written, the Massachusetts rule had been adopted there for many years.

   I am unable to reconcile these repeated statements of the rule of law in Maryland made and concurred in by so many of the judges, past and present, of this Court with the majority ruling in the present case.  The majority, however, [*174] base their conclusion upon the fact that (quoting from their opinion) "it would seem that approval of the Restatement rule [Section 303 (1)] has been indicated by this Court, at least implicitly, three times * * *." (Italics added.) This is the first appellate decision that has come to my attention that is based upon "implicit indications," when there were previous decisions explicitly to the contrary.

   The majority opinion refers to the Mazziotte [180 Md. 48] Patchell, supra, and Ballenger [205 Md. 94] cases.  It concedes that a statement made by Judge Bond in Mazziotte [which was clearly a reference to the word "issue" when used as a word of limitation, which is plainly shown by reference to the authorities [***40]cited by him immediately following the statement] "was not necessary to the decision," and that "the statement in the concurring opinion in Patchell n11 * * * that the view of the Restatement [Section 303 (1)] had been adopted as Maryland law in Mazziotte may have read more into Judge Bond's language than this Court intended," but holds there was an implicit indication of approval of the Restatement [Section 303 (1)] in the three cases.  Instead of reading "more into Judge Bond's language than this Court intended," the statement quoted in footnote 11 simply cannot be justified.  There was no question of Section 303 (1) of Restatement involved in Mazziotte.

n11 This statement is [185 Md. 29]: "The rule of Restatement [Section 303 (1)], was, however, adopted by this Court in Mazziotte v. Safe Deposit & Trust Co., supra."

   In that case a testator had devised equitable life estates in realty to four daughters, [**375] with the provision that upon the death of all the daughters, "then the trust[***41] hereby created shall cease and * * * the trust property shall be paid * * * to the issue of my said four daughters living at the termination of the trust per capita." At the termination of the trust, the daughters left surviving them children and grandchildren, and the question arose as to the proper distribution of the trust fund.  The Court stated that the word "issue," as used in the will, was clearly one of purchase; that "standing alone, the meaning of it has been a subject of difference of opinion"; but the word did not stand alone, the "takers are to be the issue per [*175] capita, and the qualification seems to dispose of the question of interpretation." The Court continued by pointing out that where the distribution is to be "among issue per capita remoter descendants will share with their parents." In doing so, it referred to several out-of-state authorities and one of them was a part of comment (i) of Restatement, Property, Section 303, viz., "when the issue take per capita and not per stirpes, a remoter descendant of B can share even though his parent is alive and shares." This Comment (i) of Restatement is entirely consistent with the Maryland rule that has[***42] been repeated so many times.  The Court then held, as we should have here, that the grandchildren and great-grandchildren should share equally in the distribution.  The case was another illustration of what was said in Judik v. Travers, supra, only this time the testator "wanted to make clear that his intention was [not] contrary to the [Maryland] rule on this point."

   It should be noted that nowhere in the opinion in Mazziotte is any reference made to Restatement, Property, Section 303, except the small portion of Comment (i) previously quoted, and we do not find the Restatement cited in support of the position of any of the parties in any of the briefs filed.  Moreover, the case was not a proper one for the invocation of said Section 303 (1), as there was present in the will involved "a contrary intent of the conveyor * * * found from additional language or circumstances," the absence of which is an explicit prerequisite to bringing Section 303 (1) into play.  In fact, there was a specific holding in the case that the testator in ordering a distribution per capita had manifested an intention that his property be divided as the Court ordered, which, of course, [***43] was not in accordance with the Maryland law of intestate succession, but was in complete accord with the previous Maryland decisions.

   There is no need to discuss in any detail the Ballenger and Robinson cases cited.  In neither of these cases was any question of Section 303 (1) of Restatement involved.  In each, there was a specific direction that the property be distributed per stirpes and not per capita, which, of course, made the section inapplicable.

   [*176] In concluding, I wish to make it clear that I have not attempted to present the relative merits of the Massachusetts rule as adopted by Restatement in Section 303 (1), and the Maryland rule.  There has been a trend toward the Massachusetts rule, and it may well be that it is the better one.  If it be desirable for Maryland to reverse its time-honored and oft-repeated rule, I simply, but emphatically, suggest that it should be done by the Legislature and not by the Courts.  In this manner, there would be an orderly and prospective integration of the new rule.  As it is now, we do not know how many more wills there are in existence that will be affected by this complete change, nor how many beneficiaries[***44] there are who would have inherited except for the majority decision herein.

   On the Maryland authorities, cited above, I think the distribution should be in thirds -- one each to the sons of the deceased life tenant and the other to his grandchild. 

PARKER v. PARKER 
No. 176, September Term, 1959
 
Court of Appeals of Maryland
 
222 Md. 69; 158 A.2d 607; 1960 Md. LEXIS 311

 March  16, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Duckett, J.

DISPOSITION: Decree reversed and case remanded for the entry of a decree in accordance with the opinion herein; the costs to be paid by the appellant.

CORE TERMS:  custody, paramour, adultery, decree, lived, divorce, church, proper person, divorced, infants, voluntary separation, husband and wife, teacher, pastor, joined, loved, awarding custody, usual rule, adulterous, night, uncle, care and custody, higher standard, church member, eight-year-old, complicated, reputation, misconduct, evidently, nervous

COUNSEL: Theodore G. Bloom, with whom was Albert J. Goodman[***4] , on the brief, for appellant.

   No brief and no appearance for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*71] [**608] This case concerns the custody of the eight-year-old son of divorced parents.  The wife obtained a divorce on the ground of three years' voluntary separation, and custody of the child was awarded to her, with rights of visitation to the father.  The father appeals; there is no brief or appearance on behalf of the mother.

   The evidence shows that the mother, Mrs. Parker, had lived in open adultery with the paramour, a Mr. Carmean, for a period of about a year and a half, but it is not shown that any intimate relations existed prior to the separation of the parties to this suit. n1 The paramour was a married man, separated [*72] from his wife.  In September, 1957, the appellee mother took the child here involved, Levin R. Parker, III (the only living child of the parties), to Florida with her.  There she and Carmean lived together for three months in a tourist motel as husband and wife. Included in the group at the motel was Carmean's son, who is about[***5] four years older than Levin.  In December, 1957, the appellee and Carmean returned to Maryland, and until February, 1959, they continued to live together at various places as husband and wife. At that time the appellee moved into her mother's apartment with the child, but without Carmean, and claims to have ceased cohabitation with him from that time up to the time of the trial.  She testified she was in love with him and that she intended to marry him when she obtained a divorce. The paramour and his wife had been divorced about two years prior to the trial of this case.

n1 Since the ground of divorce was voluntary separation, recrimination was not available as a defense.  Matysek v. Matysek, 212 Md. 44, 128 A. 2d 627; Hughes v. Hughes, 213 Md. 452, 132 A. 2d 119, and (same case) 216 Md. 374, 140 A. 2d 649.

   It appears that the mother took generally good care of the child physically. She and Carmean joined a church in Anne Arundel County after returning to Maryland and about a year before the trial. [***6] The pastor of the church testified that he considered the mother a fit person to have the care and custody of the child and that he did so without any reservations.  The mother claimed to be sorry for her misconduct, admitted that she had been wrong and declared her desire to have the child and to bring him up properly.  She also said that she expected to go back to work.  She offered no testimony as to plans for the care of the child while she might be away at work and he would be out of school.

   The child has moved about as the mother has moved about, and her moves seem to have contributed to his rather frequent changes of school.  His school attendance has been somewhat irregular and his school progress unsatisfactory. That appears to have been due in large measure to his emotional instability, and he is described as nervous and upset.  Both the principal of his school and his teacher have been concerned about the boy.  His teacher wrote this as a summary following a conference with the boy's mother: "I have my doubts about too much effort by Mrs. Parker to help Levin.  Her personal life is too complicated, and she is really more interested in her [*73] life than the well[***7] being of her child.  She and Mr. Parker are separated.  Child spends some time with both parents.  I believe this is the biggest factor in child's problem."

   There was also evidence that the child had said that while he was in the custody of the mother he frequently went to bed late at night, including school nights. His uncle, a brother of his father, testified to an incident of this sort at the movies in February, 1959.  On this occasion, the mother and Carmean had taken both Carmean's son and young Levin to the movies on a school night. Levin went over to [**609] his uncle, got in his lap and went to sleep.  The uncle left the movie at about 11:15; the boy was still there.

   The father, aged 31, has been an employee of the Post Office Department for over ten years.  The Chancellor commented that the testimony "tends to prove that the husband's conduct and reputation have been good which cannot be said about the wife." The father, too, is a church member and he has taken the boy to Sunday school each Sunday when the boy has been with him.  The father lives with his parents, who would be quite willing to have the boy live with them, too. The testimony indicates, and the Chancellor[***8] found, that the boy would perhaps have a higher standard of living if custody were awarded to the father.

   The boy himself was questioned as to his feelings towards his parents and his preference.  In substance he testified that he loved each of his parents and that he would prefer to live with his mother.  He also said that he loved his father's parents and that he liked Mr. Carmean.

   There was testimony, not contradicted, by the father's brother that the boy had told him he did not get along well with Carmean's son -- that he did not like him and that they fought.  There was also testimony, likewise not contradicted, by the father, his brother and his mother to the effect that the boy was always very much upset when a visit to his father would come to an end and the time would come for him to be returned to his mother.

   The Chancellor stated that he had observed the demeanor and carefully considered the testimony of all the witnesses, that he did not believe the then Mrs. Parker to be grossly [*74] immoral, but that she was sincerely repentant and would be a loving and devoted mother, and that the child (not then eight years old) needed "this devoted care." He added that if[***9] it should prove that the court was mistaken as to the mother's future conduct, the decree as to the child might be annulled, varied or modified at any time.  After stating that materially the child might be better off with the father and observing that "experience has proven that many of our outstanding men lived a lean boyhood," he concluded his opinion with this sentence: "In my opinion, the stability and welfare of this child requires me not to change the guardianship and custody from the mother."

   The problems presented by this case have been so fully considered in the case of Hild v. Hild, 221 Md. 349, 157 A. 2d 442, which was decided by this Court a few months after the Chancellor's decision in the present case, that any extended discussion of the applicable law would be merely repetitious.  As we there reiterated, the welfare of the child is the primary consideration by which a court must be guided in a custody case.  That case and this are strikingly similar in many of their facts -- among them the approximate age of the boy, his expressed preference for living with his mother, the fact that, with the child as a member of the household, the mother had lived in open adultery, [***10] the good reputation of the father, the availability of his parents and of their home for the bringing up, or help in the bringing up, of the child. n2 There are also some differences.  The mother here was frank and open in admitting the error of her ways, which was not so in the Hild case.  On the other hand, the mother's influence on the child's schooling here seems to have been clearly to the disadvantage [*75] of the child and to have been prompted by her [**610]readiness to put her own interests and desires ahead of the child's welfare.  Likewise, there is no question here, as there was in Hild, of separating the child from a sibling.  Quite to the contrary, what evidence there is on the subject suggests that this boy would be better off living elsewhere than with his step-father's son.  It should perhaps be added that here the husband did not obtain a divorce on the ground of adultery, as in Hild; but here the adultery was freely admitted by the wife's testimony and was corroborated by that of a private investigator employed by the husband.  The Chancellor evidently accepted it as proven.  We do not regard this difference between the Hild case and the[***11] present case as significant.  Cf. Oliver v. Oliver, 217 Md. 222, 140 A. 2d 908.

n2 One other point of resemblance, which was not a fact upon which the majority rested its decision in the Hild case, is the marriage of the mother and her former paramour. In the instant case, that had not occurred at the time of the signing of the decree. We were informed at the argument (in response to a question from the bench) that such a marriage had taken place in the instant case after that portion of the decree which awarded a divorce had become final. Even if this fact were properly before us, it would be of no controlling effect here.

   As is stated in the Hild case, there is no absolute and inflexible rule as to the award of custody of a child of divorced parents.  Ordinarily, custody of a young and immature child is awarded to the mother, even though the father is without fault, if she is a fit and proper person to have custody of the child. This rule will give way if it is demonstrated that the mother is[***12] not such a person.  Usually, the fact that the mother has been guilty of adultery will be taken as indicating that she is not a proper person to have custody, and a strong showing must be made to overcome the usual rule or presumption against awarding custody to an adulterous mother.  All of these rules are, we think, recognized in the Hild case.  So, too, are the rules which ordinarily favor keeping children together and which give consideration to the child's preference when he is of sufficient maturity and discretion to express a rational preference.  The first of these rules has no application on the facts of this case; and because of the youth and immaturity of the child here, this case, like the Hild case, falls under the exception to the second of these rules.  To avoid repetition, in stating the above rules, we have not cited here many authorities which are cited in the majority opinion in the Hild case, and we simply refer to that opinion for them.

   We are well aware of the difficulties which beset appellate review in custody cases, and we bear in mind what amounts to a presumption in favor of the correctness of the findings of [*76] the Chancellor on questions[***13] of fact and the importance of his opportunity to see and hear the witnesses, both of which are recognized by Rule 886 of the Maryland Rules.  There is little, if any dispute as to past events which seems relevant to the question of custody. The Chancellor was evidently much impressed by the mother's confession of error and avowal of repentance.  In Miller v. Miller, 191 Md. 396, 62 A. 2d 293, and McCabe v. McCabe, 218 Md. 378, 146 A. 2d 768, this Court has expressed a reluctance to gamble with an infant's future and has emphasized the past conduct of an adult as a guide in judging his or her future conduct.  The weight to be given such declarations as those just referred to, which were made by the mother in the course of the trial is, we think, open to a good deal of question. Even when there is added the favorable opinion of the pastor of the church which she had recently joined, we think that the mother has failed to make the strong showing called for under the rule of the Hild case.  We regard that case as controlling here.  Accordingly, the decree will be reversed and the case will be remanded for the entry of a decree awarding the custody of the child to the father, [***14] with reasonable rights of visitation to the mother.

   Decree reversed and case remanded for the entry of a decree in accordance with the opinion herein; the costs to be paid by the appellant. 

MONUMENTAL ENGINEERING, INC., Petitioner v. SIMON et ux.,Respondents 
No. 1 (Misc.), September Term, 1959
 
Court of Appeals of Maryland
 
221 Md. 548; 158 A.2d 471; 1960 Md. LEXIS 447

 March  10, 1960, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing and for Modification of Order Filed April 11, 1960, Denied April 13, 1960.

PRIOR HISTORY:  
Petition from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Motion to dismiss appeal granted, the appellants-defendants to pay the costs.

CORE TERMS:  decree, motion to vacate, special order, reconsideration, suspending, enrolled, suspend, Maryland Rule, decree appealed, toll, appellants-defendants, transmission, thirty-day

COUNSEL: Malcolm B. Smith for the petitioner.

   Fred I. Simon, pro se, for the respondents.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.

OPINIONBY: PER CURIAM

OPINION: [*549] [**471] The docket entries show that the order for appeal from the decree filed September 25, 1959, was not entered until November 30, 1959, or one month and five days after the decree became enrolled on October 25, 1959.  The docket entries further show that the motion of the appellants-defendants filed October 19, 1959, to vacate the decree and for a reconsideration thereof was heard and overruled on November 6, 1959.  But no order to suspend the operation and effect of the decree was sought and none was passed; nor is there anything in any of the proceedings, copies of which were filed in this Court, to indicate or even suggest that the chancellor had any intention[***3] of suspending the operation of the decree pending final disposition of the motion to vacate the decree.
 
   Since the motion to vacate the decree, in the absence of a special order to that effect, could not and did not suspend the operation of the decree appealed from -- and because the order for appeal was not filed within thirty days as Maryland Rule 812 a specifically requires -- the motion of the appellee-plaintiff to dismiss the appeal before the transmission of the record to this Court is granted.

   In equity cases a petition for a rehearing or a motion to [*550] vacate or set aside a decree does not toll the running of the thirty-day period fixed by Rule 812 a, supra, [**472] within which the order for appeal must be filed, unless a special order has been passed suspending the operation of the decree before it becomes enrolled. Jacobs v. Bealmear, 41 Md. 484 (1875). See also, among others, Meyer v. Steuart, 48 Md. 423 (1878); Stephen v. Lewis, 62 Md. 229 (1884); Riviere v. Quinlan, 210 Md. 76, 122 A. 2d 332 (1956), in which the rule was applied.  Cf. Bennett v. Bennett, 5 Gill 463 (1847) [rule not applied because court had by order nisi[***4] set decree aside]; Hancock v. Stull, 199 Md. 434, 86 A. 2d 734 (1952) and Hanley v. Stulman, 216 Md. 461, 141 A. 2d 167 (1958) [rule stated but not applied because it appeared lower courts had intended to suspend operation of decrees].  Also compare Briley v. Pinkston, 215 Md. 417, 136 A. 2d 563 (1957) [earlier decree, having been treated as mistakenly entered, was reopened and reconsidered].

   Motion to dismiss appeal granted, the appellants-defendants to pay the costs. 

BALTIMORE FEDERAL SAVINGS AND LOAN ASSOCIATION v. EARECKSON 
No. 152, September Term, 1959
 
Court of Appeals of Maryland
 
221 Md. 527; 158 A.2d 121; 1960 Md. LEXIS 444

 February  23, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment reversed, with costs, and case remanded for the statement of an account not inconsistent with the views herein expressed.

CORE TERMS:  second mortgage, mortgage, first mortgage, mortgagee, purchaser, free and clear, mortgagor, judgment creditor, encumbrance, auditor, ratification, decree of sale, foreclosure, ratified, assent, bid, file a claim, advertisement, insisting, prevail, foreclosure sale, equity of redemption, proceeds of sale, property subject, mutual mistake, prior mortgage, net sale, distributing, discharged, conveyed

COUNSEL: Symone S. Spector, with whom were Julius A. Victor, Jr., and Samuel Schenker on the brief, for appellant.

   J. Jelet Christopher for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*528] [**122] [***3] This appeal is from an order overruling exceptions to and ratifying an auditor's account in a foreclosure case.  It appears that the property, 701 Hamlen Road, Glen Burnie, was purchased by Keither H. Moore and Lottie Nester, formerly Lottie Moore, in 1954.  They executed a first mortgage to First Federal Savings and Loan Association of Brooklyn, Maryland, and on the same date executed a second, purchase money, mortgage to Monumental Homes Corporation.  The second mortgage was duly assigned to the appellee, Eareckson.  Thereafter the Moores obtained an unsecured loan from Baltimore Federal Savings and Loan Association, which was reduced to judgment for $794.90 [**123] in Baltimore City in 1957, and duly recorded in Anne Arundel County.

    In 1958, the second mortgage being in default, Eareckson instituted foreclosure proceedings and filed his statement of mortgage claim in the amount of $2,971.99.  A trustee was appointed by the court, who sold the property at public auction for a gross price of $9,030.00, Eareckson being the purchaser. The trustee reported the sale and after due publication and order nisi, it was finally ratified and confirmed.  Thereafter, Baltimore Federal, [***4] the judgment creditor, filed a [*529] petition for the allowance of its claim of $794.90, plus interest, out of the proceeds, after payment of the claim filed by the second mortgagee, which by order the court allowed.  But when the matter was referred to the court auditor, the trustee submitted a "settlement sheet" showing that $6,711.15 was due on the first mortgage held by First Federal. Thereupon, the auditor stated an account distributing the net sale price, as reduced by costs and other items, first to the payment of the first mortgage, and the balance of $1,878.45 on account of the second mortgage claim, the unpaid balance of the claim being "subject to decree in personam".  This left nothing for the judgment creditor. Baltimore Federal excepted, on the ground that the account should have disregarded the first mortgage and applied the net sale price first to the payment of the claim of the second mortgagee, then to the payment of its judgment, with balance of some $4,700.00 to the mortgagors, leaving the property in the hands of the purchaser subject to the first mortgage. After hearing, the court overruled the exceptions and the judgment creditor appealed.  The mortgagors[***5] did not appeal.

   The decree of court for the sale of the mortgaged premises was passed under Code (1957), Art. 66, sec. 6 et seq., pursuant to an assent contained in the second mortgage. It is conceded that under Code (1957), sec. 9, the holder of the second mortgage might properly bid on the property, as he did.  It is also conceded that under sec. 10 of that Article any person claiming an interest in the equity of redemption has standing to file claim against the surplus of the proceeds of sale after payment of the mortgage claim.  But the appellee contends that it was proper for the auditor to pay off the first mortgage in priority to the claim under the second mortgage. We think the contention is without merit.

   It should be noted that the first mortgagee never became a party to the proceedings, and the statement in Tobin v. Rogers, 121 Md. 249, 252, is apposite: "The first mortgagee not having been made a party, any sale under the second mortgage must necessarily have been subject to the operation of the first mortgage, unless the first mortgagee assented to a sale free and clear of his mortgage or voluntarily released his [*530] mortgage, or intervened in this proceeding, [***6] subjecting himself and his mortgage to the jurisdiction of the Court.  This it was perfectly competent for him to do, Tome v. King, 64 Md. 166, but he did not do it.  All that he did, or that was done in his name, was to file a claim for the amount of his mortgage and certain interest thereon, and without asking to become or being made a party to the proceeding, so as to be bound thereby." See also Sansbury v. Belt, 53 Md. 324, Garner v. Union Trust Co., 185 Md. 386, 392, and Plaza Corp. v. Alban Tractor Co., 219 Md. 570, 576. In Hardy v. Smith, 41 Md. 1, it was held that the trustee, who was also the first mortgagee, had no authority to sell under the foreclosure of a second mortgage, except subject to the first mortgage, even though he had announced at the sale, but not in the advertisement, that the property would be sold free and clear of all encumbrances. Hence, it was held that the first mortgagee had no right to participate in the proceeds of sale, at the expense of a claimant under a third mortgage. See also Hughes v. Riggs, 84 Md. 502, 505. The [**124] authorities elsewhere are generally in accord with the Maryland cases.  See 3 Jones, Mortgages[***7] (8th ed.), §§ 2161, 2186; 1 Glenn, Mortgages, §§ 85, 109 (1943); 3 Wiltsie, Mortgage Foreclosure (5th ed.), § 1027.

   In the instant case not only was the first mortgagee not made a party, but it did not even file a claim. Indeed, it was not shown that the first mortgage was in default.  The statement of mortgage claim, filed and sworn to by Eareckson, included an item of $498.48 for monies advanced by him in payments on the first mortgage, presumably to prevent its foreclosure. It was the trustee's duty to sell the equity of redemption under an assent contained in the second mortgage. Some of the cases and texts cited state that there is a presumption of law that a purchaser at such a sale only pays for the property's worth in excess of the prior mortgage debt.

   The appellee contends that the decree of sale passed by the court directed him to sell free and clear of all encumbrances, since it directed him, upon ratification of the sale, to convey to the purchaser the property sold "free, clear and discharged from all claim of the parties hereto, petitioner and mortgagor [*531] and those claiming by, from or under them, or either of them." Obviously, this language does[***8] not purport to bind persons not parties, nor can it be said that the first mortgagee claims "under" the mortgagors as the appellee argues.  A purchaser buys only the interest of the mortgagor, or the parties to the cause.  Heuisler v. Nickum, 38 Md. 270, 278. When the mortgagors executed the second mortgage, it was expressly made subject to the operation of the first mortgage, under which they had conveyed away their legal title.  The cases make it clear that, without the consent of the first mortgagee, or unless he is made a party, the court lacks jurisdiction to derogate from the prior grant.  Even if the language were construed as the appellee urges, and we do not so construe it, the contention could not prevail.

   The appellee seems to make a further contention, based on the equities of the situation, that he was misled into bidding for the property free and clear of all encumbrances. We find nothing misleading in the language of the decree of sale above quoted, or in the language of the advertisement which recited that the property was "subject to the legal operation and effect of a mortgage * * * recorded * * * prior hereto" to First Federal, quoting language used in the [***9]second mortgage filed in the proceedings.  Eareckson knew, or was charged with notice, of this prior mortgage. He did not testify at the hearing below.  There is no evidence in the record to show that he bid more than the value of the property subject to this mortgage, or that there was any announcement at the sale that the property was being sold free and clear of all encumbrances. The only testimony bearing on the point is a statement by the trustee that "it was our construction that the property was sold free and clear." If we can infer from this that the purchaser and trustee made a mutual mistake of law, and that this might under some circumstances afford ground for relief, it is too late to make the point now, under the facts of this case. There were no exceptions to the ratification of the sale, and it was finally ratified without objection.  In all the Maryland cases where relief was afforded to a purchaser there was a timely objection to the sale itself.  See Webster v. Williams, 143 Md. 162, 167 (exceptions to ratification); [*532] Brick Co. v. Robinson, 55 Md. 410, 416 (injunction to restrain sale); Heuisler v. Nickum, supra (exceptions to ratification). [***10] See also note, 73 A.L.R. 612, 620. Cf. Goodenow v. Ewer, 16 Cal. 461. In the present posture of the case, we are dealing only with rival claims asserted against the surplus, the judgment creditor insisting that its claim be satisfied, the foreclosing second [**125]mortgagee insisting that he be allowed to apply the proceeds first to the liquidation of the prior encumbrance. Cf. Goldenberg v. Title Guarantee Co., 212 Md. 448, 452. We need only decide as to the relative rights of these parties, and under the cases cited we think the judgment creditor must prevail.

   Judgment reversed, with costs, and case remanded for the statement of an account not inconsistent with the views herein expressed. 

ROSE et ux. v. PAAPE et ux. 
No. 70, September Term, 1959
 
Court of Appeals of Maryland
 
221 Md. 369; 157 A.2d 618; 1960 Md. LEXIS 426

 February  2, 1960, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court of  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed in part and in part remanded for modification of the decree and further proceedings not inconsistent with the opinion herein, the appellees to pay the costs of their brief; the appellants to pay the other costs of this appeal.

CORE TERMS:  zoning, harbor, rezoning, zoned, decree, pier, classification, invalid, ordinance, modification, clerk, conditional, water, regulations, attach, minutes, strip, feet, reply brief, immediately prior, public interest, strip of land, residential, below-described, constructed, declaration, counsellor, undertook, effective, declare

COUNSEL: Richard W. Case, with whom were Thomas J. Curley, Roger D. Redden, and Smith, Somerville & Case on the brief, for appellants.

   Ridgely P. Melvin, Jr., with whom[***3] were McWilliams & Melvin on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*370] [**619] This is an appeal by the respondents, Joseph E. Rose and wife, from two portions of a decree of the Circuit Court for Anne Arundel County entered in a suit brought by Ronald C. Paape and wife, against the Roses and the Board of County Commissioners of Anne Arundel County (the Board) first, for a declaration that a rezoning ordinance of the Board dated April 15, 1958, was void, second for an injunction [*371] against the Roses and the Board prohibiting them from using or permitting the use of properties of the Roses for purposes other than those permitted under zoning regulations in force immediately prior to the resolution of April 15, 1958, and third, declaring the complainants, the Paapes, entitled to the use of a strip of land owned by the Roses for access to a body of water known as Rose Haven Harbor. The decree was in favor of the Paapes on all three matters.  The Roses appeal from the decree insofar as (a) it held the rezoning ordinance void and (b) it enjoined[***4] the Roses and the Board from putting the attempted rezoning into effect and using property of the Roses covered by the resolution for any purpose not permitted under the "Cottage Residential" classification of the County zoning regulations. They do not appeal from the decree as to the Paapes' right of access to the harbor, which was based upon contract, not zoning. The Board did not appeal from any part of the decree.

   The Roses are the owners of a marina and the owners and developers of a waterfront tract known as Rose Haven on the Bay in Anne Arundel County, which they purchased in 1946 and have developed since then.  The Paapes are the owners of a lot at Rose Haven which they purchased from the Roses in 1953 and upon which they have built a residence.  The focal point of Rose Haven, or at least of this suit, is now known as Rose Haven Harbor, formerly Red Lion Pond.  It is connected with Herring Bay, an arm of the Chesapeake Bay, and is subject to the ebb and flow of the tide and hence constitutes navigable water. The land at the northeast side of Rose Haven Harbor is, and since its original zoning in 1950 has been, zoned as "heavy commercial", and here the Roses have constructed [***5]a yacht club, a modern gasoline service station, a large motel and a swimming pool.  The Roses have constructed piers off the yacht club end of the harbor, at which about 275 craft are regularly berthed in the summer, and at which visiting craft also tie up.  The Roses have dredged out the harbor and the channel leading to Herring Bay, and have deepened the harbor from little more than a mud pond having a depth of about ten inches of water at high tide to a harbor with a depth of eight to twelve feet.

   [*372] All of the land immediately surrounding the harbor belongs to the Roses.  For the most part they have retained only a narrow strip bounding on the water. The harbor is perhaps 1600 to 1700 feet in length from north to south and roughly 300 to 400 feet in width.  The Paapes' lot lies to the east of the harbor and their access to it is across the narrow strip of land retained by the Roses.

   In 1950 the land around approximately the southern half of the east side, the south side and the western side of the harbor, including the Roses' retained strip and the area in which the plaintiffs' lot is located, was zoned as "Cottage Residential." This zoning and that of the northeastern[***6] side of the harbor were continued when a comprehensive zoning plan for a large area was adopted in 1952.

   As the Roses' marina has developed and prospered, they wished to build, and in 1958 started to build, a pier into the southern end of the harbor a few feet offshore from the strip over which the Paapes had access to the harbor. The Paapes (who seem earlier to have entertained somewhat different [**620] ideas as to the desirability of a pier off their lot) then protested to the zoning or building authorities, and the latter notified the Roses that the land off which they were building their pier had a residential classification which would not permit the construction and proposed use of their pier. The Roses claimed that they were surprised to be so advised, but thereupon filed an application for the rezoning of their land around the south end of the harbor.

   The County Planning and Zoning Commission held a hearing on the application on the morning of April 10, 1958, and on that day recommended its approval.  On the evening of the same day the Board of County Commissioners held a hearing on the application, at which the Paapes were the principal opponents.  The minutes of[***7] that meeting of the Board read in part as follows:

   "After quite a lengthy discussion between the petitioner and the opposition and their attorneys it was mutually agreed by all that if the rezoning was approved it was to contain a restriction for a buffer [*373] zone between the pier and the properties sold facing the harbor, and a restriction that nothing but piers will be constructed on the property.

   "The Board advised they will give a decision later."
 
That appears to conclude the extract from the minutes of April 10, and the following appears to be from the minutes of the Board's meeting of April 15, 1958:

   "The following rezoning resolutions were adopted:

   1. JOSEPH E. ROSE, Cottage Type Residential to Light Commercial -- Case #26-58 District 8 -- Approval on motion of Commissioner Crosby, seconded by Commissioner Everd, subject to approval of opposition counsellor."

   This resolution (except for the condition as to "approval of opposition counsellor") was restated or expanded as a more formal rezoning resolution of the same date, a copy of which duly signed and attested by the President and Clerk of the Board (apparently in form for recordation in the office[***8] of the Clerk of the Circuit Court), was put in evidence as a separate document. This is the resolution here under attack.  It is usually referred to below as "the resolution", but where it seems necessary or desirable to distinguish between the two resolutions, or the two forms of the same resolution, that appearing in the minutes is referred to as the "informal resolution" and the more elaborate, separate document is referred to as the "formal resolution". The pertinent provisions of the formal resolution are as quoted or summarized below:

   "WHEREAS, the Board of County Commissioners is of the opinion that an error was made in the zoning of the below-described property upon adoption of the Comprehensive Zoning Ordinance on July 1, 1952 and that said property should have been properly zoned to permit its use as a harbor facility for storage of small watercraft; and

   WHEREAS, the Board is cognizant of the fact that the petitioner has publicly stated that no structures of any kind other than piers and mooring facilities [*374]will be erected on the below-described property; and

   WHEREAS, in view of the above, and for reasons of public safety, health and welfare, in order to[***9] maintain desirable open space, the Board hereby does declare that it will not approve application for building permit on the below-described property for any construction other than the above,

   NOW, THEREFORE, BE IT RESOLVED this 15th day of April, 1958 * * * that * * * the Board hereby approves the change in zoning from a Cottage-Type Residential to a Light Commercial District for the property described below: * * *"
  
Here [**621] follows a description of the property rezoned.  This covers the entire harbor and not merely the strip of land around its southern end which was all that the rezoning application expressly covered.

   The approval of "opposition counsellor" was never given, though it was invited when a copy of the formal resolution was sent to him.  The resolution was never recorded or submitted for record in the office of the Clerk of the Circuit Court.  The record indicates that the harbor itself -- the water area and the land under it -- had not been zoned as "Cottage Residential" or, indeed, that it had been specifically zoned at all prior to April 15, 1958; but this appears not to have been realized by the Board or the parties at the time when the 1958 rezoning[***10] was under consideration.  The zoning, if any, which it had previously acquired was "Agricultural" since that classification was assigned to any zoned area not specifically zoned otherwise.  This situation also appears to have been overlooked at the time when the decree of the Circuit Court was signed.

   One somewhat confusing question is the status of the resolution here under attack.  Under Secs. 2-27 and 2-28 of the 1957 Code of Anne Arundel County (both derived from Ch. 790 of the Acts of 1947), it is provided (by Sec. 2-27) that "[a] copy of all acts, ordinances and resolutions adopted or passed by the county commissioners, certified * * * and attested [*375] * * *, shall be filed with the clerk of the [Circuit] court * * *" and (by Sec. 2-28) that "[n]o act, ordinance or resolution shall become effective until a copy thereof shall have been filed with the Clerk of the court * * *."

   The fact that this resolution was not filed for record is shown by the Board's answer and by stipulation of counsel for the other parties.  Why it was not filed is not clear.  It may well have been withheld first because of its submission to counsel for the Paapes for his approval, and when[***11] such approval was refused, because of the prospect, and soon thereafter the reality, of litigation.  There has been apparently no rescission of the resolution and no move towards its rescission, and Sec. 2-28 imposes no time limit for filing.  We do not think that the resolution can be regarded as a nullity, even though it has not become effective. But for this litigation, the resolution could and probably would have been filed; and likewise, but for this suit, it would seem that the Roses could seek, by mandamus proceedings, to require its filing.  We accordingly think that it had and has at least sufficient vitality to withstand a claim that either the suit was prematurely brought or that this appeal is premature or moot.

   Though the condition with regard to approval by opposition counsel expressed in the informal resolution was not incorporated in the formal resolution, the Board undertook to comply with it by submitting the latter resolution to counsel for the Paapes for approval.  The conditions discussed at the April 10th meeting of the Board, relating to a buffer zone and to the construction of piers only, was sought to be incorporated in the formal resolution by the declaration [***12]that the Board would not approve a building permit on the property (including the harbor) for construction of any structures other than piers and mooring facilities.  (How effective such a declaration might be is a question which we find it unnecessary to pass upon at this time.) The two resolutions or the two different forms of the same resolution, adopted by the Board on April 15, 1958, together constitute, we think, only a single exercise, or attempted exercise, of zoning power.

   Zoning powers in Anne Arundel County are derived partly from Ch. 388 of the Acts of 1947, as amended, and partly [*376] from §§ 10-37 of Article 66 B of the Code of Public General Laws (1957 Ed.).  In neither of them, nor in the Anne Arundel County Zoning Ordinance (Anne Arundel County Code, 1957 Ed., Ch. 35) do we find any power vested in the Board to attach special conditions to resolutions rezoning properties [**622] from one classification to another, or establishing original zoning, which are not applicable generally to all properties in the given classification in which the property in question may be placed.  Neither do we find (if, indeed, such a power could properly be conferred) any power[***13] to make the rezoning of any property conditional upon the approval of any person.

   Taking the two resolutions, or the two forms of one resolution, of April 15, 1958, together, the Board undertook to make the rezoning of the appellants' strip along the east, south and west sides of Rose Haven Harbor conditional upon (a) the approval of counsel for the objectors and (b) a limitation of the uses which would otherwise be permissible under a Light Commercial classification. The latter condition was also sought to be made applicable to the harbor itself, whether that was sought to be done as a matter of original zoning or as a matter of rezoning.

   In Wakefield v. Kraft, 202 Md. 136, 149-150, 96 A. 2d 27, this Court said: "If the decision of the County Commissioners was that the area called for the status of Commercial A, any of the nineteen uses permitted under that classification had a rank and force equal to any other.  The County Commissioners are not a Planning Board, nor have they a right to exact conditions, or promises of a particular use in return for deciding that the public interest justifies that an area should be zoned commercial.  * * * This is not to decide, and we do[***14] not, whether an administrative official or board may, as a prerequisite to the granting of a variance, attach reasonable conditions.  Many courts have held that, within limits, this can be done." This statement was quoted with approval in Baylis v. City of Baltimore, 219 Md. 164, 169, 148 A. 2d 429. The rule stated was applied in holding invalid an ordinance enacted by the City of Baltimore reclassifying certain property from residential to commercial use which made the reclassification [*377] conditional upon the execution and recording of an agreement, set out in the ordinance, between the owners of the property and the City.  This agreement imposed restrictions upon the use of the property, which was to be used only as a funeral home and only subject to specified conditions as to entrances, exits, parking facilities and the forming of funeral processions.  In case of violation of the agreement, the ordinance was to be "abrogated and repealed" and the property was to revert to a residential use classification.

   The Baylis case discusses the whole problem fully and brings out the different considerations applicable to conditions which may be attached by a zoning board[***15] to a special exception or a variance and those applicable to a rezoning involving rezoning by amendment of a zoning map adopted pursuant to a comprehensive plan.  It would serve no useful purpose to repeat here what was well said there or to review the numerous authorities there cited. It may be interesting to compare the language of an earlier day (before zoning had come into existence) with regard to limitations upon the power of a municipal legislative body to make the effectiveness of an ordinance conditional upon the approval of some other person or persons which may be found in Baltimore v. Clunet, 23 Md. 449, at 468.

   In a doubtless well-intentioned effort to compose differences between the owners of Rose Haven and the Paapes and perhaps some other purchasers of lots there, the County Commissioners have sought to impose the conditions above stated.  It may be conceded that both conditions, or attempted conditions, are invalid; but the mere effort to attach them as conditions to deciding that the public interest calls for or justifies the rezoning (or zoning) here involved stamps the resulting resolution with the invalidity pointed out in the Wakefield case, which was[***16] found to exist in the Baylis case.  It is here no less evident than it was in the latter case.

   The Baylis case is controlling here and it follows that the resolution is invalid for [**623] the reasons there stated.  The trial judge found it invalid because of the lack of any showing of error in original zoning, and inferentially (though certainly not expressly) he also rejected the appellants' contention that [*378] conditions had changed sufficiently to warrant rezoning. In view of our holding that it is invalid because of the perhaps even more fundamental defect above stated, we need not review the holding of the trial court or the question of alleged error in original zoning or of changed conditions.

   Our holding that the rezoning resolution of April 15, 1958, is invalid calls for the affirmance of those parts of the decree appealed from which so declare it and which enjoin the Roses and the Board from putting into effect the rezoning attempted by that resolution.  There remains for consideration the second part of the injunctive provision of the decree which enjoins the Roses from making any use of the property other than such uses as are permitted in areas zoned[***17] as "Cottage Residential".  This brings up a number of problems, including several which were not decided by the trial court nor even presented to it.

   The second prayer of the bill was that the Roses be enjoined from using the property for any purpose not permitted by the zoning regulations in force immediately prior to the adoption of the April 15 resolution.  The decree was more specific in limiting uses to those permitted under the "Cottage Residential" classification. It appears that this was inadvertently adopted on the assumption that the harbor had been previously zoned in that manner, just as the Board's resolution had assumed.  The fact seems to be that, if the harbor was zoned at all, it was zoned as "Agricultural".  Since the decree applies to all the property which the Board attempted to rezone, and since the Board's formal resolution expressly applied to the harbor, some modification of this portion of the decree referring to "Cottage Residential" uses is called for.  A modification of the decree in conformity with the second prayer of the bill so as to prohibit uses other than those permitted under zoning regulations in force immediately prior to the adoption of the[***18] April 15 resolution is in order.  However, in view of other questions sought to be raised in this case, such a modification may leave considerable uncertainty.  We do not think that these questions may properly be resolved at this time on the record before us.

   These other questions include: (a) whether the County has [*379] any statutory power to zone navigable water or the bottom under such water; (b) if so, whether the Anne Arundel County Zoning Ordinance undertakes to exercise such power; (c) whether, assuming the answer to questions (a) and (b) to be yes, has the harbor been zoned at all, and (d) if so, how; and (e) whether piers take the zoning of the land off or in front of which they may be erected (with a possible subsidiary question as to whether it would be the zoning of the land to which a pier may be connected or the zoning of the land in respect of which the riparian right to build a pier may exist).  A still further question (f) might arise with regard to the contractual rights of purchasers of lots at Rose Haven in addition to their right of access to the harbor which was the basis for the third (and unappealed) portion of the decree of the trial court.  We think [***19]that all of these questions should be left open for further consideration in this case or in other proceedings which might be or become appropriate.

   The appellants have urged us to decide at this time questions (a) to (e) inclusive; but, apart from expressing the view above stated, that the harbor as a whole, if zoned at all, was zoned as "Agricultural" and not as "Cottage Residential" prior to April 15, 1958, we do not think that we should do so. There was some discussion during the trial as to whether or not water was zoned in Anne Arundel County, but we do not think that any point was raised with regard to the [**624] power of the County to zone areas covered by navigable waters or with regard to whether or not the County Zoning Ordinance undertook to exercise such power, if it existed.  The first of these questions, which the appellants describe as the most far reaching issue in the case, we think, was not actually presented until the appellants filed their reply brief in this court.  That is too late under Rule 885 of the Maryland Rules.

   The decree will accordingly be affirmed insofar as it declares the ordinance of April 15, 1958, to be invalid and enjoins the Roses and[***20] the Board from putting the attempted rezoning into effect, but the case will be remanded as to that portion of the decree, dealing with the limitation of uses to which the property may be put, for the modification thereof [*380] and for such further proceedings, if any, in connection with such modification as may be appropriate and as may not be inconsistent with this opinion.

   Decree affirmed in part and in part remanded for modification of the decree and further proceedings not inconsistent with the opinion herein, the appellees to pay the costs of their brief; the appellants to pay the other costs of this appeal. 

SOLOMON'S MARINA, INC. et al. v. ROGERS 
No. 97, September Term, 1959
 
Court of Appeals of Maryland
 
221 Md. 194; 156 A.2d 432; 1959 Md. LEXIS 433

 December  16, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgment reversed, with costs; judgment entered for Titanium Ores, Inc., for the property replevied, and case remanded for the ascertainment of damages.

CORE TERMS:  boat, offering, hull, estoppel, certificate, circular, stockholder, asserting, minutes, inducements, balance sheet, exploration, purchasers, truck, written contract, replevin suit, conditional contract, agreed to purchase, corporate assets, good conscience, purchase price, technical rule, ownership, identification, unconditional, corresponding, modification, convenience, ambiguous, debentures

COUNSEL: Jack Pinkston, with whom were Pinkston, Foley & Smith on the brief, for appellants.

   No brief and no appearance for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*195] [**433] A vendor of a boat to a corporate vendee, of [***4]which he was a major stockholder, director and officer, repossessed it and successfully defended a replevin action on the ground that passage of title was conditioned on payment of the purchase price. The corporate vendee appealed. 

   Rogers, the appellee, and Jefferson and Lutes were the [*196] stockholders, officers and directors of Titanium Ores Corporation, chartered in 1953.  In 1954 the corporation needed a boat to survey for ore in the Chesapeake Bay.  It purchased a hull from Rogers, who among other related activities carried on a boatyard and marina.  The minutes of the meeting of the directors of the corporation, held October 9, 1954, provide:

   "It was agreed to purchase from Tidewater Pier and Dredging a 26 foot Navy motor sailer hull for $1300.00.  Payment for the hull to be made at the convenience of the corporation.  If at some later date the corporation no longer desires or has need for the boat, the boat may be returned to Tidewater Pier and Dredging Company with improvements intact which improvements shall serve as payment for any and all use of the hull. The boat, named T102 is to be used for the exploration of our present and other mineral deposits."[***5]
 
At the same meeting the corporation agreed to purchase a truck from Jefferson, "Payment to be deferred and made at the convenience of Titanium Ores Corporation." Truck and title were passed to the corporation.

   On October 23, 1954, beneath the word "approved," Rogers, Jefferson and Lutes each signed his name to the minutes. The minutes refer to the purchase of a hull, and Rogers says that was what was sold.  The other two, particularly Jefferson, say that additions had been made to the hull before the sale in October, 1954.  However, it is agreed that, whether before or after the sale, an engine, a cabin, a toilet and bunks were installed by Rogers at a cost to Titanium Ores of $2,854.70, so that its total investment in the boat was $4,154.70, of which $1,300.00, the original purchase price, remains unpaid.  The boat was delivered to and used by the corporation until 1958 when, after a falling out with his confreres, Rogers went to Solomon's Marina, Inc., where the craft was berthed, and had it towed to his own yard.  The replevin suit followed.  In addition to the boat, Rogers sold or leased to the corporation equipment and [**434] services for which [*197] he was[***6] paid over $82,000.  The corporation, at the time of the trial, was in low financial condition and the trial judge appears to have concluded that, as of that time, it could not pay Rogers the $1,300.00 purchase price of the boat.

   Jefferson and Lutes say that the sale of the boat to Titanium Ores was unconditional and that title was intended to, and did, pass to the corporation, just as did the title to the truck. Rogers says he was supposed to be given a note for $1,300 and that he kept the Coast Guard certificate of identity of the boat in his name as evidence that title was not to pass until the note was paid. He does not claim that a conditional contract of sale was intended to be, or ever, was executed.

   In 1955 and in 1957, pursuant to exemptions from the Securities and Exchange Commission, Titanium Ores offered securities for sale to the public.  On October 18, 1955, by offering circular of that date, 300,000 shares of common stock were offered at $1.00 a share from which the corporation realized over $200,000 net from purchasers of stock.  The balance sheet of Titanium Ores, as of July 31, 1955, made a part of the offering circular, showed in the assets column equipment[***7] and machinery of $107,014.65 which, it was testified to without challenge, included the boat at a cost of $4,154.70, and in the liabilities column showed "Notes on Equipment -- J. B. Rogers (boat) -- $1,300.00."

   On May 16, 1957, by offering circular of that date, Titanium Ores offered for sale to the public $250,000 face value of 6% convertible debentures and received approximately two hundred thousand dollars net from various purchasers. The balance sheet of the corporation, this time as of December 31, 1956, again was made a part of the offering circular. It showed among the assets various items of equipment, including "Power Boat for Exploration -- $4,154.70 less note payable [to] J. B. Rogers $1,300.00 -- $2,854.70."

   It was not disputed below, and the trial court found, that Rogers, a major stockholder, director and vice-president of Titanium Ores, authorized the issuance and had full knowledge of the details of the two offering circulars.

   The corporate minutes, the only writings immediately concerned with the sale of the boat by Rogers to the corporation, [*198] are perhaps inconclusive as to whether the Rogers version or the Jefferson-Lutes version of the transaction [***8]is the correct one.  It is admitted by Rogers that the Coast Guard certificate does not control ownership, rather, that it is a combination of a license and means of identification, somewhat like the certificate of title of an automobile in most States.  Compare Welebir v. Gilbert, 209 Md. 181.

   Regardless of what the original bargain may have been, we think Rogers cannot now say that Titanium Ores did not acquire title as well as possession.  We noted in Evergreen Amusement Corp. v. Milstead, 206 Md. 610, 616, that in Saul v. McIntyre, 190 Md. 31, 36, the Court said "Conduct of the parties to a written contract not only may amount to construction of ambiguous provisions but may evidence subsequent modification of the contract." It well may be that by their conduct Rogers and Titanium Ores have clarified whatever ambiguity there may have been in the corporate minutes or have modified their terms and effect, with the result that title to the boat passed to Titanium Ores.  In any event, we find Rogers to be estopped to claim that title is not in the corporation. Estoppel has been defined and redefined by the cases.  A late case is Fitch v. Double "U" Sales Corp., 212[***9] Md. 324, 338-339, where it is said: "Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which may have otherwise existed, either of property, of contract or of remedy, against another person who has in good faith relied upon such conduct and has been led thereby to change his position [**435] for the worse, and who on his part acquired some corresponding right either of property, of contract or of remedy.  * * * Equitable estoppel operates to prevent a party from asserting his rights under a general technical rule of law, when that party has so conducted himself that it would be contrary to equity and good conscience to allow him to do so." See also Liberty Mutual Insurance Co. v. American Automobile Insurance Co., 220 Md. 497.

   Rogers voluntarily and knowingly put out inducements to the general public, in the form of offering circulars, to invest [*199] in or lend money to the corporation of which he was a major owner, as well as director and officer. Included in the inducements was the representation that the corporation owned a boat which had cost $4,154.70 and on[***10] which $1,300.00 was due, that was used to conduct explorations in aid of the corporation's business purposes. Individuals answered the inducements by investing and lending hundreds of thousands of dollars to a corporation which now appears to be struggling to continue, if not moribund.  These owners in, and creditors of, the corporation have a right to have the boat be a part of the corporate assets, as it was represented to them to be, and the corporation is asserting this right against Rogers.  Rogers is estopped to say that it cannot do so successfully.  A case not dissimilar on the facts is American Indemnity Co. v. Peak (Kan.), 274 P. 227. See also Lead Cliff Mining Co. v. Wickstrom (Idaho), 290 P. 390; Machovec v. Shipley, 171 Md. 339; Mohr v. Universal C. I. T. Corp., 216 Md. 197; McNamara v. Feihe, 139 Md. 516; United States v. Maryland Casualty Co., 38 F. Supp. 479, 484; 3 Fletcher, Private Corporations, Sec. 854 (1947 Replacement Volume); 31 C. J. S. Estoppel, Secs. 78 and 106.  Compare, by way of analogy, 2 Restatement, Second, Trusts, Sec. 313 (1959); 2A Bogert, Trusts and Trustees, Sec. 466 (1953).

   The judgment must be reversed[***11] and judgment entered for appellant.

   Judgment reversed, with costs; judgment entered for Titanium Ores, Inc., for the property replevied, and case remanded for the ascertainment of damages. 

COLEMAN v. STATE 
No. 142, September Term, 1959
 
Court of Appeals of Maryland
 
221 Md. 30; 155 A.2d 649; 1959 Md. LEXIS 411

 November  23, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed.

CORE TERMS:  truck, Post Conviction Procedure Act, burglary, police officer, sentenced, convicted, abandoned, sentence, occupants, perjury, street, drove, That Act, procedural statute, forms of procedure, accomplice, improved, spelled

COUNSEL: Fred E. Weisgal, for appellant.

   James H. Norris, Jr., Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, Joseph S. Kaufman, Assistant Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, [***2] for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*31] [**650] In this case, as in State v. D'Onofrio, 221 Md. 20, we granted leave to appeal in a proceeding under the Post Conviction Procedure Act, Code (1959 Supp.), Art. 27, Secs. 645A-645I, and the two cases were argued successively.  Here, the court below denied the petition, which was based upon alleged perjured testimony.  The original trial was held on August 26, 1955, the appellant being convicted, by the court without a jury, of breaking and entering, and sentenced to a term of five years.  Appeal was taken to this Court and the judgment affirmed.  Coleman v. State, 209 Md. 379. It appeared that certain television sets and radios were forcibly taken from a store in Glen Burnie in the early morning of April 7, 1955.  A police officer saw a truck going the wrong [*32] way on a one-way street in Glen Burnie at about 1:30 A. M.  He hailed it, but the driver drove away.  The truck was abandoned at the "dead end" of the street, and the four occupants fled.  Loretta Cox, and Dellavox were picked up in[***3] the vicinity shortly thereafter. The police officer could identify only one of the occupants, Myers.  The abandoned truck, which had been stolen, contained the stolen articles mentioned above.

   Loretta Cox, sixteen years old at the time of the burglary, testified she knew Coleman and the other boys and was with them in the truck. She sat in the truck with Dellavox while Myers and Coleman went to get coffee.  She heard a crash and they came back with certain boxes, and drove off.  The police chase ensued almost at once.  She had gone for a ride with the three boys, but had heard no previous discussion as to a burglary, and knew nothing about their intentions.  The chief contention raised in the case was that Loretta Cox was an accomplice, and that her testimony was uncorroborated.  No other witness connected Coleman with the burglary. She was not tried for any crime, but had been before the juvenile court.  There was no evidence as to the outcome of that proceeding.  We held that the trial court's finding that she was not an accomplice was not clearly wrong.

   [**651] The appeal was argued on February 8, 1956.  On February 16, 1956, the attorney for the appellant filed in this[***4] Court an affidavit purportedly made by Loretta Cox on that date, indicating that she had heard the proposal to steal a car and burglarize a store, some days before, and had full knowledge of their intent to commit the crime; that she had been guilty of perjury at the trial.  He asked this Court to stay its decision and remand the case to permit the filing of a motion for new trial on the basis of newly discovered evidence.  We held that we had no authority to grant the motion, citing Madison v. State, 205 Md. 425. For the reasons set out at length in State v. D'Onofrio, supra, we find no error in the refusal of the court below to grant relief under the Post Conviction Procedure Act. It is conceded that the State had no knowledge of the alleged perjury until after the trial of the original case.  There is no showing of a denial of any constitutional [*33] right. We think there is no remedy under any of the grounds spelled out in the new Act. That Act, as we have just held in State v. D'Onofrio, supra, is a procedural statute and does not create new grounds for granting post conviction relief.  It covers those previously available under other forms of procedure[***5] and sets up new and improved methods of dealing with such matters.  The change in Loretta Cox's testimony would not afford a basis for relief under habeas corpus or coram nobis procedures or any other common law remedy to which our attention has been called.

   In Coleman v. State, supra, we pointed out that under Rule 10 (c) (now Maryland Rule 744 c) the trial court still retained power (within ninety days after sentence, or receipt of a mandate) to reduce a sentence. It appears that within the time allowed, application was made to the trial judge, who considered the affidavit in that connection, suspended the sentence and placed the appellant on probation for a period of five years.  Thereafter, the appellant was tried on an assault charge in Baltimore City, convicted and sentenced to two years.  On January 8, 1957, the trial judge in Anne Arundel County after a hearing revoked probation and ordered that the appellant serve the original sentence of five years.  There was no appeal from either of these subsequent convictions.  We find nothing in the record that would have entitled the petitioner to relief in the instant case.

   Order affirmed. 

MAGRUDER v. HALL OF RECORDS COMMISSION et al. 
No. 63, September Term, 1959
 
Court of Appeals of Maryland
 
221 Md. 1; 155 A.2d 899; 1959 Md. LEXIS 407

 November  20, 1959, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing Filed December 17, 1959, Denied December 22, 1959.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed, the appellant to pay the costs.

CORE TERMS:  land office, ancient, designate, removal, constitutional requirement, germane, single subject, embrace, budgetary, forestall, invalid, Constitutional Law, validity of a statute, injunctive relief, reasonable doubt, subject matter, embraced, establishment, inconsistency, indefinitely, peculiarly, pertaining, preserving, relocation, contravenes, preserved, repealed, stricken, desired, furnish

COUNSEL: Eugene M. Childs, with whom were Childs & Bald on the brief, for the appellant.

   Stedman Prescott, Jr., Deputy [***4]  Attorney General, with whom was C. Ferdinand Sybert, Attorney General, on the brief, for the appellees.

JUDGES: Henderson, Hammond, Prescott and Horney, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*3] [**900] This is an appeal by Louise E. Magruder (the plaintiff), a professional genealogist, from the order of the Circuit Court for Anne Arundel County dismissing her bill for an injunction against the Hall of Records Commission (Records Commission), the Board of Public Works (Works Board or the Board) and the Commissioner of the Land Office (Land Office) to forestall the removal of the Land Office and its records [**901] from the Hall of Records to quarters in the new State Office Building.  Collectively, the Records Commission, Works Board and Land Office are sometimes herein referred to as "the defendants."

   In 1931, by Chapter 487 [now codified as amended as Code (1957), Art. 41, § 182], often herein called the "hall of records" statute, the Legislature, as an incident to the commemoration of the 300th anniversary of the founding of Maryland, authorized the Works Board to acquire a lot in Annapolis and erect thereon a Memorial Hall[***5] of Records "in which shall be gathered, placed and preserved all ancient public and private records of the Province and State of Maryland from the beginning of the Province to the adoption of the federal constitution, together with such others of a like character * * * [as may be deposited therein] * * * for the use of * * * all persons desiring to examine and use such records * * *; the said building, in addition to the special purposes * * * set forth, may be used for such other purpose as the Board of Public Works may determine not in conflict with said special purposes."

   In enacting the original hall of records statute the Legislature made no provisions for locating the Land Office in the Hall of Records.  Chapter 487, supra, was amended by Chapter 344 of the Acts of 1933, but again no provision was made respecting the location of the Land Office. In 1935, however, by Section 87B of Chapter 18 [now codified as § 172 of Art. 41, supra], it was provided, inter alia, that the Hall of Records [*4] which had then been erected on a site donated by St. John's College, should be placed under the supervision and control of the Records Commission.  By a part of Section [***6]87B [now § 172], supra, often herein called the "land office" statute, it was further provided "that the [Records] Commission shall allot and designate a portion of the [Hall of Records] building for the use of the Land Office."

   Thereafter, in 1939, by Section 6(3) of Chapter 64 [now codified as Art. 78A, § 8], often herein called the "location of agencies" statute, it was provided, inter alia, that the Works Board "shall have power to designate the location of any State agency." Section 8 of Chapter 64, supra, also provided that all public general laws or parts thereof inconsistent with the provisions of that act were "repealed to the extent of such inconsistency."

   As stated, this proceeding was filed to forestall the removal of the records of the Land Office from the Hall of Records to the new State Office Building, but, as matters now stand, in the absence of an agreement between the parties or prohibitory injunctive relief, the removal of the records to the new location is a fait accompli, with the result that some of the "ancient" records are located in one place and some in another.  It is conceded by the defendants that the present arrangements are[***7] not as convenient to the researcher as was the former arrangement.

   The chancellor found that the land office statute was mandatory, but that such provision was repealed by the location of agencies statute, and, therefore, that the power of the Works Board to change the location of the Land Office and its records was discretionary.

   In effect the plaintiff-appellant claims that when the Land Office was required to move from its prior location to its present location it was not required to take and should not have taken with it the ancient records of which it was the custodian.  Specifically, the plaintiff contends (i) that the enactment of the location of agencies statute did not necessarily repeal the land office statute in that there is no inconsistency between the two statutes when read together; (ii) that there was no implied repeal of the land office statute by [*5] the location of agencies statute in that the hall of records statute with respect to all ancient records is still in full force and effect; and, in the alternative, (iii) that the location of agencies statute is unconstitutional.  On the other hand, the defendants, in addition to defending the constitutionality[***8] of the [**902] location of agencies statute, insists (iv) that the Works Board had complete authority to order the removal of the Land Office and its records from the old location to the new.

   (i), (ii) and (iv)

   We are not persuaded by the plaintiff's arguments that the several statutes in question should be construed as she contends.  It is true, of course, that the land office statute required the Records Commission to furnish office space for the Land Office in the Hall of Records, so long as the Works Board desired the Land Office to remain in that location, but there is absolutely nothing in that statute which requires the Board to use such facilities indefinitely. Moreover, as we read the location of agencies statute, there is no doubt that the Board, pursuant to the authority conferred upon it by that statute -- unless it is unconstitutional -- has the power, whenever it may choose to exercise it, to designate the location or relocation of any state agency, including the Land Office. With these constructions of the pertinent statutes, we do not reach the question of consistency or the lack of it or the further question of whether or not there was a repeal by implication. [***9]

   While it may be that the Works Board has power under the hall of records statute to use the Hall of Records for the purpose of preserving the ancient records of the Land Office therein -- provided such purpose is not in conflict with the special purposes set forth in the statute -- it is clear that the exercise of such power is a matter which is peculiarly within the discretion of the Works Board.

   (iii)

   The plaintiff's contention that the location of agencies statute is invalid is based on the constitutional requirement that every enacted law "shall embrace but one subject" which "shall be described in its title." Constitution of Maryland, [*6] Art. III, § 29.  The gist of the plaintiff's argument is that the statute is multifarious because its objectives are two-fold in that the statute dealt with certain matters pertaining to the Department of Budget and Procurement as well as with certain powers and duties concerning the Works Board.  The statute did in fact do just that, but in so doing, it actually embraced but one subject in that it established a system of control over budgetary administration and procedure by and through the two executive agencies therein designated[***10] to carry out the methods of administration and procedure set forth in the statute.  The Maryland Reports are replete with decisions concerning the constitutionality of acts allegedly embracing more than one subject, but we shall cite only a few of the pertinent cases.  The reasons for the constitutional requirement are detailed in Davis v. State, 7 Md. 151 (1854). Repeatedly we have held that the title of an act satisfies the constitutional requirements if the legislature and the people of the state are fairly advised of the real nature of pending legislation.  Allied American Co. v. Comm'r, 219 Md. 607, 150 A. 2d 421 (1959). We have held time and time again that there is a presumption in favor of the validity of a statute, that it will not be stricken down as invalid unless it plainly contravenes a provision of the constitution and that a reasonable doubt in its favor is enough to sustain it.  Atkinson v. Sapperstein, 191 Md. 301, 60 A. 2d 737 (1948). Finally, if the several sections of the statute refer to and are germane to the same subject matter described in the title, the statute is considered to embrace but a single subject, and satisfies the constitutional requirement. [***11] McBriety v. Baltimore City, 219 Md. 223, 148 A. 2d 408 (1959). Since all of the sections of the statute under attack are germane to and deal with only one subject -- the establishment of the budgetary administration and procedure of the state -- which is adequately described in the title, we hold that the statute is constitutional and effective to give the Works Board authority [**903]to designate the location of state agencies.

   Reverting momentarily to the underlying issue behind this appeal -- the propriety of again separating the ancient records of the Land Office from those other ancient records still preserved [*7] in the Hall of Records -- it is clear that there is at present no legislative authority requiring that such records be kept together.  On the other hand, if it chooses to do so, there does not appear to be any reason why the Works Board, in consultation with the Records Commission -- and perhaps the Commissioner of the Land Office also -- could not direct a return of the "ancient" records of the Land Office to the Hall of Records, but that, as previously indicated, is an executive, not a judicial, function.

   For the reasons stated herein the order of[***12] the lower court must be affirmed.

   Order affirmed, the appellant to pay the costs. 

ALVEY v. ALVEY et ux. 
No. 32, September Term, 1959
 
Court of Appeals of Maryland
 
220 Md. 571; 155 A.2d 491; 1959 Md. LEXIS 540

 November  17, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed, the appellant to pay the costs.

CORE TERMS:  purchaser, memorandum, demurrer, specific performance, estoppel, acquiescence, convey, seller, down payment, silence, sustaining, chancellor, asserting, estopped, estop, partial, straw, deeds, sale of land, doctrine of equitable estoppel, part performance, parcel of land, sole owner, unconscientious, conveyance, acquiesced, signatory, answered, entirety, demurred 

COUNSEL: George B. Woelfel, for appellant.

   Eugene M. Childs, with whom were Childs & Bald on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*573] [**492] [***3] When the Circuit Court for Anne Arundel County sustained the demurrer of the wife to the amended bill of complaint of a purchaser against the seller of a parcel of land and his wife for specific performance of the memorandum of sale signed by the husband, but not the wife, the purchaser appealed.

   The amended bill in substance alleged that R. Bradley Alvey (the seller, husband and one of the defendants) and Pauline Alvey (the wife of the seller and the other defendant) on April 29, 1955, "did agree to convey" to Howerton Alvey (the purchaser and plaintiff) a parcel of land situated in Anne Arundel County, at and for the sum of $2750, of which $2250 was "paid [to] the * * * defendants" as a down payment. The bill further alleged that "even though the contract was executed by * * * [the husband] alone on behalf of the [g]rantors, his wife * * * was well aware of all the facts pertaining to the making of the contract"; that the wife "was present on several occasions when the contract was discussed and was present and took part the day the contract was signed and [that] she counted the money several times"; that the wife stated "she was glad her husband had decided to sell off[***4] some of the property and she wholly acquiesced in the sale"; that the plaintiff "has no doubt that if he or his brother [the seller, husband and one of the defendants] had realized it was necessary for * * * [the wife to sign] the agreement, she would have done so"; that the wife "accepted part payment on account of the purchase price"; and that, after considerable delay caused by a dispute with an adjoining owner over a boundary line, the seller finally informed the purchaser that "he would not go through with the deal and advised * * * [him] to get the property the best way he knew how." Lastly, it was alleged that on or about November 7, 1957, the defendants, by and through a trustee, had conveyed the property to him and accepted a reconveyance as tenants by the entireties. The plaintiff, however, sought only specific performance and the usual "further relief."

   The husband answered the bill, but the wife demurred -- [*574] though she also answered -- by saying that the "contract * * * shows on its face that * * * [the wife] was not a signatory party."

   The demurrer, of course, had the effect of admitting only such facts as were well pleaded -- that the wife had accepted[***5] a part of the down payment; that she had acquiesced in the sale; and that although she had knowledge of the sale she accepted a conveyance of the property so sold as one of the tenants by the entirety -- and no more.  Other alleged circumstances -- that the wife was aware of the execution of the agreement to convey; that she was present when the transaction was discussed; that she "took part" on the day the memorandum was signed; that she counted the down payment; and that she was glad her husband had decided to sell -- are, factually, impertinent or irrelevant.

   The chancellor, in sustaining the demurrer, stated no reason for his action, and, since he had not been requested to file a memorandum of the grounds for his decision pursuant to Maryland Rule 18 c, we can only surmise -- since it was the only ground on which the demurrer was rested -- that the chancellor based his decision only on the assigned ground that the statute of frauds was a bar to the specific performance of a memorandum of sale the wife had not signed.  Whether or not the chancellor also considered the impact of the well pleaded facts on the statutory bar we have no way of knowing.  In any [**493] event, since [***6]it is conceded that the statute, in the absence of facts precluding its operation, would be a complete bar to specific performance on the part of the wife, the question is whether the wife, because of her actions or inactions, is estopped from asserting the bar of the statute as a reason why the demurrer should be sustained.

   The plaintiff contends that the wife is equitably estopped from denying that she was a party to the agreement to convey. On the other hand, the defendants contend that on the facts the wife as one of the present owners of the property cannot be shown to have entered into the agreement to convey.

   The plaintiff in seeking only specific performance instead of also claiming partial specific performance and attempting [*575] to set aside the "straw" deeds, n1 must show that the wife was a party to the agreement to convey. If the bill has failed to do that, then the wife's demurrer was properly sustained. The plaintiff was, of course, directly confronted with the statutory requirement that the "party to be charged" must have signed the memorandum. Statute of Frauds, 29 Car. II, Ch. 3, § 4 [Alexander's British Statutes, p. 689 (Coe's ed. 1912)]; Green [***7]  v. Drummond, 31 Md. 71 (1869). Furthermore, the mere acceptance by the wife of a part of the down payment in and of itself was not sufficient part performance to take the sale out of the statute.  Artz v. Grove, 21 Md. 456 (1864); 101 A.L.R. 919, 1079. The real question, then, is whether the wife's acquiescence in the sale was sufficient to estop her from asserting the bar of the statute as a reason for sustaining the demurrer. We think not.

n1 After this appeal had reached this Court, the plaintiff sought to recall it so that the bill could be further amended to claim partial specific performance, but when the defendants objected, the motion was denied.  The plaintiff also indicated in his oral argument that he now knows he also should have sought to set the deeds aside in this or a separate action.  But whether the plaintiff may still do either or both are not questions which are presently before us on this appeal.

   Since the marital status of the wife creates no special circumstances with respect to[***8] her ability to acquiesce which are not governed by the rules with respect to estoppel by acquiescence or silence generally [26 Am. Jur., Husband and Wife, § 32], the immediate inquiry is whether such acquiescence as exists in this case would estop anyone.  "Acquiescence or silence has been described as a quasi-estoppel," however, it is not such as would cut off the party's title, nor his remedy at law, but simply bars his right to equitable relief, and leaves him to the available legal actions.  3 Pomeroy, Equity Jurisprudence, § 817 (5th ed. 1941).  It has also been held that mere silence, standing alone, does not generally have the effect of an estoppel. Mohr v. Universal C.I.T. Corp., 216 Md. 197, 140 A. 2d 49 (1958); Furst v. Carrico, 167 Md. 465, 175 Atl. 442 (1934). Thus, in the instant case, if the acquiescence alleged is to constitute an estoppel, it must [*576] be shown that the classical elements necessary to establish an estoppel in pais are present.  See Pomeroy, op. cit., supra, § 805.  As we said recently in Liberty Mut. Ins. Co. v. American Auto Ins. Co., 220 Md. 497, 154 A. 2d 826 (1959) the doctrine of equitable estoppel "will[***9] not be applied unless it is shown that the person sought to be estopped has been guilty of some wrongful or unconscientious conduct upon which another relied and was misled to his injury."

   We think it is clear, from such facts as are shown by the pleadings, that prior to the execution of the memorandum of sale by her husband the wife did not represent or conceal any material facts on which the purchaser was entitled to rely.  The husband, at that time, was the sole owner of the property sold and it was with him that the purchaser dealt.  Furthermore, since the purchaser knew or should have known of the wife's inchoate right of [**494] dower, he should also have gotten her to sign the memorandum of sale.  The plaintiff thought that the husband was the owner and he was, and the wife did not by her silence induce him to believe otherwise.  Even though the wife was present and agreed to the sale, she had, at that time, no interest as an owner which she could sell, but had only a dower interest which, of course, she could have released had she been requested or required to do so.  Had the wife owned the property with her husband and knowingly remained silent, thereby misleading[***10] the purchaser to his detriment, the situation might be different.  See Boehm v. Boehm, 182 Md. 254, 34 A. 2d 447 (1943). Cf. Milburn v. Michel, 137 Md. 415, 112 Atl. 581 (1921) [a married woman under mistaken impression that husband owned property alone, who failed to disclose her own title at the time of execution of contract of sale by her husband, is not estopped to assert her title as against the purchaser].  See also Funk v. Newcomer, 10 Md. 301 (1856). But, here, where there was no duty on the part of the wife to speak since her marriage to the seller was well known to the purchaser, there does not appear to have been any intent on the part of the wife to perpetrate a fraud on the purchaser. Certainly there are not enough facts in the pleadings for us to say, as was said in Cole v. Cole, 41 Md. 301 (1875), that we will not [*577] permit a statute designed to prevent fraud to be used as an "engine of fraud." Since the plaintiff failed to show that the wife had made herself a party to the agreement to convey, we hold that the demurrer was properly sustained.

   In this case as it is now before us, we do not reach the question suggested by the purchaser in[***11] this Court as to the effect of the straw conveyances.

   The order of the lower court will be affirmed.

   Order affirmed, the appellant to pay the costs. 

BOBLIT v. STATE; BRADY v. STATE (Two Appeals In One Record) 
No. 14, September Term, 1959
 
Court of Appeals of Maryland
 
220 Md. 454; 154 A.2d 434; 1959 Md. LEXIS 523

 September  24, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson and Evans, JJ.

DISPOSITION: Judgments affirmed.

CORE TERMS:  confession, killing, robbery, perpetration, immaterial, murder, reward, inadmissible, shotgun, killed, Criminal Law, first degree murder, specific intent, categorically, mistreated, abandoned

COUNSEL: George B. Woelfel, for John L. Brady, one of the appellants, and Morris Turk, with whom was Louis M. Strauss on the brief, for Charles Donald Boblit, the other appellant.

   Stedman Prescott, Jr., Deputy Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*456] [**434] These separate appeals in one record are from judgments and death sentences passed after convictions of first degree murder, in cases tried separately.  It is conceded that Brady and Boblit lay in wait for the victim, William Brooks, placing a log across his private driveway, in order to[***3] obtain possession of his car and money.  Boblit was armed with a shotgun and Brady with a pistol.  When Brooks got out of his car, Boblit struck him in the head with the barrel of the shotgun. They placed Brooks in the car, and after driving a certain distance, they carried Brooks into the woods, where one of them throttled him with Boblit's shirt.  Each claimed that the other had actually strangled Mr. Brooks.  They concealed the body, and divided the contents of Brooks' pocketbook containing some $250.  They abandoned the car near Lynchburg, Virginia.  Boblit went home, Brady fled to Florida.
 
   [**435] The sole contention raised on behalf of Brady is that his confession was obtained by force, or promise of reward. Brady made two confessions to the F.B.I. in Florida which were admitted in evidence without objection.  When picked up by the Anne Arundel County police, he showed them where the car and articles of bloody clothing had been abandoned in Virginia. Brady was taken to Ferndale Police Station about 7:30 P. M. on July 8, and gave the statement objected to the following morning about 10:30 A. M., July 9.  It is conceded that he was not mistreated in any way.  Cf. White [***4]  v. State, 201 Md. 489, 491, and cases cited.  Moreover, Brady took the stand and admitted virtually everything set forth in his confessions. Cf. Chisley v. State, 202 Md. 87, 104 and Daniels v. State, 213 Md. 90, 106.

   Brady testified at one point that he was told, in effect, that if he confessed the police would release his girl friend who was being held as a witness.  If we assume, without deciding, that this would render the confession inadmissible, it is sufficient to say that all of the police and other officials categorically denied that any such promise or statement was made.  We cannot find that the trial court was in error in accepting this version of what occurred.  Cf. Peters and Demby v. State, 187 Md. 7, 15.

   [*457] Boblit contends that he should not have been found guilty of first degree murder, because according to his version, he did not actively assist Brady in strangling the victim.  It is conceded that Boblit conspired with Brady to rob Brooks, but it is contended that the murder was not committed in perpetration of the robbery, but was "separate and distinct." We think it is clear that the robbery was not complete at the time Brooks was killed. [***5]The plan was to secure the car and money of the victim by force, and that purpose had not been fully accomplished until the owner was disposed of. Boblit admitted that the money was not "split" until after the murder, and that he received about $120.  Moreover, Boblit admitted that he and Brady discussed killing Brooks just before the killing occurred.  "Brady said he would have to shoot him I didn't say nothing I was too scared." In reply to the question: "Was it agreeable with both of you that Mr. Brooks had to be killed?" Boblit replied "Yes sir." At that time the shotgun "was still up from laying between my feet." It is immaterial that the method of killing was not discussed, or that Boblit had no specific intent to do the act himself.  It was clearly in perpetration of the robbery, and hence covered by the statute, Code (1957), Art. 27, sec. 410. Cf. Stansbury v. State, 218 Md. 255 and Shockley v. State, 218 Md. 491.

   Judgments affirmed. 

CROMWELL v. SHARON BUILDING & LOAN ASSOCIATION, INC. et al. 
No. 272, September Term, 1958
 
Court of Appeals of Maryland
 
220 Md. 317; 152 A.2d 548; 1959 Md. LEXIS 510

 June  26, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  mortgage, mental capacity, deed, annul, unconscionable, broker, undue influence, unfair, chancellor, brokerage, mortgagee, inspection, execute, grantor, presume, confidential relationship, appellant-mortgagor, settlement, guaranty, insanity, appendix, porch, roof, confidence, reposed, duress, bylaws, Maryland Rule, foreclosure proceedings, clearly erroneous

COUNSEL: O. Bowie Duckett for the appellant.

   R. Lewis Bainder for the corporate appellee.

   No brief and no appearance for Oscar Brilliant, appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*319] [**549] Ida Cromwell, an elderly and illiterate Negro woman, her two daughters and eight grandchildren decided, in 1956, to place new shingles on the roof of her small home and to make certain repairs to the porch. It turned out to be a fateful and unfortunate undertaking for them.  Ida contracted with a company, Home Modernizers, now out of business, to do the work.  The shingles on the roof were to cost $695; the repairs to the porch $1125.  In order to pay for[***5] the same, two loans were made, both being financed by the Baltimore Federal Savings and Loan Association (Baltimore Federal).  Neither the record nor the briefs make clear the details of the financing, but Ida and her daughters gave a promissory note to Home Modernizers for the sum of $1523.18, dated August 20, 1956, which was discounted by Baltimore Federal, with recourse against the Home Modernizers.  Merhle Sacks, the operator of Home Modernizers, approached Albert F. Reisfeld, an attorney, a real estate operator, and the owner of the Strand Company, which he operated as a brokerage concern, in regard to obtaining a loan to be secured by mortgage on the Cromwell property in order to pay off the note held by Baltimore Federal. The Strand Company got a commitment from [*320] the appellee, Sharon Building & Loan Association, Inc., (Sharon), to make such a loan in the amount of $1650, and obtained from Ida Cromwell, a written agreement to pay Strand 5% of the loan as a brokerage fee and guaranty fee for guaranteeing the payment of $400 of the loan.  Sharon was represented at the settlement by William Reisfeld, an attorney, who was the father of Albert Reisfeld, the owner of [***6]the Strand Company.  Two men, probably Merhle Sacks and a helper, picked up Ida Cromwell and took her to the office of William Reisfeld to effectuate a settlement.

   [**550] Ida testified she had never seen the men before; she had no idea why she was going to Baltimore; she signed two papers without knowing what they were or why she was signing them; she could not read them and she did not ask that they be read or explained to her.  On the contrary, William Reisfeld, in his deposition, stated that the papers were fully explained to her before she signed them.

   At the settlement on September 8, 1956, Sharon gave its check for the sum of $1650 to Ida, who, in turn, indorsed the same.  William Reisfeld deposited the check in his account and made disbursement.  He disbursed $82.50 to Strand Company in accordance with Ida's agreement with that company, $47.50 as an entrance fee, $15 as a president's fee and $15 as an inspection fee to Sharon; and, after payment of other costs and taxes, he paid the balance of $1315.05 to Baltimore Federal in payment of the note held by it.  There was a small additional amount due Baltimore Federal to make payment in full, which was absorbed by[***7] Home Modernizers.

   The mortgage given by Ida to Sharon was payable in monthly installments, which were made until the middle of 1957 when she became in arrears and foreclosure proceedings were filed, but, upon her raising and paying $200, were discontinued.  The monthly payments were resumed and continued until February, 1958, when, again, they halted, due this time to the fact, as stated by Ida, she had "runned out of money."

   Foreclosure proceedings were again instituted and this time carried to a conclusion.  After the sale, the appellant here filed exceptions to its ratification, which were overruled and the [*321] sale finally ratified and confirmed, no appeal being taken from that order.

   The appendix fails to show what was a reasonable and proper charge for repairing the roof and the porch, but the chancellor does state, in colloquy with counsel, that Home Modernizers "has done her out of a lot of money."

   This is an original suit, entirely independent of the foreclosure proceedings above mentioned, to annul and set aside the mortgage on the grounds that its execution was induced by misrepresentation, fraud, undue influence and mistake.

   The appellant urges that an equity[***8] court should vacate this "unfair and unconscionable mortgage where one of the parties is incapable of understanding its contents." n1 It is, of course, true that under proper circumstances equity courts will annul instruments because of the unfair and unconscionable methods used in obtaining their execution.  In the case at bar, the plaintiff has failed to show any word or action of the appellee that was unfair or unconscionable. If there were such conduct, it was by others than the appellee, insofar as disclosed by the record.  Relief has been prayed on the ground that the mortgage was obtained through "fraud, undue influence and mistake"; yet, when the testimony was taken, it disclosed none of the three. The appellant's incredible version of the execution of the mortgage was that she was asked by two unknown men to go to Baltimore to sign some papers; she consented and went there, where she signed two papers (she actually signed, at least, four); that she did not know what she was signing, or why, and had no idea as to what the papers related; and that she could not read, no one read them to her and she did not request that they be read.  It is difficult to conclude that she[***9] was entirely frank and fair with the court when she gave this statement; she did not testify explicitly to any fraud, undue influence, misrepresentation or deceit on the part of the appellee or any of its agents.  The [**551] situation at the [*322] time of the execution of the mortgage disclosed to her the necessity of inquiry and investigation if she did not understand the nature and details of the business at hand.  The information was available and obtainable by a simple inquiry or a request that the instruments be read.  Under circumstances of this nature, knowledge of a fact, or the context of an instrument, is imputed to a party, although lacking in education and business affairs, who would have acquired actual knowledge of the fact or of the contents of the instrument, if she had made the inquiries that it was reasonable for her to have made, and, therefore, negligent for her not to have made.  Golden v. Kovner Bldg. & Loan Ass'n, 156 Md. 167, 173, 143 A. 708.

n1 We lay aside the procedural aspect of the case.  It will be noted that the mortgage has been foreclosed and the sale ratified after exceptions thereto were overruled.  No appeal was taken from the order of ratification.  We are now requested to "annul and set aside the mortgage."

[***10]

   We come now to the question of the mental capacity of the appellant.  She does not claim that she lacked mental capacity by being bereft of reason due to lunacy or insanity, but that due to ignorance she failed to have sufficient mental capacity to "understand the terms of the mortgage." There have been many cases in Maryland wherein this Court has been requested to cancel deeds due to the mental incapacity of the grantor. Quite naturally, in some cases they have been set aside, and, in others they have not.  A reading of these cases establishes a rather simple rule.  Literacy is not a prerequisite for the owner of land to have full dispositive power thereover.  The necessary mental capacity of the grantor in a deed is that he be able to understand and comprehend its nature and natural consequences, the property with which it deals, and to act with judgment and understanding in respect to it.  And the crucial time concerning such capacity is the time of the execution of the deed. Mead v. Gilbert, 170 Md. 592, 603, 185 A. 668; Wise v. Swartzwelder, 54 Md. 292; Marmaduke v. Dyer, 208 Md. 525, 119 A. 2d 367; Masius v. Wilson, 213 Md. 259, 264, 131 A. 2d 484. Cf. 59[***11] C.J.S., Mortgages, Sec. 139.
 
   As stated above, there is no claim of insanity on the part of the appellant. The only testimony offered which related to her mental capacity was that she did not finish the first grade in school.  The law does not attempt to designate the amount of education required to execute a valid deed or contract, but has educed the rule stated above with reference to [*323] the requisite mental capacity. The law presumes that one who executes a deed is possessed of sufficient mental capacity to make a valid and binding contract, Mead v. Gilbert, supra, 170 Md. at page 604, and the burden to overcome this presumption is upon the one who claims to the contrary, Gordon v. Rawles, 201 Md. 503, 512, 513, 94 A. 2d 465. Upon the record as it is presented to us, we are constrained to hold, as the chancellor apparently did, that the appellant failed in meeting this burden, which means that, at least for the purposes of this case, the appellant had sufficient mental capacity at the time she executed the mortgage to make a valid deed or contract.  The rule is well established that a competent person cannot impeach his own deed unless its execution was induced[***12] by fraud or duress, or mistake made under circumstances sufficient to charge the grantee with knowledge thereof, which good faith required him to disclose to the grantor. Gross v. Stone, 173 Md. 653, 664, 197 A. 137. No fraud, duress or mistake has been shown on the record in this case.  As a matter of fact, the appellee parted with the full amount of the consideration for which the mortgage was given except certain "fees" charged by it, which were not shown to be exorbitant by any affirmative evidence to that effect.

   We shall consume little space in considering the contention that a confidential relationship existed between the appellant and the attorney for the appellee.  It was not shown that she had ever seen him before her visit to Baltimore when she signed the mortgage; that she reposed any special trust or confidence in him; that he, in any manner dominated her actions; that she was justified, under the circumstances [**552] of this case, in assuming that he would act in a manner entirely consistent with her welfare; or that she reposed any confidence in him that resulted in the substitution of his judgment for hers in any material matters involved in the transaction. [***13] We therefore, conclude that no legal confidential relationship existed between the appellant and the appellee's lawyer.  Bass v. Smith, 189 Md. 461, 469, 56 A. 2d 800; Owings v. Currier, 186 Md. 590, 603, 47 A. 2d 743; Upman v. Thomey, 145 Md. 347, 358, 125 A. 744; Zimmerman v. Hull, 155 Md. 230, 240, 141 A. 531; 15 C.J.S., Confidential, pp. 821, 822, 823.

   [*324] It is quite difficult to state with clarity and precision exactly what the last contention of the appellant is.  Apparently, she claims that the bylaws of the appellee provide that every member shall pay an entrance fee not in excess of two dollars per share, but the appellant was charged $47.50 for 17 shares, or $13.50 too much; that she was charged "illegal" inspection and president's fees of $15.00 each; and that an "unconscionable" broker's fee of $82.50 was allowed.  No portion of the bylaws is printed in the appellant's appendix; consequently, we are not called upon to pass upon the propriety of the alleged $13.50 overcharge.  Rule 828 b 1(b); McBurnie v. McBurnie, 214 Md. 210, 134 A. 2d 78. While the appellant claims the inspection and president's fees of $15.00 each were illegal, [***14] she fails to point out wherein the chancellor was clearly erroneous (Rule 886 a).  The record fails to disclose what either fee was for, other than there were charges made therefor (by the names "Pres. Fee" and "Inspection Fee") on the settlement sheet.  Under these circumstances, we are not called upon to presume what they were for and that they were illegal.  The $82.50 "brokerage fee" was shown to have been the result of a contract directly between the appellant and the broker, Strand Co. It also involved a guarantee by the broker of the payment of some $400 of the principal of the mortgage. No evidence was offered in an attempt to show this was an unreasonable or unconscionable charge; and, assuming it to be unreasonable, no ground is advanced to show that this would invalidate the appellee's mortgage. There was no showing of any relationship between Strand and Sharon, other than a business one.  The brokerage and guaranty fee was paid by the appellee as the result of the appellant's contract made directly wth the broker; the appellee parting, as stated above, with all of the consideration for which the mortgage was given, except the fees allowed to it.

   Finding no error in[***15] the rulings of the chancellor, the decree will be affirmed.

   Decree affirmed, with costs. 

GLEN BURNIE SHOPPING PLAZA, INC., et al. v. SCHREIBERBROTHERS, INCORPORATED 
No. 256, September Term, 1958
 
Court of Appeals of Maryland
 
220 Md. 303; 152 A.2d 807; 1959 Md. LEXIS 508

 June  25, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Cause remanded for the purpose of the passage of a decree not inconsistent with this opinion; the appellants to pay the costs.

CORE TERMS:  grocery, drugstore, lease, tenant, normally, shopping center, selling, space, food, landlord, merchandising, retail, stock, subsidiary, fence, supermarket, sub-leased, injunction, sub-lease, enjoined, decree, third person, privilege of selling, exclusive right, food product, present form, merchandise, customarily, prejudicial, sub-lessee

COUNSEL: Sidney Schlachman, with whom were Harry Silbert and J. Seymour Sureff on the brief, for appellants.

   William J. McWilliams and Joseph S. Kaufman, with whom were Needle & Melnicove on[***4] the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*305] [**808] Glen Burnie Shopping Plaza, Inc., (Shopping Plaza), and Two Guys From Harrison, Inc., (Two Guys, Md.) both Maryland corporations and defendants below, appeal from a decree of the equity court of Anne Arundel County, which permanently enjoined them from offering for sale and selling meats, poultry and other enumerated items of food, beverages and merchandise at the premises known as Glen Burnie Shopping Plaza.

   There is little dispute as to the facts themselves; rather the dispute is whether, under the facts, the defendants violated a covenant contained in a lease from Shopping Plaza to the appellee-plaintiff, Schreiber Bros. Inc., (Schreiber).  Shopping Plaza was the owner of a shopping center located at the intersection of 6th Avenue and Ritchie Highway in Glen Burnie, and, on January 18, 1957, it entered into a lease with Schreiber [*306] for a portion thereof, which said lease contained among its provisions, the following:

   "4A. Tenant covenants and agrees that the demised premises shall[***5] be used by the Tenant for the following purposes and for no other purposes whatsoever -- [**809] for the use of a retail food supermarket.

   "Sale and marketing at retail, and warehousing, storage and packaging incidental to sales of the following:

   "Exclusive Items: meats, poultry, beverages, groceries, grocery household items, grocery toilet articles, produce, fruits, vegetables, bakery products, sea food, dairy and delicatessen products, dried or canned or packaged in any manner whatsoever, all for consumption off the premises only.

   "Tenant will not sell any drugs or patent medicines.  Landlord will not permit any other tenant of the shopping center (other than the within Tenant) to sell any food product items normally and generally sold by food markets or to sell any of the above 'Exclusive Items', except as noted below.

   "It is understood that Sun Ray Drug Co., as a tenant in the shopping center, may sell groceries normally sold in a drugstore."
 
After this and other leases were entered into by Shopping Plaza, all of its stock was acquired by Two Guys From Harrison, Inc., a New York corporation (Two Guys, N. Y.), which also owns all of the stock of Two Guys, Md., a[***6] Maryland corporation and an appellant herein.  However, it is unmistakably clear that, before Two Guys, N. Y., bought the stock of Shopping Plaza, it tried to make certain that it would be able to carry on, as a part of its merchandising operation here, n1 the sale of produce generally sold by retail food markets.

n1 The parent company, Two Guys From Harrison, Inc., of New York, does a large business in many parts of this country -- some $60,000,000 per year.  It consists of merchandising a large number of items, with food produce being a substantial part of its business.

   [*307] In an attempt to effectuate this result, it evolved the following rather ingenious but somewhat callous plan.  Changes in several of the leases were first obtained, but Schreiber refused to agree to any change whereby it released its exclusive coverage under its lease. The Sun Ray Drug Company (Sun Ray) mentioned above in Schreiber's lease, had been demised some 10,000 square feet in the shopping center by lease on February 4, [***7] 1958.  It was claimed by the appellants that Sun Ray had set aside 5500 square feet of its space to sell "groceries normally sold in a drugstore." Home Utilities of Glen Burnie, Inc., (Home Utilities), another totally owned subsidiary of Two Guys, N. Y., sub-leased this 5500 square feet of space from Sun Ray with the claimed privilege of selling groceries customarily sold by drugstores. This, in effect, made Two Guys, N. Y., landlord to itself as tenant of the 5500 square feet and tenant to itself as landlord thereof; and, after it started selling many grocery items in addition to those usually sold in drugstores -- which it did -- it was in direct competition with its tenant, Schreiber.  The 5500 square feet sub-leased from Sun Ray was separated from the drugstore operations of that concern by an iron fence, or similar structure, so that a customer in the drugstore was required to go out one door and in another in order to purchase groceries in the 5500 square feet area; however there was no fence or obstacle of any kind between this area and the general operations of Two Guys, Md.  In other words, while the 5500 square feet of space is (theoretically or from a bookkeeping standpoint) [***8] being conducted by Home Utilities as a sub-lessee of Sun Ray, it, to the general public and in reality, is being operated as a part of the overall merchandising of Two Guys, Md.  The pictorial, as well as the oral, evidence makes it definitely clear that the operation upon this space was very close in nature and character to that of a supermarket and greatly exceeded the ordinary selling of groceries in the average drugstore.

   During the course of the trial, Martin K. Schreiber testified, over objection, [**810] that his agent made an investigation as to the products sold by Two Guys, Md.  He was permitted to read a list of items and to state that they were purchased, in his absence, by people who were not present in court.  He identified [*308] items of groceries and other merchandise from a series of sales receipts showing only prices with no indication of the nature of the corresponding item which had been purchased.  There is no doubt that this evidence was objectionable and should have been excluded.  A part of it is plainly hearsay, and, in regard to the sales slips, it is well settled that a witness should not be permitted to give evidence of his inferences from what [***9]a third person has written.  Green v. Caulk, 16 Md. 556. However, its admission was not prejudicial. While it was received at the beginning of the trial, it turned out to be purely cumulative in nature.  Not only did the defendants admit in their answer the sale of many items of groceries, but, as stated above, other testimony satisfactorily established the fact that the operation conducted on the 5500 square foot area resembled closely that of a super market.  Under these circumstances, the error was harmless.

   The appellants next contend that Sun Ray had the right under its lease to sell groceries normally sold in a drugstore and it had a further right to grant that privilege to its sub-lessee, Home Utilities; therefore, while claiming to have sold only items of groceries normally disposed of in drugstores, they should only have been enjoined from selling those items not "normally sold in a drugstore." We have already pointed out that the evidence establishes that groceries were being sold by Home Utilities that were not normally dispensed by drugstores; hence, it is unnecessary to pursue that particular claim further.

   If we assume, without deciding, that Sun Ray had the right[***10] under its lease to sell groceries normally sold in drugstores and had a further right to sub-lease, in good faith, its space with the privilege of selling such groceries, we are unable to conclude that the above described conduct of the parties to the lease between Schreiber and Shopping Plaza and the circumstances resulting therefrom were within the intention of the parties to that lease and Sun Ray, which was mentioned therein.  In the first place, it is very unusual that a drugstore would devote more than one-half its floor space to the purpose of disposing of groceries. In addition, it was obviously the intention of the parties that the provision for the selling of "groceries [*309] normally sold in a drugstore" was contemplated as being utilized in conjunction with the actual operation of a drugstore. Here, however, we find the operation of the 5500 square foot space completely severed from the conduct of the drugstore -- not only in the management but also from a physical point of view -- and, in reality, being conducted as a part of the store of Two Guys, Md., in direct and sharp competition with Schreiber.  The conduct of Two Guys, N. Y., and its subsidiaries, with their[***11] leases and sub-lease, shows an unfortunate and unwarranted attempt to avoid, evade and circumvent the agreement with Schreiber to the effect that it would have the exclusive right to sell particular items of groceries in the shopping center, subject to the right of Sun Ray to sell those usually sold in drugstores. The chancellor was clearly right in enjoining the operation as it was being conducted.  Schmidt v. Hershey, 154 Md. 302, 140 A. 363; Slice v. Carozza Properties, Inc., 215 Md. 357, 137 A. 2d 687.

   However, he "perpetually" enjoined and restrained them.  We think the injunction should be a final one for the length of the present lease with Schreiber or any extension thereof in its present form; consequently, we shall remand the case with the direction that the decree be modified to this extent.

   Cause remanded for the purpose of the passage of a decree not inconsistent with this opinion; the appellants to pay the costs. 

McGOWAN et al. v. STATE (Seven Appeals In One Record) 
No. 237, September Term, 1958
 
Court of Appeals of Maryland
 
220 Md. 117; 151 A.2d 156; 1959 Md. LEXIS 483; 37 Lab. Cas.(CCH) P65,483

 May  14, 1959, Decided

   SUBSEQUENT HISTORY: [***1]

   Petition for Appeal Filed, Supreme Court of United States, September 29, 1959.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  customarily, postponement, amusement, recreation, merchandise, regulation, Blue Laws, bathing beach, postpone, removal, bathhouse, saloon, criminal statute, opera house, discriminatory, intelligence, incidental, submarine, courtroom, newspaper, precision, dancing, stapler, answered, Fourteenth Amendments, abuse of discretion, criminal case, unconstitutionally vague, non-capital, accessory

COUNSEL: Melvin J. Sykes, with whom was Harry Silbert on the brief, for appellants.

   John Martin Jones, Jr., Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond and Horney, JJ.  Hammond, [***5]J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*120] [**157] Seven persons, convicted of making sales of merchandise forbidden on Sunday in Anne Arundel County, argue in their appeal that the trial court committed reversible error (1) in refusing to remove or postpone their trials; (2) in denying motions to dismiss the prosecutions based on the claims the Sunday Blue Law is unconstitutional (a) as violating the right of religious freedom guaranteed by the First and Fourteenth Amendments to the Constitution of the United States, (b) as discriminating arbitrarily in favor of certain sales and against others, and (c) as being vague and indefinite, all contrary to the Fourteenth Amendment and Articles 19 and 23 of the Maryland Declaration of Rights; and (3) in refusing to direct verdicts as to some of the accuseds after the evidence was in.

   Code (1957), Art. 27, deals with "Sabbath Breaking" in Sections 492 to 534. Section 492 prohibits "bodily labor" on Sunday throughout the State, "works of necessity and charity always excepted," as well as any "unlawful pastime or recreation." Section 521 prohibits throughout the State the [**158] sale, barter or gift on[***6] Sunday of any merchandise except tobacco, cigars, cigarettes, candy, sodas and soft drinks, ice cream, and other confectionery, milk, bread, fruits, gasoline, oil and greases, drugs, medicines and patent medicines, and newspapers and periodicals.  Section 522, also State-wide in operation, makes it unlawful to keep open or use on Sunday any "dancing saloon, opera house, tenpin alley, barber saloon or ball alley." Section 509 repeals pro tanto Sections 492, 521 and 522 in Anne Arundel County insofar as they prohibit there the operating of, or working at, any "bathing beach, bathhouse, amusement park, dancing saloon", and permits in the County on Sunday the "sale or selling of any novelties, souvenirs, accessories, or other merchandise essential to, or customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses, at retail, picnic groves, amusements, games, [*121]amusement rides, amusement devices, entertainments, shows * * *."

   For some time before September 1958 the Sunday laws had not been enforced regularly or vigorously in Anne Arundel County.  Then, because of complaints that a newly opened branch of an interstate chain of stores was flouting [***7]the law to a degree exceeding that considered reasonable by competitors, the Anne Arundel County police began and continued an extensive and non-discriminatory crackdown on forbidden Sunday sales.  The appellants, all employees of the new store, were arrested for, and charged with, selling merchandise on Sunday in violation of Section 521.

   Counsel for appellants, retained the day before the trial, asked Judge Michaelson in chambers on the morning of the trial for a postponement or removal of the trial.  They were told the motions would not be granted but that they would have to be made and denied in open court.  Then, in the courtroom in which the jury panel was seated, appellants requested removal of their trials from the Circuit because "there has been considerable agitation concerning these so-called Sunday Laws in this County," said they did not have the necessary affidavits prepared, and asked for a ruling on the motion as if the formalities had been complied with, and leave to file the motion and supporting newspaper clippings to show the prevailing sentiment of the community.  Leave was granted for the late filing of the motion and supporting data, and the removal was denied. [***8] The motion to postpone the case because of the late employment of counsel also was denied.  As to this the court said that some twenty-six days earlier he had told counsel then representing appellants that there would be no postponement and that the litigants could not now complain fairly of lack of time to make full and proper defense.  The court went on to say that, from what he had been told by prior counsel for appellants, the litigants "went from one lawyer to another and then finally to you gentlemen, who represent them today, primarily for the purpose of getting these cases postponed * * * and * * * that such tactics should not be sanctioned or approved by the Court, consequently, much as it regrets to do it, it will have to overrule the motion for a postponement."

   [*122] The appellants say it was an abuse of discretion for the trial judge not to grant either the motion for removal or the motion for postponement because, after he made the remarks he did in the presence of the prospective jurors, who were seated in the courtroom, they had to take a court trial or be tried by a prejudiced jury.  We find no prejudicial error.  It would appear from the record that the court[***9] had told counsel in chambers that he would deny both the removal and the postponement and that counsel, before they entered the courtroom, had decided to have the cases tried by the court because of the refusal to remove the case, not because of the refusal to postpone the trials, and not because of the court's remarks in the presence of the jury.

   A new panel of jurors was not requested, which could have been done if a jury [**159] trial had been wanted, because of what had been said by the court. In any event, the remarks of the court as to the reasons for refusing a postponement cannot reasonably be expected to have had the effect the appellants seek to give them.  They were no more than revelations of knowledge the judge had obtained officially from agents of the appellants during the progress of the case, and there is no reason to suppose that a jury chosen from the panel seated in the courtroom would have been influenced as to the guilt or innocence of the appellants by hearing the judge temperately say that they had attempted to postpone their trials.

   There is no indication in the record that community sentiment was aroused or adverse to Sunday sales or the appellants. [***10] If anything, the newspaper accounts of the new police enforcement of the Sunday laws were more sympathetic to the position of appellants than otherwise.

   It is settled that refusal to remove a non-capital criminal case is not subject to review by this Court except upon a showing of abuse of discretion. Piracci v. State, 207 Md. 499, 508-509. We find no such abuse in Judge Michaelson's refusal to remove or postpone the case.

   The appellants' argument that the Sunday Blue Laws are unconstitutional as violating the right of religious freedom has been answered many times by this and other courts, which have held that the basic purpose of such statutes, with their [*123] exceptions, is the civil establishment and regulation of a day of rest from work, not a law respecting the establishment of religion or prohibiting the free exercise thereof, and that the statutes do not offend the First and Fourteenth Amendments to the Constitution of the United States. Judefind v. State, 78 Md. 510; Levering v. Board of Park Com'rs, 134 Md. 48; People v. Friedman (N. Y.), 96 N. E. 2d 184, 186, and cases cited therein (appeal dismissed for want of a substantial federal question, [***11] 341 U.S. 907). We have been shown no reason why we should depart from these holdings.

   The argument of unconstitutionality on the ground of discrimination likewise has been answered before by the cases.  The legislative plan is plain.  It is to compel a day of rest from work, permitting only activities which are necessary or recreational.  There can be, and often are, sharp differences of opinion as to what is necessary and what is proper or preferred recreation, but the answers must be given by the legislature, and if they are not clearly arbitrary or oppressively discriminatory, the legislative choices must be sustained.  In Ness v. Baltimore, 162 Md. 529, 538, Chief Judge Bond, in upholding the Baltimore City ordinance permitting specified amusements, games and sports on Sunday afternoons and permitting certain retail sales on Sunday, said for the Court (in reference to alleged discriminations in the statute): "But what is tolerable and what intolerable in Sunday observance seems to be a question which cannot be fully answered by a process of reason.  It is to a large extent determined by the public conceptions of proper respect for the day, and these conceptions are the outcome[***12] of public sensibilities not based entirely upon any process of reasoning.  Regulations to conform to the public conceptions can, perhaps, be less easily shaped by logical reason than almost any other governmental regulations. The constitutional prohibitions stand ready to prevent a clearly arbitrary and oppressive discrimination.  * * * But the mere fact of inequality is not enough to invalidate a law, and the legislative body must be allowed a wide field of choice in determining what shall come within the class of permitted activities and what shall be excluded." See, too, Brown v. State, 177 Md. 321, and People v. Friedman, supra.

   [*124] [**160] Appellants say that the Anne Arundel exceptions to the state-wide law go beyond those sanctioned in the Ness case because they permit the operation of bathhouses, bathing beaches, amusement parks and related facilities, and the sale of articles customarily sold at or incidental to the operation of, these facilities, as well as the sale of alcoholic beverages, and the operation of slot machines, pinball machines, and bingo games.

   What is permitted all comes within the category of recreation, long recognized as a permissible[***13] Sunday activity.  That we might think more appropriate or wholesome forms of recreation could have been chosen by the Legislature is of no moment, if those that were (presumably as reflecting the prevailing sentiment of the community), are not arbitrarily discriminatory or oppressive.  We find the arguments of appellants on this point no more than the claim that the statutes are unwise, and, if they are right, this of itself does not make the law invalid.

   We come to the contention that the Anne Arundel County Sunday law is unconstitutionally vague because no merchant can know whether or not the article he sells on that day is a novelty, souvenir, accessory or piece of merchandise "essential to, or customarily sold at, or incidental to, the operation of" bathing beaches, bathhouses, amusement parks or dancing saloons. This argument is made on the premise that Sec. 509 broadens the exceptions of Sec. 521 throughout Anne Arundel County so that anything "customarily sold at" a bathing beach, bathhouse, amusement park or dancing saloon can be sold on Sunday anywhere in the County.  It may well be that the legislative intent in Sec. 509 was to permit the use and enjoyment by the public[***14] on Sunday of the specified places of recreation and to insure that enjoyment by allowing patrons to buy, on the spot, what they customarily could buy to use the facilities to the fullest.  We need not decide whether sales were intended to be limited to the places of amusement specifically allowed to operate on Sunday.  If we assume, as do the appellants, that the language of Sec. 509 is broad enough to permit sales anywhere in the County, we do not find Sec. 521, as so broadened by Sec. 509, unconstitutionally vague.

   [*125] A criminal statute must be sufficiently explicit to enable a person of ordinary intelligence to ascertain with a fair degree of precision what it prohibits and what conduct on his part will render him liable to its penalties, or it will affront the constitutional guarantees of due process.  But such a statute is not void for indefiniteness merely because it exacts the burden of rightly estimating a matter of degree, or because juries may differ in their judgments in cases brought under it on the same state of facts.  State v. Magaha, 182 Md. 122, 125. See also Ruark v. Engineers' Union, 157 Md. 576, 583, et seq., and Glickfield v. State, 203[***15] Md. 400, 404. Section 509 clearly informs those who read it as to the type of articles that may be sold on Sunday in Anne Arundel County.  We think that a person of ordinary intelligence could know with a fair degree of precision what he could or could not sell.

   As the Supreme Court has noted, a statute is not to be condemned because there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls.  United States v. Petrillo, 332 U.S. 1, 7, 91 L. Ed. 1877 (there the statute, upheld against the defense of unconstitutional vagueness, made it a criminal offense to coerce a radio broadcaster to employ, or agree to employ, any persons in excess of the number needed to perform actual services).  In Boyce Motor Lines v. United States, 342 U.S. 337, 339, 340, 96 L. Ed. 367, 370, 371, there was involved the regulation of the Interstate Commerce Commission, authorized by 18 U.S.C., Sec. 835, that required a driver of an [**161] interstate motor vehicle, transporting explosive or inflammable substances, to avoid "so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested [***16]thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings." The Supreme Court said, treating the regulation as a criminal statute: "* * * no more than a reasonable degree of certainty can be demanded.  Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." In Sproles v. Binford, 286 U.S. 374, 393, 76 L. Ed. 1167, 1182, the [*126] words in a criminal statute "shortest practicable route" were held not too vague to be unconstitutional.

   The court should have directed verdicts for them, say five of the appellants. One sold a toy submarine and four sold staplers. It is argued that the submarine is "merchandise" and the staplers "accessories" that are "customarily sold at" a bathing beach. There was no error in refusing to direct the verdicts.  It is not so clear that these articles are customarily sold at a bathing beach that the court could so rule as a matter of law.  It was for the trier of fact to decide whether the submarine and the stapler had been excepted by the statute or not. Callan v. State, 156 Md. 459, [***17] 466, 467. There the accused was convicted of running an "opera house" on Sunday.  He claimed reversible error in the refusal of the trial court to permit him to produce a witness to testify "as to what is an opera house" in support of his contention that his business, that of showing motion pictures, was not within the meaning of that term.  This Court rejected that contention on the ground that what constituted an opera house was a question to be decided by the jury on the basis of "ordinary experience."

   The judgments will be affirmed.

   Judgments affirmed, with costs. 

STANDARD AMERICAN HOMES, INC. v. PASADENA BUILDING COMPANY 
No. 110, September Term, 1958
 
Court of Appeals of Maryland
 
218 Md. 619; 147 A.2d 729; 1959 Md. LEXIS 313

 January  22, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed, the appellant to pay the costs.

CORE TERMS:  builder, demurrer, chancellor, plat, vague, mortgage, specific performance, Maryland Rule, sale of real estate, ambiguity, specifically enforced, agreement of sale, purchase money mortgage, appendix, amend, unenforceable, enforceable, residential, marketable, hardtop, written statement, rate of interest, failed to comply, order sustaining, monetary loss, discretionary, alteration, relocation, ambiguous, saleable

COUNSEL: Malcolm B. Smith, with whom was Marvin I. Anderson on the brief, for the appellant.

   J. Calvin Carney for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*621] [**731] Standard American Homes, Inc., (Standard Homes or the builder) filed a bill in the Circuit Court for Anne Arundel County against the Pasadena Building Company (Pasadena Company or the owner) seeking the specific performance of an agreement for the sale of real estate. The chancellor[***5] sustained a demurrer to the bill without leave to amend, and Standard Homes appealed.

   On January 7, 1957, the parties, having recited that the Pasadena Company was the owner of two tracts of land, one on the Ritchie Highway in Pasadena consisting of approximately forty acres of land known as Dudley Acres, and the other on Forest Avenue in Dorsey divided into seventeen lots known as Lennox Park; that Standard Homes had completed certain engineering and subdivision work on both [*622] tracts and had had the tracts "site approved" by the Veterans' Administration; and that Standard Homes desired to purchase the lots in both tracts for the purpose of development in the normal course of its business as a builder and developer, entered into an agreement of sale wherein, in consideration of $500 paid by Standard Homes to the Pasadena Company, the latter agreed substantially as follows:
 
1 -- To grant and convey unto the builder "all the good marketable residential lots" in Dudley Acres for $850 each and in Lennox Park for $800 each, as shown on attached plats.
2 -- To release to the builder the first six lots in each development without payment of the purchase price and take[***6] in lieu thereof such purchase money mortgage as will "allow the builder to obtain a construction mortgage."
3 -- To release all subsequent lots upon the payment of $500 and take a mortgage for the balance of the purchase price "similar to the above described mortgage."
4 -- To install at the expense of the owner "a hardtop road from the Ritchie Highway to the rear of the commercial area of Dudley Acres * * * when or before" the builder has erected a sample house.
5 -- To execute all papers which may be required for the builder to meet the requirements of the county or the Veterans' Administration.
 
There were other covenants and agreements on the part of the builder which have no particular bearing on this controversy other than as is hereinafter referred to.

   Among other things, after reciting the ownership of Dudley Acres and Lennox Park by the Pasadena Company and the execution of the agreement, the bill alleged in effect that the builder had complied as far as it could go with the terms of the agreement.  It was also specially asserted that certain of the lots had been conveyed to it "by way of part performance," that it had proceeded to promote and develop for sale[***7] -- pending construction of dwellings -- all of the lots in Dudley Acres, and that it had expended much time, effort and [*623] money in connection with the performance of the agreement by conducting engineering studies, obtaining commitments for financing and complying with county, state and federal regulations.

   The bill further alleged that the owner had failed to comply with that part of the agreement requiring the execution of all papers and documents necessary to comply with the county ordinance and regulations pertaining to subdivisions, and that the owner had refused to comply with the terms of the agreement and "other promises therein contained," thereby precluding the builder from proceeding with its development and construction plans.  Standard Homes also claimed that it had suffered, and would continue to suffer, monetary loss and damage, and asserted that it was able and willing to continue to perform its part of the agreement.

   [**732] In addition to the reasons formerly assigned for demurring before the adoption of the Maryland Rules, the demurrer, as Rules 373 and 345 require, states in detail the questions of law or insufficiency of substance upon which the[***8] demurrer is founded.

   Neither the plat of Dudley Acres, referred to in the agreement and in the bill as being attached to the agreement, nor the recorded plat of Dudley Acres, referred to in the bill as being attached to the bill, was made a part of the appellant's [Standard Homes'] appendix, but both were appended to the appellee's [Pasadena Company's] brief.  Apparently the plat of Lennox Park, referred to in the agreement as being attached thereto, was not so attached to either the agreement or the bill.  Nor is it included in the transcript of record.  Because the appellant failed to comply with Maryland Rule 828 c 2, requiring delivery to the appellee of a written statement of the parts of the record the appellant proposed to include in the printed extract, and particularly because the plats therein referred to were not made a part of the appellant's appendix, the appellee moved to dismiss this appeal.  However, since the appellee filed copies of the plats with his brief and it does not appear he was prejudiced, we shall overrule the motion and assess the costs thereof to the appellant regardless of the outcome of this appeal.  Klein v. Dougherty, [*624] 200 Md. 22, [***9]87 A. 2d 821 (1952). See also Maryland Rule 828 i.

   At the argument on the demurrer counsel agreed that the phrase "all the good marketable residential lots" referred to whether the lots could be sold and not to the title.  It was also conceded that the relocation of the proposed hardtop road, as it originally appeared on the recorded plat filed with the bill, to conform with the location of the road, as it is delineated on the plat attached to the agreement of sale, resulted in a major change in the shape and location of some of the lots.  The chancellor -- (1) because he was unable to determine whether a lot was saleable as a residential lot, (2) because the relocation of the road was a departure not contemplated by the terms of the agreement, (3) because the agreement did not state the length of time the mortgage was to run, or how it was to be repaid, or the rate of the interest thereon, and (4) because Standard Homes had an adequate remedy at law -- sustained the demurrer and dismissed the bill.

   Standard Homes contends that the chancellor should have afforded it an opportunity to avoid questions of vagueness and uncertainty and to explain any ambiguity in the agreement by extraneous[***10] evidence; that in lieu of dismissal because the agreement was not specifically enforceable, the chancellor should have granted other relief; and that the action of the chancellor in sustaining the demurrer and dismissing the bill without leave to amend constituted an abuse of judicial discretion.  The Pasadena Company countered by claiming that the agreement of sale was vague and uncertain; that the change in the location of the hardtop road created another ambiguity in the terms of the agreement; and that there was an adequate remedy at law.

   (i). Right to Amend.

   The quick answer to the builder's first and third contentions is that permission to amend under the circumstances in this case was discretionary, not mandatory.  Furthermore, the record shows that no petition to amend was ever filed.  Indeed, it was conceded at the argument that leave to amend had not been requested.  Whenever a demurrer to a bill or [*625] other pleading is sustained, an amendment may be allowed by the court in its order sustaining the demurrer without the necessity of a motion or petition therefor, but whether an amendment shall be allowed is always within the sound discretion of the court. Maryland[***11] Rule 320 d 1 (e).  However, if seasonable application is made therefor, a court will ordinarily grant leave to amend at any time before a final order is entered so that a case may be tried on its merits.  [**733] Rule 320 a 1, 320 c 1, 320 d 1 (b).  Since Standard Homes failed to comply with the available rules to effect an appropriate amendment, it would serve no purpose to consider here what it could have shown had it been afforded an opportunity to present evidence with respect to what constituted a saleable residential lot, the alleged part performance of the agreement and the conceded relocation of the hardtop road.  On the demurrer, the chancellor could consider only such facts as had then been properly pleaded.  It was those facts, which the demurrer admitted, and no other, that were challenged as to their legal sufficiency to constitute a cause of action.  See Furman v. Lanahan, 159 Md. 1, 149 A. 465 (1930).

   (ii). Enforceability of Agreement.

   We think the chancellor was clearly right when he sustained the demurrer because the agreement of sale was so vague and uncertain that it could not be specifically enforced. That an agreement for the sale of real estate must [***12]be definite and certain by its terms, and free from all ambiguity, has been decided by this Court time and time again.  See Globe Home Impvt. Co. v. Brothers, 204 Md. 73, 102 A. 2d 748 (1954); Shriver v. Seiss, 49 Md. 384 (1878). Cf. Trotter v. Lewis, 185 Md. 528, 45 A. 2d 329 (1946).

   It is apparent -- indeed the builder concedes -- that the agreement sought to be specifically enforced in this case is a good example of how not to draw contracts for the sale of real estate where the terms and provisions to be expressed therein are other than those usually found in a good printed form.  In fact the instrument the chancellor was asked to enforce appears to be no more than an informal "working" agreement intended for temporary use.  This fact is clearly demonstrated by the omission from the agreement of any positive [*626]reference to a time for performance.  At one point it is recited that the development is to proceed "in the course of [the] normal business as builder and developer," whatever that may mean.  At another point, there was no reference to time other than the builder was "to proceed with haste and diligence in whatever processes * * * may be required[***13] to start the development known as Dudley Acres." (Emphasis supplied).  That the "normal course of business" may have meant a long time is suggested by the statement in the last paragraph of the agreement to the effect that "Lennox Park is to be developed at a later date." (Emphasis supplied).

   Specifically, the term "good and marketable residential lots," even though it applied to saleability and not to title, is still vague, uncertain and ambiguous. To determine which lots were saleable and which were not would have required the chancellor to formulate a method of making that determination, and this he was without authority to do.  Brown v. Summerfield, 153 Md. 356, 138 A. 242 (1927); Snodgrass v. Stubbs, 189 Md. 28, 54 A. 2d 338 (1947).

   The terms of the agreement relating to the purchase money mortgage are also vague and uncertain.  An agreement of sale which provides for the execution of a mortgage in lieu of a part or all of the purchase money paid for a building lot and states that the mortgage shall "be placed in such a manner as would allow the builder to obtain a construction mortgage for the erection of [a] house on [the] lot," without more, is not specifically[***14] enforceable. In this instance none of the terms usually specified -- time, mode and terms of payment, including rate of interest -- are even mentioned.  In Smith v. Biddle, 188 Md. 315, 52 A. 2d 473 (1947), it was held that a contract which did not state how long a mortgage was to run or what rate of interest it was to draw was not enforceable. In Applestein v. Royal Realty Corp., 180 Md. 274, 23 A. 2d 684 (1942), the contract was held unenforceable on demurrer because the maturity date was ambiguous. Cf. Caplan v. Buckner, 123 Md. 590, [**734] 91 A. 481 (1914). See also Moore v. Modern Improvement Ass'n, 190 Md. 39, 57 A. 2d 316 (1948); Gibbs v. Meredith, 187 Md. 566, 51 A. 2d 77 (1947); Bond v. Weller, 141 Md. 8, 118 A. 142 (1922); [*627] Tarses v. Miller Fruit & Produce Co., 155 Md. 448, 142 A. 522 (1928); Realty Improvement Co. v. Unger, 141 Md. 658, 119 A. 450 (1922). Also cf. Harris v. Kirshner, 194 Md. 139, 70 A. 2d 47 (1949).

   Finally, there is little doubt that the alteration with a pencil of one of the plats to make it conform to the other plat produced such a state of ambiguity as to also render the agreement unenforceable. [***15] A determination of what was meant to be accomplished by the alteration could not be left to future settlement.  Moreover, the resulting change in the location and size of some of the lots was clearly a departure from the terms of the agreement and also made it too indefinite to be specifically enforced. See Beck v. Bernstein, 198 Md. 244, 81 A. 2d 608 (1951).

   (iii). Other Relief in Lieu of Performance.

   Whether the chancellor should have heard the case on its merits and granted some other form of relief under the general prayer in lieu of dismissal because the agreement was not specifically enforceable, has been complicated considerably by an allegation in the bill.  While it did not specifically claim damages therefor -- either in the alternative or otherwise -- the builder alleged in the seventh paragraph of the bill, as one of the reasons why it was entitled to specific performance, that it had "suffered monetary loss and damage, and [would] continue to suffer monetary loss, in that it [had] entered into various agreements * * * in connection with its plans for development, * * * that by reason of * * * delay, the [builder was] losing the normal return * * * [on] [***16] capital investments already made, and * * * [that the builder was] suffering other losses by reasons of the [owner's refusal to perform the agreement]."

   If the builder had not indicated that it was claiming monetary damages in addition to the relief "by way of compensation to the extent of money actually paid under the alleged contract, and the value of beneficial and lasting improvements [Miller, op. cit., supra, § 672]," we would have no difficulty in deciding that the chancellor should have retained the bill -- under the precedent established by Green v. Drummond, 31 Md. 71 [*628] (1869), and subsequent cases such as Girault v. Adams, 61 Md. 1 (1883); Chamberlain v. Preston, 170 Md. 1, 182 A. 579 (1936); Wiley v. Wiley, 115 Md. 646, 81 A. 180 (1911); and Boehm v. Boehm, 182 Md. 254, 34 A. 2d 447 (1943) n1 -- for the purpose of decreeing repayment of the initial $500 deposit and the cancellation of the deed and purchase money mortgage, which were apparently executed on the faith of the unenforceable agreement.

n1 Cf. Ward v. Newbold, infra, and Davis v. Winter, 168 Md. 613, 178 A. 604 (1935).

[***17]
 
   Or, if the builder had joined its claim against the owner for monetary damages, (other than its claim for a refund on the initial deposit), with its claim for specific performance either as an independent or an alternative claim, which it clearly had a right to do under the provisions of Maryland Rule 313 a, we also would have no difficulty in deciding that the chancellor should have retained the bill for the purpose of hearing and determining the merits of all of the issues posed by the pleadings.  See Moore v. McAllister, 216 Md. 497, 141 A. 2d 176 (1958). See also Ward v. Newbold, 115 Md. 689, 81 A. 793 (1911).

   Under the circumstances in this case, since it is apparent that the builder may claim damages other than those it could have been allowed in this proceeding but for the intimation that it had other claims for damages not yet sued for, we think we should affirm the order of the [**735] chancellor in its entirety and afford the builder an opportunity to seek its remedy, if any, in an action at law.

   Order affirmed, the appellant to pay the costs. 

McGARVEY v. SOUTHERN MUNICIPAL CORPORATION et al. 
No. 97, September Term, 1958
 
Court of Appeals of Maryland
 
218 Md. 591; 147 A.2d 725; 1959 Md. LEXIS 308

 January  21, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Order affirmed, the costs to be paid by the appellant.

CORE TERMS:  tax sale, feet, advertisement, foreclosure, notice, square, block, plat, final decree, foreclosure proceedings, dimensions, roll, right of redemption, invalidity, decree, irregularities, foreclosing, designate, foreclosure suit, immaterial, tax roll, misdescription, description of property, decree of foreclosure, application to reopen, suit to foreclose, question of jurisdiction, burden of establishing, jurisdiction to enter, equity of redemption

COUNSEL: W. Harvey Beardmore, with whom were Rouse and Morton on the brief, for appellant.

   C. Maurice Weidemeyer for appellee, Southern Municipal Corporation.

   Morris Turk for appellees, Mary M. Young and Roger M. Young.

JUDGES: Brune, C. J., and Henderson, Prescott and Horney, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*593] [**726] The appellant, Helen E. McGarvey, had been the owner of certain real estate in Anne Arundel County.  She appeals from an order of the Circuit Court for that County dismissing her petition to set aside a final decree against her in a tax foreclosure suit. The appellees are Southern Municipal Corporation (Southern) and Mary M. and Roger M. Young.  Southern had purchased a tax sale certificate covering the property here involved and in due time had[***5] filed its suit to foreclose the appellant's equity of redemption therein, had obtained a final decree of foreclosure and had obtained title to the property pursuant thereto.  The Youngs purchased it from Southern.

    The appellant's contention is that the description of the property in the tax sale notice was invalid and that the Circuit Court was therefore without jurisdiction to enter a decree foreclosing the appellant's equity of redemption. This attack, in terms, is directed against the sufficiency of the description in the tax sale notice and not against the description given in the foreclosure proceedings. A defect in the description in the tax sale notice may be wholly immaterial [*594] after foreclosure (Thomas v. Kolker, 195 Md. 470, 474, 73 A. 2d 886), and tax sales have been upheld against such attacks in Oppenheimer v. Micbar Co., 192 Md. 192, 63 A. 2d 765, as well as in Thomas v. Kolker, supra, and against attacks based upon other alleged [**727] irregularities pertaining to tax sale proceedings, as in James v. Zantzinger, 202 Md. 109, 96 A. 2d 10, and in Sanchez v. James, 209 Md. 266, 120 A. 2d 836. See also Code (1957), Article 81, Section[***6] 109, which requires any alleged invalidity of the tax, of the proceedings to sell, or of the sale, to be set up specifically by answer in the foreclosure suit and places the burden of establishing any such invalidity upon the defendant.  Section 113 of the same Article provides that no application to reopen any final decree rendered under the Tax Sales Law shall be entertained "except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose." Of course, until such a decree is entered the delinquent taxpayer still has his right of redemption. Code (1957), Article 81, Sections 92-94.

   In Oppenheimer v. Micbar Co., supra, it was said: "As the agreed statement of facts shows that a decree has been signed foreclosing all rights of redemption in the lots, no one claiming under the original owners can attack the tax sale and the appellee can convey an absolute and indefeasible title to the property." Since the alleged defects in the description in the tax sale notice in the instant case, in our estimation, amount at the most to mere irregularities, the order here appealed from should be affirmed on the basis of the appellant's petition and the statutes[***7] and cases above cited.  We do not reach the question as to whether or not a complete failure to describe the property or a misdescription of it in the tax sale notice might be a virtual nullity and bar the application of Section 113 of Article 81 of the Code (1957). 

   In Holland v. Billingsley, 208 Md. 635, 119 A. 2d 380, a decree of foreclosure in a tax case was set aside on two grounds: one, the non-joinder of parties required by the statute to be joined; the other, a faulty description of property in the tax sale advertisement which was so inadequate as to fail to identify any property with reasonable certainty, [*595] and which differed somewhat from the description on the tax roll. As was pointed out in Thomas v. Hardisty, 217 Md. 523, 533, 143 A. 2d 618, neither Oppenheimer v. Micbar Co. nor Thomas v. Kolker, supra, both of which were decided under substantially the present law, n1 were cited in Holland v. Billingsley, supra. In Thomas v. Hardisty, the misdescription of the property there held fatal was (as the majority opinion noted) apparently the same in the foreclosure proceeding as in the tax sale advertisement. The property was misdescribed[***8] as located in one Election District when actually it was in another.

n1 Ch. 540 of the Acts of 1941 made a great change in the law relating to titles acquired through tax foreclosure sales in the City of Baltimore, and Ch. 761 of the Acts of 1943 effected a like change on a statewide basis.  Cases dealing with the effect of irregularities in proceedings prior to foreclosure which were decided on the law as it stood prior to these enactments may no longer be applicable.  See Judge Hammond's concurring opinion in Thomas v. Hardisty, supra, and cases therein cited.

   Even if we assume that the appellant's petition properly raises a question of jurisdiction in the foreclosure case, we think that the description of the property was adequate.  As was said in Holland v. Billingsley (208 Md. at 641): "The general rule is that the advertisement of a tax sale must describe with reasonable certainty the property to be sold, so that from an examination of the foreclosure proceedings a person of ordinary intelligence[***9] can locate the property sought to be foreclosed.  * * * The property should be so described as to admit of its identification by recourse to official records or at least by some means which may be referred to as common or general knowledge."

   The tax rolls described the property in question as

   "Lot 1 SQ 2 & Imp. [**728] Fair Haven 41.02 X 135 Gar -- 17."
 
(A tax receipt suggests that "Gar -- 17" refers to Garbage Collection District No. 17.)

   The tax sale notice was in this form:

   "8 -- 9407 McGarvey, Helen E. -- Lot 1 Sq. 2 & [*596] Imp. 41.02 X 135 as shown on the plat of Fair Haven, Eighth District, A.A. Co. Assessment $3,465. Taxes, Interest & Costs $176.85."

   The description in the foreclosure suit is substantially the same:

   "Lot 1 Square 2 and improvements 41.02 X 135 as shown on the Plat of Fair Haven, Eighth Election District and assessed to Helen E. McGarvey".

   The objections raised to the description are: first, that there are two plats of Fair Haven among the land records of Anne Arundel County and the description does not specify on which plat the lot is shown; second, that one plat (of Section 1) does not designate squares or blocks[***10] as such, and the other (of Section 2) designates them as "blocks" not "squares"; and third, that the dimensions of the lot (even if intended to be expressed in feet) are inaccurate.

   In Thomas v. Hardisty, supra, we reviewed rather fully the statutory requirements relating to the description of property, and we shall not repeat here all that we said there.  Reasonable certainty of description is required, and the statute contemplates that ordinarily the rather brief descriptions contained in the tax rolls will be sufficient.  (See 217 Md. at 534.) This is true as to tax sale advertisements, tax certificates and foreclosure proceedings. Code (1957), Article 81, Sections 76 (f), 83, 102.  At times something more may be needed.

    Taking up the appellant's objections in the order stated, we think that no great difficulty would be encountered in determining which of the two plats of Fair Haven was intended to be referred to.  Helen E. McGarvey owned land in only one section, and lot 1 in block or square 2 in only one of the two sections (Section 2) is of a size approximating the dimensions stated.  Lot 1 in block or square 2 of Section 2 is a corner lot, the two most conspicuous dimensions [***11]of which are 41.03' and 134.66'.

   As to the second objection, the use of the word "square" instead of "block" seems to us quite immaterial. Apparently, [*597] prior to this suit, it also seemed immaterial to the appellant.  Her deed, which was offered in evidence, uses the word, "square", not "block", and the same term was used on the last tax bill which she paid.

   The third objection also seems unsustainable.  Doubtless it would have been better to have shown at least an abbreviation for the word "feet" on the tax rolls and in the descriptions; but we think that from common usage, such a notation as "41.02 X 135" in a tax roll description would be understood as referring to so many feet. It is true that the lot is actually five-sided and that none of its actual dimensions coincides exactly with either of those shown on the tax rolls. On the other hand, one side of the lot abutting on one street is 134.66 feet long; and another line, which takes off approximately at right angles from one end of the 134.66 foot line and roughly parallels the waterfront, is 41.03 feet in length.  The other long sideline is 128.22 feet. Along the rear of the property, a turn in the road seems[***12] to account for a change in direction of the rear property line.  One part is 28.48 feet long, the other 11.82 feet, making a total of 40.30.  (The change in direction is not sharp.) We think that the two conspicuous lines used to identify and describe the lot are satisfactory for the purpose, and that despite the inaccuracies of one one-hundredth of a foot (something less than 1/8 of an inch) in the length of one of the lines mentioned and of thirty-four one-hundredths of a foot (roughly 4 inches) in the length of the other, the property is described with reasonable certainty and with substantial accuracy.

   [**729] Furthermore, every one of the errors or omissions now complained of was apparent at least on the last tax bill which the appellant paid -- that for 1952.  It was incumbent upon her to see that the assessment records were correct.  Thomas v. Kolker, supra.

   We conclude that the defects here alleged in the description of the property in the tax sale advertisement afford no basis for challenging the jurisdiction of the Circuit Court to enter the foreclosure decree; and we are also of the opinion that even if the sufficiency of the description is properly open to review[***13] on the appellant's petition, the description of the [*598] property both in the tax sale advertisement and in the foreclosure proceedings is adequate.

   We find nothing in Section 577 or 581 of the Code of Public Local Laws of Anne Arundel County (which were cited by the appellant in oral argument, but not on the brief) which would lead us to a different result.

   Order affirmed, the costs to be paid by the appellant. 

ED. P. PHILLIPS et al., individually and trading as PHILLIPSMACHINERY AND TRACTOR COMPANY v. THE J. F. JOHNSON LUMBER COMPANY 
No. 58, September Term, 1958
 
Court of Appeals of Maryland
 
218 Md. 531; 147 A.2d 843; 1959 Md. LEXIS 299

 January  20, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  mortgage, chattel mortgage, loader, chattel, mortgagor, bulldozer, tractor, recorded, bill of sale, serial number, real estate, ring, personal property, deed, trust receipt, entruster, truck, aided, trust receipts, conditional contracts, pertaining, general rule, constructive notice, motor vehicles, duly recorded, third persons, third parties, machinery, corresponding, conversion

COUNSEL: John G. Wharton, with whom were Barton, Wilmer, Bramble & Penniman on the brief, for appellants.

   Marvin H. Anderson, with whom were Marvin I. Anderson and Anderson & Anderson [***3] on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*532] [**843] The J. F. Johnson Lumber Company (Johnson), the appellee, sued the appellants, trading as Phillips Machinery and Tractor Company (Phillips) for the conversion of a Terratrac Bulldozer loader, Model 30, upon which Johnson claimed to hold a chattel mortgage, duly recorded. The case was tried before the Circuit Court for Anne Arundel County, without a jury, and resulted in a verdict and judgment for Johnson for $1,200, the agreed value of the bulldozer at the time of the alleged conversion, plus interest and costs. Phillips appealed.

   The question presented is a narrow one -- the sufficiency of the description of the [**844] bulldozer in the chattel mortgage -- and it is not free of difficulty.

   There is no dispute as to the facts, many of which were stipulated.  In brief they are as follows: On August 3, 1955, Joseph E. Glover and wife executed a chattel mortgage to Johnson to secure an indebtedness in excess of $31,000, of which more than $21,000 remained unpaid at the time of the alleged[***4] conversion. The mortgage purported to cover several [*533] motor trucks and passenger motor vehicles as well as sundry equipment of various kinds, including drills, a sanding machine, various saws, an electric generator, an electric motor, a water pump, four wheelbarrows, two concrete mixers, several other items and the bone of contention in this suit, described in the mortgage as "1 -- Terratrac Bulldozer loader -- Mod. 30".  The motor vehicles (both the trucks and passenger cars) were described by make, type, year and serial number (and one truck apparently by motor number as well).  The remaining items, with perhaps one exception, were not described by serial numbers, though some of them probably had such numbers.  We are not, however, concerned with them.

   On May 21, 1956, Phillips sold to Joseph E. Glover an International Crawler Tractor under a conditional contract of sale and accepted as part payment thereon a Terratrac Bulldozer loader, Model 30.  This was the only piece of equipment of its kind owned by Mr. Glover at that time and, according to the testimony of one of his employees, the only one which he had owned since August, 1955.  The appellants asked him if it was[***5] free of encumbrances, and upon receiving an affirmative answer made no further investigation before accepting it in trade.  The loader has since been resold by Phillips.

   It is conceded that Phillips made no examination of the chattel records for the purpose of determining whether there was a lien upon the Terratrac Loader, and there is no question that the loader covered, or purportedly covered, by the mortgage is the same loader which was taken in trade by Phillips.  By stipulation of the parties the sole question to be decided in this case is the sufficiency of the description of the bulldozer loader contained in the recorded chattel mortgage to establish a lien in favor of the mortgagee, valid as against the claim of a subsequent bona fide purchaser.

   Under Code (1957), Article 21, Section 46 (Section 54 in the 1951 Code) a mortgage of personal property shall be executed, acknowledged and recorded in the same manner as a bill of sale; and under Section 42 of Article 21 of the 1957 Code (Section 50 in the 1951 Code), "[a]ny bill of sale of [*534] personal property shall be sufficient in form if it contains the names of the parties, the consideration, a description of the[***6] property conveyed, and be signed and sealed by the vendor, and dated." The vital words, so far as this case is concerned, are "a description of the property conveyed".

   Sections 42 and 46 of Article 21 of the 1957 Code and Section 5 thereof (as well as Sections 68, 77, 78 and 80) have as their source Chapter 154 of the Acts of 1856.  They are unchanged in substance (insofar as they are pertinent to this case) from the corresponding provisions of the Code of 1860, which were derived from the statute just cited; and these Sections of the present Article 21 are identical in terms with the corresponding Sections of the 1951 Code, which were in force when the transactions here involved took place.  Chapter 154 of the Acts of 1856 revised the laws with regard to conveyancing and dealt, inter alia, with deeds conveying real property, bills of sale of personal property and chattel mortgages. That statute set out various forms of conveyances, including general forms of a deed of real estate (§ 26), of a bill of sale (§ 124), and of a chattel mortgage (§ 137) and by companion sections (§§ 27, 125, 139, respectively) declared instruments executed in accordance with these statutory forms[***7] to be [**845] sufficient.  That Act also contained a specific Section (§ 24) setting forth the requirements of a valid deed conveying real estate, one of which was that it should contain "a description with reasonable certainty of the property therein conveyed." This was changed in form rather than substance in the Code of 1860, Article 24, Section 9, to "a description of the real estate sufficient to identify the same with reasonable certainty." This language continues in Section 5 of Article 21 of the 1957 Code. 

   Chapter 154 of the Acts of 1856 contained no counterpart of § 24, supra, as to deeds setting forth the requirements of a valid bill of sale or of a valid chattel mortgage. However, the draftsmen of the Code of 1860, (which was enacted by Chapter 1 of the Acts of 1860 "in lieu of and as a substitute for all the Public General Laws and the Public Local Laws, heretofore passed by the Legislature of Maryland"), supplied such a counterpart through Section 41 of Article 24 [*535] as to bills of sale and through Section 47 as to chattel mortgages. Section 41 put together the several elements contained in the form of a bill of sale given in § 124 of Chapter 154[***8] of the Acts of 1856 and the validating provision contained in § 125 of that statute.  These provisions of §§ 124 and 125 corresponded closely to those of § 137 and § 139, supra. Section 47, instead of making a similar combination of §§ 137 and 139, simply provided that chattel mortgages should be executed, acknowledged and recorded as bills of sale.  The provisions of these Sections have been carried forward without change in text in subsequent Codes. n1

n1 The forms of conveyances set out in §§ 26, 124 and 137 of Ch. 154 of the Acts of 1856 were codified in Secs. 52, 61 and 64 of Art. 24 of the Code of 1860; and an omnibus validating clause, Sec. 66 of that Article embraced corresponding provisions of §§ 27, 125 and 139 of Ch. 154 of the Acts of 1856. These provisions are now contained in Secs. 68, 77, 78 and 80 of Art. 21 of the 1957 Code.

   Notwithstanding the historical difference in origin and the difference in text between Sections 5 and 42 of Article 21 of the Code (1957), the description required[***9] by the latter Section has been construed as substantially the equivalent of that required by the former.  Thus, in State, Use of Horsey v. Maryland Casualty Co., 164 Md. 69, 163 A. 856, this Court said (164 Md., at 76): "[U]nless there is a description sufficient to identify the subject-matter intended to be granted with reasonable certainty, according to the nature of the subject, the bill of sale is defective, and title does not pass." That case involved a bill of sale which was held to be an equitable mortgage, and the description therein contained was held to be insufficient.  In support of the rule quoted, Judge Parke, writing for the Court, cited Code [1924], Article 21, Sections 45, 44 (Sections 42, 41 of the 1957 Edition) and Fersner v. Bradley, 87 Md. 488, 492, 493, 40 A. 58, involving a bill of sale.  He also referred to Berry v. Derwart, 55 Md. 66, 72, and Schaidt v. Blaul, 66 Md. 141, 144, 6 A. 669, both of which involved title to real estate. The fatal defect in the deed in the Berry case was in the description of the property, which did not specify which side of a street certain lots lay on, and which did not purport to convey either [*536] [***10] all of the grantor's realty or all of his lots located on the particular street.  In the Schaidt case, a defect which was pointed out was the omission of the name of the grantee, but the case did not turn on it.  It was, however, the occasion for a dictum (66 Md. at 144) to the effect that the policy of the Registration Acts required that "every circumstance should appear on the face of the registry, which is necessary to the devolution of the title to real estate."

   In the Fersner case this Court held that a description of some property in a bill of sale simply as a half interest in eight horses located in a particular county, without [**846] any statement as to who owned the other half interest or any description of the horses by color, name or distinctive marks, was insufficient.  It was also held that the description of an interest in sundry vehicles set forth in the same instrument as "one-half interest in five single buggies, one-half interest in six double rigs * * *" was insufficient to pass title as against a judgment creditor of the vendor.  As to the vehicles it was said that "[I]f they could not be designated by the name of the manufacturer or particular[***11] style of vehicle, it could at least have been stated where they then were, who owned the other half, or some description given that would enable persons who might be interested to form some idea as to what particular vehicles were intended to be included." 87 Md. at 493.

   In the Horsey case it was held that the description of certain chattels in the bill of sale was so defective as to prevent title to the subject matter from passing even as between the immediate parties thereto.  Included with many smaller items described as "25 fenders; 7 wheels, 2 Truck Wheels;" etc., were listed "3 Tractors; * * * 1 Oakland Touring car; 1 Ford Touring car; 1 Ford Coupe."

   Phillips' contention is in essence that, in order to be valid as against third parties having only constructive notice, the description of mass-produced machinery or equipment in a chattel mortgage must contain the serial number (or its equivalent), if there is one.  Phillips relies upon the Fersner case, particularly the statements therein relating to the buggies, but naturally relies more strongly upon the following [*537] passage from the Horsey case, which immediately follows the description of the property[***12] there involved which is set forth above and which precedes the statement of the rule which we have already quoted from that case.  "While some of the smaller articles are not susceptible of any more accurate description than the place where they were located and in whose possession they were and would remain, the more important goods and chattels can be described with certainty.  Although there are numerous cash registers of the same make, and many automobiles and tractors of the same manufacture and design as those named in the bill of sale, yet every one may be positively identified by its motor or serial number, yet none is given.  No attempt is made to describe anything distinctly; * * *."

   Other language in the opinion, however, indicates that several factors contributed to the court's conclusion.  It was pointed out that the instrument contained no covenant or warranty of title nor was any mention made as to the premises, town, county or state where the articles were located.  It is also worthy of note that the vendor operated a garage and dealt in automobiles, automotive parts, and their accessories, and at least a portion of the items purported to be included under the bill[***13] of sale were subsequently disposed of in the ordinary course of business.  It is also apparent that not even the make of the tractors was stated, nor was there any description of them by model or type.

   In In re Oliver C. Putney Granite Corp., 14 F. Supp. 31 (D. C., Md.), a bankruptcy case, Judge Chesnut had occasion to consider the validity under Maryland law as a chattel mortgage of an instrument which contained the following description: "All the tools, machinery, appliances and other personal property now used by the mortgagor in the operation of its stone-cutting plant located upon the real estate hereinbefore described, including specifically one Electric Crane one Electrically driven Compressor one Gang Saw Carborundum Saw Polishing Mill Surfacing machine and Pneumatic tools." After referring to the Horsey case, Judge Chesnut said (p. 34): "In that case the very general description of the articles covered by the bill of sale or mortgage [*538] was held insufficient but principally, as I read [**847] the case, because there was not (as there is here) any designation of the location of the property or anything whatever to distinguish it from other articles of[***14] the same kind or class."

   * * *

   "But in this case the mortgage does specifically describe the location of the premises where the articles are to be found and, according to the testimony, those that still remained are of such nature that they can very readily be identified from the description in the mortgage."

   In a later bankruptcy case, In re Nickulas, 117 F. Supp. 590 (D. C. Md., affd. per curiam sub nom.  Tatelbaum v. Refrigeration Discount Corp., 212 F. 2d 877 (C. A., 4th)), Judge Chesnut had before him the Uniform Trust Receipts Act, as adopted in Maryland by Chapter 268 of the Acts of 1941, Code (1957) Article 95 1/2, Sections 1-20.  That statute does not require a trust receipt itself to be recorded, but does provide, among other things, for filing by the "entruster" with the State Tax Commission (under Section 13) of a statement of trust receipt financing signed by the "entruster" and by the "trustee" (as those terms are defined in Section 1), and that the form of such a statement (under Section 13 (2), shall show that the transactions to be financed under trust receipts are to be "the acquisition by the trustee * * * of goods of the following description: (coffee, [***15] silk, automobiles, or the like.)" To constitute a trust receipt under Section 2 there must be "a writing designating the goods, documents or instruments concerned." In the Nickulas case (which was more or less the converse of the instant case) two refrigerators were described by model number and serial number in a writing claimed to be a trust receipt, but the name of the manufacturer was not given.  Judge Chesnut, in a characteristically thorough opinion construing this then new Maryland Act, which had not been construed by this Court, looked for analogies in decisions relating to chattel mortgages and conditional contracts of sale, and held the description good, saying (pp. 594-595): "Such descriptions have generally been held sufficient where on their face or by satisfactory parol evidence, especially when coming from [*539] persons familiar with the particular trade, they [the goods in question] can be identified." He cited the following Maryland cases relating to chattel mortgages: Salabes v. Castelberg, 98 Md. 645, 57 A. 20; the Horsey case, supra; and U. S. Fire Insurance Co. v. Merrick, 171 Md. 476, 190 A. 335. He also cited the Putney Granite Corp.[***16] case, supra, and several cases pertaining to conditional contracts of sale which arose under the laws of other states.  Cf. In re Yost, 107 F. Supp. 432 (D. C., Md.), in which the entruster held no trust receipts at all as to some goods upon which he claimed a lien, and substitutions had occurred on trust receipts covering other goods.  The entruster was there held to have no lien.

   Not a great deal of aid can be derived from a comparison of the requirements of our statutes relating to the descriptions required in other more or less related statutes.  Perhaps the most detailed description required is to be found in a statute which is not a recording statute -- Code (1957), Article 66 1/2, Section 24 (2), which requires the serial number (where available) of a motor vehicle to be stated in an application for a certificate of title thereon or for registration thereof.  That Section does not appear applicable to the kind of equipment here involved.  (See Code (1957), Article 66 1/2, Sections 2 (55) and 23.) Section 66 of Article 21 of the Code (1957), relating to conditional contracts of sale, provides that a memorandum of such a contract, duly recorded, shall be sufficient, insofar[***17] as the description of the property is concerned, if it sets forth "a brief description of the goods and chattels therein mentioned." Code (1957), Article 83, Section 129, a part of the Retail Installment Sales Act, requires an installment sale agreement to "contain a clear description [**848] of the goods subject [thereto] * * *, which shall be sufficient to identify them readily." The next Section, Section 130, while generally prohibiting the acceptance by a buyer, sales finance company or holder from a buyer, or any surety or guarantor for the latter, of an instrument containing any blank spaces to be filled makes an exception under which "if an installment sale agreement contains, at the time of execution, a sufficient description of the goods pursuant to § 129, further serial numbers [*540] or other identifying marks on the goods may be inserted in the agreement upon the delivery of the goods."

   Perhaps the most that can be derived in the present case from the above comparison is that the reason for the more detailed description of the motor vehicles than of the bulldozer in Johnson's mortgage may have been the ready availability of such description on the registration[***18] cards pertaining to those vehicles.

   The Salabes case, supra, involved a duly recorded chattel mortgage on a diamond ring. The following description was held sufficient to impart constructive notice to one in the position of an innocent purchaser for value: "one single stone diamond ring, Tiffany setting, diamond weighing 7-8 1-64 karats, 6583 Iahs".  There were no identifying marks on the ring. This Court apparently felt that it would have been difficult to describe the ring more definitely than was done.  It clearly stated (98 Md. p. 653) that "if the appellant had examined the record he would have received such information as to put him on inquiry to further identify the ring." Further, in distinguishing the Fersner case, this Court said (at p. 654): "But in this case as the only description that could reasonably be expected was given, and that was ample to put persons dealing with the ring on inquiry, the mortgagees should not be made to suffer." The Court continued: "It is not pretended that the appellant was misled by the description that was given, * * *.  Any person of ordinary intelligence would be warned by the information given in the mortgage not to accept[***19] such a ring as is therein described from Linthicum [the appellee's mortgagor and the appellant's pledgor] and after all that is the great object in recording chattel mortgages."

   We fully agree with the statement in U. S. Fire Ins. Co. v. Merrick, supra (171 Md. 487) "that a general description may lead to controversy as to the articles intended to be granted in the mortgage, and the better practice is that such chattels be specifically described; * * *." However, something less than the best possible description may be sufficient.

   The nature of the property is, we think, a matter of importance in a case of this kind.  See State, Use of Horsey [*541] v. Maryland Casualty Co., supra, (164 Md. at 76) and the In re Oliver C. Putney Granite Corp. case, supra, at p. 34.  We may assume that the Horsey case supports the appellant's contention that a description of a cash register simply by make or of an automobile simply by make and general type is insufficient.  We may also assume that under that case a description reading merely "3 Tractors", without any description of make, type, model, horsepower, serial or motor number is insufficient.  That, however, is not[***20] the case we have here, nor, we may add, was the mortgagor here a dealer in bulldozers or tractors.

   We think that contractors' earthmoving equipment is more like farm machinery than ordinary automobiles or motor trucks and that decisions pertaining to such equipment are relevant.  A number of cases on the "Sufficiency of description of property, as against third persons, in chattel mortgage on farm equipment, machinery, implements, and the like" are collected in an annotation under that title in 32 A. L. R. 2d 929. The case which that annotation follows is Jackson City Bank & Trust Co. v. Blair, 333 Mich. 399, 53 N. W. 2d 493, 32 A. L. R. 2d [**849]920. In it the description "1 A-2 International Ensilage Harvester" in a recorded chattel mortgage was held to constitute constructive notice to a subsequent purchaser, even though the mortgagor in possession was a licensed dealer in such equipment.  The Michigan Supreme Court noted that the defendant purchasers had made no showing that the mortgagor was in possession of more than one harvester of identical description, or in any case, that a proper inquiry would not have revealed the identity of the machine they purchased.  A majority [***21]of the cases referred to in the above annotation are in accord with the Jackson City Bank case.

   In a number of cases the fact that an implement or vehicle was the only one of its kind owned by the mortgagor has been held to support the sufficiency of a description even though this fact is shown by extrinsic evidence.  See 14 C. J. S. Chattel Mortgages, § 59, and cases cited.  Also see United States v. Christensen, 50 F. Supp. 30 (D. C., Ill.) where the [*542] description "one tractor, Moline, 10-20 Farmall, condition good, year of manufacture, 1937" was held sufficient on this ground.

   We believe that equipment such as the bulldozer loader here involved falls under the general rules relating to the sufficiency of the description thereof in a chattel mortgage or bill of sale. Under that rule a description in a duly executed, acknowledged and recorded chattel mortgage is sufficient to bind third parties without actual notice if, having in mind the nature of the property, the description is such as to enable third persons, aided by inquiries which the mortgage itself suggests, to identify the property.  Salabes v. Castelberg; U. S. Fire Insurance Co. v. Merrick; [***22]  In re Oliver C. Putney Granite Corp.; In re Nickulas; all cited above; Jones on Chattel Mortgages and Conditional Sales (1933 Ed. and 1956 Supp.), §§ 54, 55; 10 Am. Jur., Chattel Mortgages, § 55, pp. 752-753.  We find no necessary inconsistency between this holding and the actual holding in the Horsey case when applied to the description of the tractors there involved, which, as noted, was simply "3 Tractors", without more.  In the instant case, we think that the description of the bulldozer loader as owned by the mortgagors and located in Anne Arundel County, and by make, type and model set forth in the mortgage, aided by reasonable inquiries suggested by that description, would have enabled a third party to identify that piece of equipment, which was the only one of its kind owned by the mortgagors.

   Accordingly, the judgment is affirmed.

   Judgment affirmed, with costs. 

BAILEY v. BAILEY 
No. 102, September Term, 1958
 
Court of Appeals of Maryland
 
218 Md. 527; 147 A.2d 747; 1959 Md. LEXIS 298

 January  19, 1959, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree reversed and case remanded for the passage of a decree not inconsistent with this opinion; appellant to pay the costs.

CORE TERMS:  alimony, chancellor, entireties, decree, inclusion, property owned, divorce, real estate owned, Maryland Rule, decree appealed, power to award, rental income, contemplates, objected, daughter, couple, admit

COUNSEL: George B. Woelfel for the appellant.

   Thomas J. Wohlgemuth for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*528] [**748] A husband appeals from an amended decree that, on the wife's bill for alimony, awarded her $50.00 a week, plus the husband's half of the net income from a dwelling owned by the entireties and leased to others.

   The[***3] husband does not deny that he must pay alimony and support for the couple's eighteen-year old daughter, but contests the amount awarded.  After a long hearing, the chancellor, on January 22, 1958, awarded alimony and support in the amount of $60.00 a week, plus the husband's share of the rent from the jointly owned property.  The wife had worked all during the twenty-four years of the marriage, but, because of illness, was not employed during the period of the court proceedings up to the first decree. Five days later, [*529] she took a position with a building association.  The husband petitioned for a reduction in the alimony and after another hearing, the chancellor, on March 15, 1958, passed the decree appealed from, reducing the weekly payments from $60.00 to $50.00.

    There is no doubt that the chancellor was without power to award the wife the husband's share of the rental income from the real estate owned by the entireties. Even in suits for divorce, the statute, Code 1957, Art. 16, Sec. 29, grants the equity courts power to deal with personal property only, not real property, and this is not a suit for divorce but one for alimony and support. "This being a suit for[***4] separate maintenance, and not covered by any statutory provision, there was therefore no power in the chancellor to transfer the property of either spouse to the other or to adjust the property rights of the parties." Brown v. Brown, 199 Md. 585, 591. To the same effect are Hull v. Hull, 201 Md. 225, 232; Brown v. Brown, 204 Md. 197, 210; Wardrop v. Wardrop, 211 Md. 14, 19. This is not a case where the court did no more than take into account the income from the property owned by the couple in fixing the amount of alimony, nor is it one where the court exercised general equity jurisdiction to appoint a receiver for, or require an accounting as to the income from, property owned by the entireties (there is a relevant discussion of these problems in Wardrop v. Wardrop, supra, at page 19, et seq., of 211 Md., and they were dealt with in Smith v. Smith, 211 Md. 366). There was [**749] error in the provision of the decree appealed from as to the property owned by the entireties.

   We think that the chancellor also was clearly wrong in awarding as much alimony as he did.  The husband's take-home income was a little over $100.00 a week, the wife's about $40.00[***5] a week.  Under the tests that have been reiterated in the cases, (such as Waters v. Waters, 191 Md. 436; Donigan v. Donigan, 208 Md. 511, 521; and Newmeyer v. Newmeyer, 216 Md. 431, 434), it is our judgment that an award of $35.00 a week would have been adequate and proper under the circumstances that were before the chancellor at the time of the second decree. If the situation changes, either [*530] as to the income of the husband or the wife, or the needs of the wife are less because the daughter becomes self-supporting or marries, or more because the wife cannot work, or for other reasons, there can always be an adjustment of the amount to be paid.

   While the record on appeal was being prepared, counsel for the husband objected to the inclusion of the testimony in the two hearings before the chancellor, saying that they dealt with the liability to pay and the husband had come to admit that the wife was entitled to alimony. He wrote counsel for the wife that unless it was stipulated that the testimony need not be included, he would ask this court to direct the wife to pay the costs of its inclusion. The testimony was included in the transcript and the husband[***6] has moved that we require the wife to pay its costs.  Maryland Rule 826 c 2 provides that the parties may stipulate, or, if they are unable to do so, the lower court may order that only such part of the testimony as is deemed necessary for the appeal may be included as a part of the record.  This section and Sec. e of the same rule make it plain that the lower court can control the matter if the parties are unable to agree.  Appellant admits that he did not ask the lower court to act as to the testimony as the rule contemplates. The motion is denied.

   Decree reversed and case remanded for the passage of a decree not inconsistent with this opinion; appellant to pay the costs. 

JEFFERSON v. STATE 
No. 64, September Term, 1958
 
Court of Appeals of Maryland
 
218 Md. 397; 147 A.2d 204; 1958 Md. LEXIS 543

 December  22, 1958, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County, sitting as a Juvenile Court; Michaelson, J.

DISPOSITION: Judgment reversed and case remanded, costs to be paid by the county commissioners of Anne Arundel County.

CORE TERMS:  juvenile, delinquency, sentence, contributing, prosecuting witness, perverted, motion to dismiss, sitting, adult, clerk, jurisdiction to try, agreed statement, transferred, encouraging, accomplice, forwarded, authorize, tending, criminal procedure, corroboration, stenographer, substituted, election, concedes, guilt, waive, contributing to delinquency, sexual act, stenographic transcript, statutory basis

COUNSEL: Leonard S. Freedman, with whom was Stanley J. Shapiro on the brief, for appellant.

   E. Clinton Bamberger, Jr., Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*399] [**205] The parents of a 14 year old boy complained to the police that the appellant, a school teacher 24 years of age, had committed an act of perversion with their child.  The appellant was interrogated by and gave a statement to the police, in which he denied the offense.  Thereafter, Sergeant Smith, of the Juvenile Unit of the Anne Arundel County Police Department, filed a petition in the Circuit Court for Anne Arundel County, [***5]sitting as a Juvenile Court, charging the appellant with the commission of certain wilful acts "contributing to, encouraging and tending to cause the conditions which brought said child within the jurisdiction of this court, that is to say: that he contributed to the delinquency of a minor," naming him, and praying the court to assume jurisdiction.  Summons was issued for the accused and the boy in question.  The matter came on for hearing before Judge Michaelson on January 9, 1958, the State being represented by the State's Attorney and the accused by counsel of his own selection.  At the conclusion of the hearing the trial court passed an order placing the accused in the custody of Spring Grove State Hospital "for psychological and psychiatric evaluation prior to passing sentence." This order was rescinded on March 6, 1958, and on the same date the court passed an order sentencing the appellant to the House of Correction for two years from the date of trial, and further ordering "that the said Louis A. Jefferson be transferred to Patuxent Institution for examination, treatment and a report, subject to the further order of this Court in the premises." The appeal is from that sentence[***6] and order, under Code (1957), Art. 26, sec. 65.  A recognizance bond was filed.

   [*400] The case presents some unusual features.  The appeal was entered by new counsel for the accused, who filed a petition in the lower court for extension of the time for transmitting the record to this Court, which was granted, alleging that no stenographic transcript of the trial had been made, and that the appellant and the State were attempting to prepare an agreed statement of facts.  In due course, such a statement was prepared, and signed by the presiding judge, the State's Attorney, the appellant and his new counsel. This included a summary, in narrative form, of the testimony of the prosecuting witness, the testimony of another boy, 16 years of age, the father of the second boy, and Sergeant Smith, as well as the testimony of the appellant, and testimony of the father of the prosecuting witness in rebuttal.  The statement does not disclose that any objections were made by the appellant's counsel at any point in the trial.  A copy of the statement made by the accused to the police was offered in evidence through the witness, Sergeant Smith.  The agreed statement of facts was forwarded[***7] to this Court, together with copies of the docket entries and other papers filed in the case.  [**206] Thereafter, the Attorney General obtained, and forwarded to this Court, a statement signed by Judge Michaelson, in which he certified that he was the presiding judge when the appellant "was found guilty of contributing to the delinquency of a minor." He further certified that the testimony of that hearing was not recorded, that neither the defendant nor his counsel requested that the testimony be recorded, and that no objections or motions were made in the course of the hearing, by either the appellant or his then counsel.

   The State filed a motion to dismiss the appeal, which was argued when the case was reached for hearing on the merits in this Court.  We reserved a ruling on the motion at that time.  The motion is based on the contention that in the absence of a transcript, particularly where such absence is due to the election of the appellant to dispense with one, this Court has no jurisdiction to entertain the appeal.  It is pointed out that under Rule 826 b of the Maryland Rules, an appeal to this Court "shall be heard on the original papers.  The term 'original papers' [***8] includes exhibits and the transcript [*401] of the testimony." But Rule 826 c 2 provides: "Instead of serving and filing a transcript of the testimony, the parties by written stipulation filed with the clerk of the lower court may, or upon order of the lower court shall file with the clerk of the lower court for inclusion in the record only such part of the transcript as the parties or the lower court may deem necessary for the appeal." Rule 826 e provides that approval of the lower court is not ordinarly required, "except as provided in sections c 2 or g of this Rule," but if any difference arises as to whether the record truly discloses what occurred in the lower court "the difference shall be submitted to and settled by the lower court and the record made to conform to the truth." Cf. Merchant v. State, 217 Md. 61, 64. Section g of the Rule provides that, under some circumstances at least, "the parties with the approval of the lower court may prepare and sign a statement of the case showing how the questions arose and were decided, and setting forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by this[***9] Court." Such statement shall supersede, "for the purposes of the appeal, all parts of the record other than the judgment from which the appeal is taken and any opinion of the lower court, * * *." See also Rule 828 g, dealing with an agreed "statement of undisputed facts", and authorizing summarization of disputed testimony, by stipulation, in the printed record extract.

   In the light of the Rules cited, we think it is clear that, when agreed to by the parties and approved by the lower court, the original transcript may be dispensed with.  Nor do we find anything in Rule 835 that would require a dismissal of an appeal under the circumstances.  We may assume that if no substituted record had been procured, there would have been nothing for us to review, and the appeal would have had to be dismissed.  The election of the accused to proceed without a stenographer might, in that situation, have been equivalent to a waiver of his right to a review of the evidence on appeal.  See Banks v. State, 203 Md. 488. The same rule was applied in Newark Trust Co. v. Trimble, 215 Md. 502, 506, where it was noted that there had been no [*402] attempt by the appellant to obtain an equivalent[***10] of the transcript, a problem which was rendered more difficult in that case by the retirement of the trial judge almost immediately after the hearing.  There was a strong intimation that a review might have been in order upon a substituted record approved by the trial court.  The fact that the appellant in the instant case made no effort to obtain a stenographer did not bar him from obtaining a substitute by agreement of the State and the trial judge.  The motion to dismiss is denied.

   It is clear that the Circuit Court, sitting as a Juvenile Court, had jurisdiction to try "any parent, guardian or any person [**207] over the age of 18 years for any wilful act or omission contributing to, encouraging or tending to cause any condition bringing a child within the jurisdiction of the court." Code (1957), Art. 26, sec. 53.  Under sec. 55, an adult found guilty under sec. 53 may be punished by fine or imprisonment not exceeding two years, or both.  The court may impose sentence, or suspend sentence and by order impose duties during a period of probation, and try the case without a jury unless a jury trial is elected.  Or the judge may waive jurisdiction so that such adult may be "otherwise[***11] dealt with according to law." The accused may, however, demand trial according to the usual criminal procedure, and in such case, the judge must waive jurisdiction.  There is nothing in the record to show that the accused demanded trial according to the usual criminal procedure. If he had been indicted for perverted practice under Code (1957), Art. 27, sec. 554, he might have been sentenced to a maximum of ten years, upon conviction.  The record shows that he was represented by counsel, and went to trial and took the stand on the charge of contributing to delinquency, without objection.  Cf. Cullings v. State, 205 Md. 22, 24.

   It is true that the docket entries do not show arraignment, plea, waiver of jury trial, or verdict by the court, although the sentence is shown, and the certification of the trial judge clearly imports that there was a finding of guilt. The court's jurisdiction over the subject matter and the person are clear, and we think the clerk's failure to make the appropriate [*403] entries is not fatal, particularly where, as here, the point is not urged in the brief of the appellant filed in this Court, and in fact, the brief concedes that "The appellant pleaded[***12] not guilty and was tried * * * [and] found guilty of the charge." Hence we do not reach the question whether a finding of guilt is implicit in a sentence. See note 69 A. L. R. 792. Cf. Glickman v. State , 190 Md. 516, 526. Obviously, the docket entries should be corrected, under the direction of the court.  Heath v. State, 198 Md. 455, 460; Weighorst v. State, 7 Md. 442, 450.

   The appellant's chief contention is that the prosecuting witness was an accomplice, and that there was legally insufficient testimony to corroborate his testimony.  We think there was corroboration of many of the circumstances testified to by the prosecuting witness, although not as to the perverted act itself.  But in any event, we think there was evidence that would support a finding that the prosecuting witness was not an accomplice, even if we assume, without deciding, that the rule requiring corroboration applies to a charge of this character.  Cf. Taylor v. State, 214 Md. 156, 160. Under the circumstances of the instant case, we think the prosecuting witness might fairly be regarded as a victim rather than a voluntary participant.  Taylor v. State, supra; Gregoire v. State, 211 Md. [***13] 514; Lusby v. State, 217 Md. 191; Saldiveri v. State, 217 Md. 412. We cannot find that the verdict was clearly erroneous under Rule 886.

   The appellant further contends that the court erred in admitting the testimony of the second boy as to a perverted act performed upon him by the accused on a previous occasion.  The short answer is that the testimony came in without objection, and the question is not properly before us.

   The final point urged by the appellant is that the court exceeded its authority in adding to the sentence the order transferring the appellant to the Patuxent Institution for examination, treatment and a report.  The State concedes that the judgment of the Juvenile Court, upon a finding that the appellant had contributed to the delinquency of a minor, would not authorize the institution of proceedings to declare [*404] him to be a defective delinquent, under Code (1957), Art. 31B, secs. 6 (a), and 14.  But the State contends that since under Code (1957), Art. 26, sec. 63, the [**208] Juvenile Court has authority to order the examination of any person within its jurisdiction "by a physician, psychiatrist or psychologist as designated by him," this[***14] authority would permit the utilization of the facilities of the Patuxent Institution, which is staffed by medical experts.  Moreover, the State argues that under Code (1957), Art. 31B, sec. 4 (c), the Board of Correction could have transferred the appellant from the House of Correction to Patuxent Institution.  We do not reach this last question, although it may be doubted whether that section has any application to persons who do not fall within any of the categories mentioned in sec. 6 (a), and could not therefore be examined for possible defective delinquency. Sec. 14 of Art. 31B provides: "Nothing in this article shall be construed to extend to or affect any case in a juvenile court * * *, or any person involved in such case, unless the juvenile court judge shall have waived jurisdiction in the case so that it may be heard and adjudicated in a regular criminal court." An adjudication of contributing to delinquency is not in terms or by necessary implication an adjudication of guilt of a sex crime involving disparity of age between an adult and a minor, under sec. 6 (a) (4), and sec. 14 would seem to forbid such a construction.  Patuxent Institution was set up to deal with the[***15] problem of defective delinquency as defined in sec. 5, and not as a mere diagnostic facility to aid the courts or other State institutions, or as a place for the treatment of persons exhibiting a propensity towards the activities mentioned in sec. 6, but who do not meet the prerequisites of the statute.  Its history was discussed in Eggleston v. State, 209 Md. 504, 514. We find nothing in the Article that would authorize a Juvenile Court to utilize it in cases where there is no statutory basis for an adjudication of defective delinquency, either before or after sentence. We think the court erred in passing the additional order in question, and we will remand the case so that it be deleted and the sentence to the House of Correction carried out, or that the court may pass such other or further order, [*405] under Code (1957), Art. 26, sec. 55, as may be deemed to be for the best interest of the appellant.  Rule 871 b.

   Judgment reversed and case remanded, costs to be paid by the county commissioners of Anne Arundel County. 

MERCHANT v. STATE 
No. 225, September Term, 1957
 
Court of Appeals of Maryland
 
217 Md. 61; 141 A.2d 487; 1958 Md. LEXIS 585

 May  21, 1958, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson and Evans, JJ.

DISPOSITION: Judgment affirmed.

CORE TERMS:  confession, easier, intercourse, prosecuting witness, defense counsel, inducement, Criminal Law, conform, knife, rape, sock, police officer, certification, hurt, generalization, stenographer, extract, trousers, pillow, bed, death sentence, triers of fact, tee shirt, forcible, admissibility, recollection, breakfast, repeated, supplied, wearing

COUNSEL: Noah A. Hillman and John Blondell for the appellant.

   Charles B. Reeves, Jr., Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, C. Osborne Duvall, State's Attorney for Anne Arundel County, and Clarence L. Johnson, Assistant State's Attorney, on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [***6]

   [*64] [**488] This appeal entered November 6, 1957, is from a judgment and death sentence imposed by the Circuit Court for Anne Arundel County, after a conviction of rape in a case tried by two judges of that Court, sitting without a jury.  On March 17, 1958, the State moved for an order to correct the record pursuant to Rule 827 of the Maryland Rules, and filed an affidavit of the State's Attorney in support of the motion.  The motion alleged that the appellant had included in his record extract the following testimony in cross-examination of one of the State's witnesses, Lieutenant Kinsey, a police officer:
 
   "55. Lieutenant, did you or Captain Wellham, to your knowledge, at any time state to the defendant why a statement was wanted?  A. We advised him that a statement would be easier in a court of law against him, and that was the only thing we mentioned to him.  56. You advised him that a statement by him would be used in a court of law against him, and that is the only thing you told him that you wanted the statement for?  A. Yes sir, now, he read the heading of the statement which we have at the heading of the statement." (Emphasis supplied).

   The supporting[***7] affidavit by the State's Attorney declared that he had no recollection that Lieutenant Kinsey used the word "easier"; that Judge Michaelson had made available to him the notes taken at the trial by Judge Michaelson; and that in these notes the Judge had paraphrased the statement of the witness as "we advised him that a statement would be used in court against him.  He read the heading of the statement." (Emphasis supplied).  The appellant filed an answer to the motion, supported by the affidavit of one of the defense counsel that he had a personal recollection that the testimony in question was as indicated in the record extract; and that the court stenographer had repeated into a phonographic instrument the testimony in question and transcribed it in [*65]writing up the record in the exact form indicated in the record extract.

   On March 31, 1958, we passed an order referring the matter back to the Circuit Court "for determination and settlement of the difference as to whether or not the disputed portion of the record (the answer to question 55 of the transcript) truly discloses what occurred in said court, and for certification by Judge Michaelson of his determination [**489] [***8] of that matter in order that the record may conform, or be made to conform, to the truth." Rule 826 e of the Maryland Rules provides that although it is not ordinarily necessary for the record on appeal to be approved by the lower court, "* * * if any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by the lower court and the record made to conform to the truth." Before the case was reached for argument in due course on April 15, 1958, Judge Michaelson filed in this Court a certificate in which he stated that he had had the court stenographer play the disc on which the testimony in question was recorded, that the exact word in controversy was so blurred that the court could not "distinguish or understand" it; that the stenographer could not say positively that she had made an accurate recording of the word, but that it "sounded like 'easier'" to her. Judge Michaelson further certified that he had consulted his own notes, written in long-hand at the time of the trial, and that he had understood and written the word "used" in the answer to the question.  Judge Evans also stated that it was his[***9] recollection that no such word as "easier" was used by the witness in answer to the question.  The lower court thereupon determined that the correct word was "used", as stated in the affidavit of the State's Attorney, and certified that the record would conform to the truth by substitution of that word.  The certificate was signed by both the judges who presided at the trial.

   Rule 826 e seems to contemplate that such a certification by the presiding judge, or judges, should be final and controlling.  But if we assume, without deciding, that it is not, we may point out that not only was the word "used" understood by both of the trial judges and the State's Attorney, [*66] but that defense counsel repeated the answer verbatim in his next question, containing the word "used", and the witness agreed to the correctness of the repetition.  Again, defense counsel at a later point in the trial referred to testimony (which he attributed to Captain Wellham) that the accused had been told that his statement "was going to be used against him in court." Had the witness spoken the word "easier", it is almost inconceivable that defense counsel would have failed to refer to or rely upon[***10] it in support of their objection to the admissibility of the statement obtained from the accused, or at some point in the subsequent proceedings, and the record does not show any such reference.  Even if the word "easier" had been spoken by the witness, and not heard by the triers of fact, it might be argued that failure to call the point to the court's attention was a waiver of the objection on that ground. But in any event the fact certified by the trial judges is clearly supported by the intrinsic and extrinsic evidence, and it would appear that the court stenographer either did not correctly understand the witness in the first instance or incorrectly transcribed the blurred word she recorded.  We shall, therefore, deal with the record as corrected.

   The only questions raised on appeal are the admissibility of the purported confession, and the sufficiency of the evidence as to the identity of the accused.  The questions raised seem to require a rather detailed statement of the evidence.  The prosecuting witness is a married woman, with two children, aged ten and twelve, who lives with her husband in the outskirts of Glen Burnie. On the morning of July 25, 1957, she cooked breakfast[***11] for her husband and he left the house at his accustomed time, 5:30 A. M.  At about 6:00 A. M. she went back to bed and fell asleep.  The next thing she knew, a man jumped on top of her in the bed. He had a knife in his hand and threatened to kill her if she made any noise.  He had part of his face, from the nose down, covered with a pillow slip.  She testified she had left a clean pillow slip on a living room chair.  He pulled up her gown and had intercourse with her.  The witness identified as her own a knife which was subsequently recovered from a cupboard in the house where the accused was arrested.  It had [*67] a [**490] black, burned point, as her children had burned it making plastic airplanes. She had used the knife in preparing breakfast on the morning in question, and left it lying on the kitchen cabinet.  After intercourse began, the witness testified she kept struggling and protesting.  His organ penetrated her body. At one point the pillow slip came down under his nose.  He kept the knife in his hand and shoved it into her neck at one time.  After completing the sexual act, he jumped off the bed and "said he wanted five dollars for bus fare." He was wearing[***12] a white tee shirt and khaki pants.  She did not see any underwear.  He wore dark blue socks with white stripes "with a little speck in it." He did not have shoes on, and she saw a hole at the big toe of his right sock. He told her he had left his shoes in the woods.  She got $5.00 from her wallet, and had $6.00 left.  He took all the money.  One of the children started sneezing, and he ran out of the door into the woods.  After fixing the children's breakfast, she tried to telephone her husband, but could not reach him.  She went to her sister's house next door and told her what had happened. The sister testified that she was "crying" and "very white".  It was then about 8:00 A. M.

   The witness, Quarles, testified he lived about a block away from the scene of the crime.  He and his wife saw the appellant about 7:30 A. M., on a path near his house.  He knew the appellant and spoke to him.  Both had been recently laid off from work, and the appellant owed him $1.90.  The appellant gave the witness $2.00 and received two nickels change.  The appellant had on dark trousers and a light shirt.
 
   Mrs. White, the appellant's mother-in-law, testified that the appellant came to her house[***13] between 7:30 and 8:00 A. M. and paid her $8:00 on account of what he owed her.  He was wearing a tee shirt and khaki trousers. Between 7:00 and 8:00 A. M., the appellant went to a tavern in the neighborhood and bought a pint of wine for 50 cents and received 50 cents in change.  Police officers apprehended the appellant at Mrs. White's home at 11:20 A. M., hiding in a closet.  He was wearing khaki trousers, a tee shirt, and socks without shoes.  There was a large hole in the toe of the right sock and a smaller hole in the toe of the left sock. Examination revealed [*68] a blood stain on the left cuff of his trousers, and blood and seminal stains on his shorts.  The appellant was identified by the prosecuting witness in a line up and at the trial.  She had seen the appellant only once before.

   There was sporadic questioning by other officers during the day, in which the appellant made no admissions.  Several of these officers noted that the appellant stuttered a little but they had no difficulty understanding him.  They all denied making any threats, promises or inducements. Lieutenant Kinsey testified he talked to the appellant at about 8:30 P. M.  Appellant asked him "would[***14] it be easier on me if I told the truth?" The Lieutenant said he did not know, and said: "I'm not making you no promises, but I can advise you that the truth hurts no one." Some time later, appellant agreed to give a statement.  Captain Wellham then came in and questioned the appellant, in the presence of Lieutenant Kinsey.  He typed the questions and answers.  The taking of the statement began about 9:50 P. M. and was completed about 11:35 P. M.  No one left the room, but coffee was brought in for all, including the appellant. No threats, promises or inducements were made to the appellant.

   The statement, admitted in evidence over objection, contained a number of admissions.  The appellant stated that he and his wife were living with his mother-in-law, but he had not been home for several days.  He had been sleeping in "junk" or abandoned cars.  He went to the home of the prosecuting witness and told her he wanted $5.00.  He knew her by sight.  She gave him $11.00.  He followed her into her bedroom and she allowed him to have intercourse with her. He did not threaten her.  He said he owned the knife with the black point, and laid it on the table beside the bed while having intercourse, [***15] then put it back in his [**491] pocket.  He said he had a pillow slip in his pocket which he found outside the house.  He used it to wipe his face.  He had never had intercourse with the witness before and had never borrowed money from her before.  He admitted paying Mr. Quarles $1.90 and buying the wine.  He gave Mrs. White $8.00.

   It may be doubted whether the statement was a confession, [*69] although it contained a series of admissions.  We have noted that there is a clear distinction.  In Delnegro v. State, 198 Md. 80, 87, we said: "An admission is an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction, and which tends to establish the ultimate fact of guilt. A confession implies that the matter confessed constitutes a crime." See also Ford v. State, 181 Md. 303, 307; Kier v. State, 213 Md. 556, 559; 3 Wigmore, Evidence (3rd Ed.), § 821, p. 243; 2 Wharton, Criminal Evidence (12th Ed.), § 398; 2 Underhill, Criminal Evidence (5th Ed.), § 385.  It is clear that the statement in the instant case did not confess the crime of rape, or indeed, any crime except, perhaps, adultery.  It admitted the[***16] receipt of money and the intercourse, but asserted that both were voluntary on the part of the prosecuting witness. But if we assume, without deciding, that the strict rule that the State must establish that a confession is voluntary, before it can be admitted in evidence, is applicable in the instant case, we find no error in the ruling of the trial court.

   The appellant argues that the prolonged questioning amounted to coercion. There was no evidence of mistreatment or actual violence, as in Jackson v. State , 209 Md. 390, and it is well settled in this State that lengthy interrogation does not of itself make a confession involuntary.  See Cox v. State, 192 Md. 525; and James v. State, 193 Md. 31. The chief contention is based on the theory of an inducement. The appellant relies heavily upon the cases of Edwards v. State, 194 Md. 387, and Kier v. State, supra, but in both those cases the inducement was implied from the circumstances and neither decision was rested upon the mere form of words.  In the Kier case, supra, we said (p. 562): "It may well be that the implication of a threat or promise should not be drawn from the word 'better' alone.  In some[***17] contexts, at least, the word 'better' might refer to moral or spiritual rewards.  The inner psychological pressure of conscience to tell the truth does not constitute coercion in the legal sense. Cf. James v. State, 193 Md. 31, 42. See also Wigmore, Evidence (3rd ed.), §§ 832, 840; Underhill, Criminal Evidence (5th ed.), Sec. 388." See also note, 38 Geo. L. J. 686, commenting [*70] upon the Edwards case, and 2 Wharton, Criminal Evidence (12th ed.), sec. 367.  In the instant case the statement of the officer did not contain the word "better".  In reply to the question by the accused if it would be "easier" if he told the truth, the officer replied that he did not know and could make no promises.  True, this was followed by a statement that "the truth hurts no one", a generalization that is not necessarily so.  We think, however, that the generalization cannot be construed as a promise of leniency in the subsequent proceedings, particularly where the accused had been told that any statement would be used against him.

   As we said in Kier v. State, supra, (p. 562): "Exhortations to tell the truth, or 'I want you to tell the truth', have been held not fatal. [***18] Nicholson v. State, 38 Md. 140. Cf. Ross v. State, 67 Md. 286, Rogers v. State, 89 Md. 424, 427, and Deems v. State, 127 Md. 624, 630." In Deems v. State, supra , an officer asked the accused "why he didn't tell the truth," that "the truth would hurt no one".  (Italics supplied.) Judge Urner, for the Court, held that this statement did not render the [**492] confession inadmissible.  This case is directly in point.  See also Martin v. United States, 166 F. 2d 76 (C. C. A., 4th).

   Obviously, the admissions of the accused establish his identity as the person who had intercourse with the prosecuting witness, and they are strongly corroborated by the circumstantial evidence in the case.  The issue whether the intercourse was forcible and without the consent of the prosecuting witness was one of credibility, properly to be resolved by the triers of fact. We cannot find that they were clearly wrong.  Cf. Kier v. State, 216 Md. 513, and cases cited.  We find no merit in the appellant's contention that the punishment was excessive.  It was within the statutory limit prescribed by Code (1957), Art. 27, sec. 461.  "* * * the trial court alone has the[***19] right to determine the penalty within these limits." Reid v. State, 200 Md. 89, 92.

   Judgment affirmed. 

KRAUSS et al. v. STATE 
No. 192, September Term, 1957
 
Court of Appeals of Maryland
 
216 Md. 369; 140 A.2d 653; 1958 Md. LEXIS 430

 April  25, 1958, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment and sentence reversed, costs to be paid by the County Commissioners of Anne Arundel County.

CORE TERMS:  trespass, driven, filling station, notice, accompanied, policeman, notified, common law, repossess, peace, trespassing, recorded, repairs, Criminal Law, conditional sales contract, conditional contract, legally sufficient, claim of right, duly recorded, civil action, finance, repossessed, subordinate, misdemeanor, forbidding, unlawfully, convicted, tortured, crossing, concedes

COUNSEL: C. Edward Hartman, II, with whom were Fell & Hartman on the brief, for the appellants.

   E. Clinton Bamberger, Jr., Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Henderson, Hammond, Prescott and Horney, JJ., and Macgill, J., Associate Judge of the Fifth Judicial Circuit, specially assigned.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*371] [**653] The appellants, William Krauss and Edwin Schmidt, along with[***4] William Kramer, were charged upon warrant with "unlawfully trespass upon the property of said Edward Huntzberry", 1125 Ritchie Highway, in Anne Arundel County.  Kramer was tried before Trial Magistrate Pitcher, in Anne Arundel County, and acquitted.  The appellants were tried before Trial Magistrate DeAlba and convicted. They appealed to the Circuit Court for Anne Arundel County, and were there tried, convicted and each fined $10.00 and costs.  We granted certiorari.

   The appellants and Kramer were employed by Eastern Acceptance Corporation to repossess a 1950 Oldsmobile automobile to which it held title under a recorded conditional contract of sale assigned to it by the vendor on December 14, 1956.  This contract was in default, and it provided that in such event the "Seller may without notice lawfully enter any premises where the car may be found, take possession of it and custody of anything found in it".  See also Code (1957), Art. 83, sec. 141.  The contract further provided that the buyer would not "encumber" the car.  On the morning of June 18, 1957, Schmidt located and identified the automobile standing on an open lot behind a filling station owned by Huntzberry.  Schmidt[***5] testified that Huntzberry told him on the telephone that he claimed a garageman's lien on the car for storage and towing.  Huntzberry denied talking to [**654] Schmidt, but said he learned of the visit from his son.  Schmidt returned to the station about 1 A. M. on the following morning accompanied by Krauss and Kramer.  A policeman saw their car standing on the lot, and investigated.  They told him they were checking the serial number of the car.  [*372] There was no testimony that they had attempted to move the car at the time the policeman arrived on the scene. Schmidt admitted that they intended to repossess it.  "If it would run we probably would have driven it." They had not attempted to start it.  The policeman 'phoned Huntzberry, who had closed the filling station at midnight. Huntzberry came back and subsequently swore out the warrant.  He admitted that there were not any "no trespassing" signs posted on the premises.

   The State concedes that the appellants were charged under Code (1951), Art. 27, sec. 26, (Code (1957), Art. 27, sec. 577), and not under sec. 300 (Code (1957), Art. 27, sec. 576), relating to posted property.  Sec. 26 reads in part as follows: "Any[***6] person or persons who shall enter upon or cross over the land, premises or private property of any person or persons in this State after having been duly notified by the owner or his agent not to do so shall be deemed guilty of a misdemeanor, * * * and, provided, further, that nothing in this section shall be construed to include within its provisions the entry upon or crossing over any land when such entry or crossing is done under a bona fide claim of right or ownership of said land, it being the intention of this section only to prohibit any wanton trespass upon the private land of others."

   The State concedes that at common law a trespass to private property is not a crime unless it is accompanied by, or tends to create, a breach of the peace, although the owner may have a civil action for trespass. Clark and Marshall, Crimes (5th Ed.), sec. 424; Hochheimer, Law of Crimes and Criminal Procedure (2d Ed.), sec. 327-329.  It is argued, however, that there was legally sufficient evidence from which the trial judge could have found that they were notified by the owner not to enter.  We think no such inference can be drawn from the testimony.  Certainly there was no testimony[***7] of an express statement to that effect by Huntzberry.  The owner did not tell Schmidt not to enter on his premises, he only told him that he claimed a lien on the car, if we accept Schmidt's version.  That claim could hardly be supported.  Code (1957), Art. 63, sec. 41, which creates or recognizes a lien for storage [*373] and repairs, expressly makes such lien subordinate to the rights of the holder of a conditional sales contract, duly recorded prior to the performance of the services for which a lien is claimed.  Goldenberg v. Finance & Credit Co., 150 Md. 298. In Credit Co. v. Marks, 164 Md. 130, and Balto. Bankers Corp. v. Peters, etc., 193 Md. 655, the Goldenberg case was distinguished on the grounds that the contract was recorded in another state, and that the repairs were made before the recordation of the contract, respectively.  These cases are not in point here.
 
   Huntzberry did not tell the appellants not to take the car.  The most that can be gathered from the testimony is that he expected his bill to be paid before they attempted to take it.  Whether he would have forbidden them to take the car without paying his bill is a matter of speculation.  Certainly, [***8]he had no legal right to forbid the taking.  We think the testimony cannot be tortured into a statement forbidding them to enter the premises. Huntzberry testified: "I didn't feel as though they would look me up at one-thirty in the morning".  Presumably, if they had called before he left the premises, he would not have thought that they were trespassing. Yet the statute creating the crime of trespass after notice takes no account of the time of day or night.  There is no contention that the trespass involved a breach of the peace, or a forcible taking.

   The State also argues that when Schmidt left the premises after his first visit, he [**655] must have known that he was not permitted to go on the premises to take the automobile, as otherwise he would have taken it then.  So far as appears, Schmidt came by himself in a car, and he could not have driven off the other car without leaving his own.  Nor does it appear that the repossessed car was in a condition to be driven. Apparently it had been towed to the lot, and there is no claim that it had been repaired.  Without in any way approving the nocturnal visit, we think the statutory crime of trespass after notice was not established. [***9]

   In view of our conclusion on this point, we express no opinion as to the appellants' contentions that a "wanton" [*374] trespass was not made out, and that the entry was under a claim of right.

   Judgment and sentence reversed, costs to be paid by the County Commissioners of Anne Arundel County. 

CHARLES H. STEFFEY, INC. v. HIGH 
No. 168, September Term, 1957
 
Court of Appeals of Maryland
 
216 Md. 170; 139 A.2d 730; 1958 Md. LEXIS 411

 March  26, 1958, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, the appellant to pay the costs.

CORE TERMS:  admissibility, traffic signal, traffic, phase, signal, intersection, highway, police officer, intoxication, appreciable, drunken driving, trier of fact, cross-examination, green, lane, direct examination, evidence produced, oral testimony, traffic light, right of way, credibility, sobriety, investigated, intoxicating, illustrations, declaration, complicated, appearance, appliance, soberness

COUNSEL: Marvin I. Anderson, with whom was Malcolm B. Smith on the brief, for the appellant.

   The Court declined to hear argument for the appellee.

   Robert E. Coughlan, Jr., on the brief for the appellee.

JUDGES: Brune, C. J., and Henderson, Prescott and Horney, JJ., and Carter, J., Chief Judge of the Second Judicial Circuit, specially assigned.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*172] [**731] The Circuit Court for Anne Arundel County entered a judgment for costs in favor of John W. High (High), defendant below, against Charles H. Steffey, [***4] Inc., (Steffey, Inc.), plaintiff below. Steffey, Inc., had sued High for damages it sustained as the result of an automobile accident.  The jury found a verdict for High.  Steffey, Inc., appealed.

   John H. Steffey (Steffey), an employee of Steffey, Inc., on April 20, 1956, was operating an automobile owned by his employer in a southerly direction on Ritchie Highway. High was operating his automobile in a northerly direction on the same highway. High intended to make a left turn at the Furnace Branch Road, but when he reached the intersection the traffic light was green for north and south bound traffic. He stopped his car in the center section of the highway to await a change in the traffic signal to allow him to turn left and proceed in a westerly direction on Furnace Branch Road.  According to High and his witnesses, when the traffic light changed to green for east and west bound traffic, he started across the south bound lane of the highway and was struck by the Steffey automobile.  According to Steffey and his witnesses, the south bound light was green and the west bound light was red at the time of the accident. Essentially, therefore, the operators disagreed as to which[***5] [*173] automobile had been given the right of way by the traffic signal. The jury chose to believe that High had the right to proceed.

   Steffey, Inc., contends that the judgment should be reversed because of two allegedly erroneous rulings on the evidence.  One ruling concerned the admissibility of the testimony of an employee of the State Roads Commission of Maryland, who explained in detail the operation of the traffic signal at the intersection where the accident occurred.  The other ruling concerned the admissibility of parts of the testimony of the police officer who investigated the accident as to the sobriety or intoxication of High.

   With regard to the question of the admissibility of the testimony of the employee of the State Roads Commission as to the operation of the traffic signal, it [**732] was contended by Steffey, Inc., that such testimony was not only immaterial and irrelevant to the issues in this case, but was, on the contrary, calculated to confuse the jury, and should have been excluded. However, it is well settled that a person who is qualified by study or experience, or both, to understand and explain the subject under consideration, may testify as[***6] to the manner in which a certain device or appliance operates.  The test of admissibility of such testimony is whether it would probably aid the trier of fact to draw an accurate conclusion or correct inference from the facts already in evidence.  If it would not, then the testimony of the expert should not be admitted.  But, when the subject is such that a jury or a court would receive appreciable help from the introduction of such testimony, then it is proper to admit it.  Empire State Ins. Co. v. Guerriero, 193 Md. 506, 514-15, 69 A. 2d 259 (1949); Langenfelder v. Thompson, 179 Md. 502, 505, 20 A. 2d 491 (1941); Consolidated Gas Co. v. State, Use of Smith, 109 Md. 186, 203, 72 A. 651 (1909).

   The traffic signal at the intersection of Ritchie Highway and Furnace Branch Road was what is known as a three phase signal. It controlled traffic in three different directions -- one phase controlled traffic in the north and south bound lanes of Ritchie Highway -- another phase controlled traffic going east and west on Furnace Branch Road -- the remaining, [*174] or third phase, controlled traffic making a left turn from the highway into the road.  In the case before us the[***7] witness explained in detail by oral testimony and manual illustrations how the signal operated in its three phases. The witness did not attempt to explain how the accident happened.  He could not, for he had not seen it.  Obviously, the only purpose of the testimony was to aid the jury in understanding the operation of the complicated signal at the time of the accident.  Since it is proper to permit the introduction of facts whenever the trier of fact could receive appreciable help from such testimony, it follows that the admissibility of such facts as may be offered for that purpose must be left largely to the discretion of the trial court.  We hold that there was no error in the admission of the testimony of the witness who was familiar with the operation of the traffic signal at the intersection where the accident occurred. 

   With regard to the question of the admissibility of the testimony of the police officer as to the sobriety or the degree of intoxication of High, the declaration shows that Steffey, Inc., alleged that High was operating his automobile "while under the influence of intoxicating alcoholic beverages or liquors" at the time of the accident.  Furthermore, at the[***8] trial, Steffey, Inc., called the police officer as a witness and, on direct examination, elicited testimony to the effect that High had the appearance of a man who had been drinking because he had the usual symptoms of "droopy eyes" and the smell of alcohol on his breath.  On cross-examination the officer was allowed to testify that he did not charge High with "drunken driving".  And, in reply to a question on re-direct examination, the officer stated that he had charged High with reckless driving.  Steffey, Inc., objected to the testimony admitted on cross-examination on the theory that such evidence would cause an inference in the minds of the jury that High was not under the influence of liquor at the time.  The evidence was properly admitted.  Not only was the soberness or intoxication of High an issue by virtue of the pleadings and evidence produced by Steffey, Inc., but High's credibility as a witness for himself was also an issue.  Cf. Zeller v. Mayson, 168 Md. 663, 179 A. 179 (1935); Dorman v. Koontz, 164 Md. 535, [*175] 165 A. 461 (1933); Mattingly v. Montgomery, 106 Md. 461, 68 A. 205 (1907); McLaughlin v. Mencke, 80 Md. 83, 30 A. 603 (1894).

   The judgment[***9] for costs should be affirmed.

   Judgment affirmed, the appellant to pay the costs. 

EVELYN v. RAVEN REALTY, INC. 
No. 107, September Term, 1957
 
Court of Appeals of Maryland
 
215 Md. 467; 138 A.2d 898; 1958 Md. LEXIS 354

 February  25, 1958, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Decree reversed, and bill dismissed, the appellee to pay the costs. 

CORE TERMS:  buyer, seller, estoppel, specific performance, contract of sale, sale of land, original contract, time specified, able to perform, oral evidence, extension agreement, date specified, intermediary, estopped, deposit, failure to perform, purchase price, telephone call, admissible, non-performance, consummate, thirty-day, readiness, promised, promisee, promisor, duty, timely payment, telephone conversation, equitable estoppel

COUNSEL: Thomas S. Knox for the appellant.

   Arnold Fleischmann, with whom were A. Frederick Taylor[***5] and Smalkin, Hessian, Martin & Taylor on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [*469] [**898] From a decree of the Circuit Court for Anne Arundel County requiring the specific performance of a contract of sale between Dr. Reginald G. Evelyn, (the seller), and Joseph R. Spangle, (the intermediary), subsequently assigned to Raven Realty, Inc., (the buyer), the seller has appealed.

   On December 16, 1955, the seller entered into an agreement to sell to the buyer a parcel of land in Anne Arundel County.  The sale price was $700, of which $100 was paid when the contract was executed, leaving a balance of $600 to be paid within thirty days.  The contract contained a clause to the effect that time was of the essence, and that failure to comply would constitute a forfeiture of the deposit. The intermediary, who was a real estate salesman acting as agent for the buyer, assigned the contract to the buyer on December 19, 1955, but inadvertently omitted the name of the assignee.  No notice of the assignment was given to the seller. The buyer contends[***6] that on or about January [**899] 10, 1956, the intermediary, at the behest of Dennis P. Murphy, [*470] the president of Raven Realty, Inc., called the seller on the telephone, requested and was granted an extension of sixty days from January 16, 1956, within which to pay the balance of the purchase money.  The result of the telephone call having been reported to the buyer, its president wrote a letter to the seller on January 10, 1956, confirming the extension.  On the other hand the seller claims that he did not receive either the telephone call or the letter, and that he was never contacted by either the intermediary or the president of the buyer corporation in regard to an extension of time.  He stated that the only telephone call he received concerning the property was from a lady about two months after the contract was executed.  She did not identify herself and merely inquired if he owned the property in question and whether he was married.  There was no conversation with her concerning an extension of the time of settlement.  The seller further contends that the next communication he received with respect to the property was a letter dated March 2, 1956, from H. Richard[***7] Smalkin, attorney for the buyer, in which the date of March 7, 1956, was set to consummate the sale.  Upon the receipt of this letter the seller had his attorney notify the attorney for the buyer that, because the purchaser had not abided by the contract, the seller had treated the deposit as forfeited.  The buyer was able, ready and willing to consummate the sale on March 7, 1956, but there was no evidence as to whether it could have performed its contract on January 16, 1956, within the thirty-day period specified in the contract of sale.

   This seemingly simple enumeration of facts poses a myriad of legal problems, among which are: (i) was the contract of sale assignable without notice to the seller?; (ii) was a consideration necessary to extend the time for payment?; (iii) was the telephone conversation relating to the extension agreement admissible?; (iv) was the letter confirming the extension agreement admissible?; (v) was the agreement to extend within the Statute of Frauds?; (vi) was there a waiver of the specified time for payment by the seller?; (vii) was the seller estopped from treating the deposit as forfeited?; and (viii) was the chancellor clearly wrong in deciding that[***8] [*471] the buyer was entitled to specific performance of the contract of sale? Moreover, many of the questions posed concern an important element of the law of contract as to which there appears to be many inconsistencies, if not utter confusion.  However, in Maryland the confusion appears to be less than in some of the other jurisdictions.

   Even if it is assumed that the contract of sale was assignable, that no consideration was necessary to extend the time for payment, and that the telephone conversation relating to the extension agreement and the letter, or a copy of it, purporting to confirm the extension agreement, were admissible, the buyer was still not entitled to prevail.

   We have consistently held that when an agreement, such as the contract of sale in this case, is required by the fourth section of the Statute of Frauds n1 to be in writing in order to be binding, and in which it is stipulated that time is of the essence, the statute makes oral evidence inadmissible to vary the original contract, but does not prevent the admission of oral evidence to show an effectual waiver or estoppel as to the time of performance.  Abrams v. Eckenrode, 136 Md. 244, 110 A. [***9] 468 (1920); Spellman v. Dundalk Co., 164 Md. 465, 165 A. 192 (1933); Markoff [**900] v. Kreiner, 180 Md. 150, 23 A. 2d 19 (1941); Bank v. Hurst Estate, 187 Md. 333, 50 A. 2d 133 (1946); Garbis v. Weistock, 187 Md. 549, 51 A. 2d 154 (1947); and Born v. Stancills, 214 Md. 443, 135 A. 2d 843 (1957).

n1 The statute of 29 Car. II, Ch. 3, sec. 4, set forth in Alexander's British Statutes, p. 689 (Coe's ed. 1912), commonly known as the Statute of Frauds, provides, with respect to a contract for the sale of land, that no suit shall be brought unless the agreement on which the action is brought, or some memorandum or note thereof, is signed by the party to be charged.

   Since there was no evidence of a memorandum in writing signed by the seller extending the time for payment beyond the time specified in the original contract of sale, the real question then is whether the seller waived the time requirement under the contract of sale or was estopped from claiming a default [***10]on the part of the buyer.

   There is even confusion in the use of the terms "waiver" [*472] and "estoppel".  Many law writers and courts make no effort to distinguish them and use the terms interchangeably.  A clarification may not be amiss.  When a seller has promised to convey land on the express condition that payment of the purchase price must be made on or before a specified date, payment on time is the condition which a buyer must perform.  But, if the seller merely states to the buyer that he does not insist on timely payment, he thereby eliminates the condition, and such statement constitutes a "waiver". n2 Being the seller's voluntary action, it is not necessary for the buyer to give any consideration for the waiver, or that the buyer change his position, in reliance thereon, in order for the waiver to be legally effective.  If, however, the seller foresees or should have foreseen that the buyer would materially change his position in reliance on the waiver, and the buyer does so, then the seller is "estopped". The seller's action is still a "waiver", but the resulting action in reliance thereon by the buyer creates the "estoppel".  Thus, "waiver" consists of the voluntary[***11] action of the seller alone, while an "estoppel" requires the action of both the seller and the buyer. n3

n2 The term "promissory estoppel" is often used synonymously with "waiver" as contrasted with the normal equitable estoppel.

n3 For an exposition of the difference between a "waiver" and an "estoppel", see 3 Corbin, Contracts, Sec. 752; Colbath v. H. B. Stebbins Lumber Co., 127 Me. 406, 144 A. 1 (1929); and Northwestern National Life Ins. Co. v. Ward, 56 Okla. 188, 155 P. 524 (1915).

   Contrasting a waiver with the doctrine of equitable estoppel, Section 689 of 3 Williston, Contracts, (Rev. ed. 1936), states the proposition thus:

   "The same principle is applicable to other excuses for non-performance of a promise besides breach of conditions.  Wherever the promisee has allowed a legal excuse to arise, relying upon express or implied statements of the promisor that the latter would not avail himself of the excuse, there is waiver.  This is a principle distinct from the ordinary equitable[***12] estoppel, since the representation is promissory, not a misstatement of an existing fact.  * * * To bring [*473] the case within the reason of the rule it is essential that the promisee could and would have performed the condition, or would not have allowed the defense to arise, had it not been for the promisor's waiver.  For if the promisee could not have entitled himself to performance of the promise, even had there been no waiver, there is no equitable reason why the promisor should not take advantage of the breach of condition or other defense.  He has promised that he would not, but his promise was not only wholly gratuitous, but has not been acted on."
 
This principle explains the holding in Walter v. Bloede Co., 94 Md. 80, 50 A. 433 (1901), a case involving the breach of a contract for the sale of merchandise in which the same principle of law was present that we are principally concerned with here: that the buyer must have been able to perform his part of the contract to be performed within the time specified in the original contract of sale.  See also Spellman v. Dundalk Co., supra. There is also a corollary to the theory previously stated to the effect[***13] that where the plaintiff procures the extension, he cannot later claim [**901] that the defendant's waiver entitled the plaintiff to specific performance. The latter theory is not always followed in other jurisdictions, but it is certainly one of the reasons for the decision in the Walter case, supra, and is the theory behind the rule stated in 2 Williston, op. cit., supra, Sec. 598:

   "Where the extension of time or other variation of the contract is requested by one party because of his inability to perform the contract according to its terms, or in any case where he would have been thus unable, an agreement by the other party permitting an extension or variation cannot be said to be the cause of the failure to perform the contract according to its original terms.  Here, if the party guilty of non-performance of the original obligation is allowed to recover or is protected from liability on it because of his readiness and willingness to perform the extended or varied contract, he is relying merely [*474]on a voluntary permission or on an oral contract within the Statute. There is no equity forbidding the Statute to be set up under these circumstances."[***14]
 
This statement is not inconsistent with Williston's earlier statement in Section 595 to the effect that non-performance of a condition will be excused if "caused" by the defendant, and it certainly coincides with the first part of the statement in Section 689, supra.  In other words, if the plaintiff could not have been able to perform the original contract within the original time limit, he cannot rely on the defendant's oral waiver.

    In the case at bar the buyer seeks to use the waiver, which it sought and claims to have received, but it produced no evidence that the buyer could have performed within the thirty-day period specified in the original contract of sale.  We have been referred to no case, nor have we found one granting the plaintiff a remedy (i) where it was the plaintiff who sought the waiver, (ii) where it was the plaintiff who was relying on the oral waiver, and (iii) where the plaintiff did not produce evidence showing that he could have performed within the original time limit.  Yet all of these factors are present in the instant case as they were in the Walter case, supra.

   There remains but one other problem to be considered: who has[***15] the duty of showing (or not showing) that the buyer could have performed the contract within the original time specified therein?

   The authorities seem to agree that it is the duty of the plaintiff -- the buyer in the case now before us -- in the pleadings, as well as at the trial of the issue, to show that he could have performed on the date specified in the contract.

   By its pleading the buyer should have alleged that it had performed or offered to perform, or explain its failure to perform or offer performance of the terms and conditions of the contract on its part to be performed prior to, or concurrent with, the performance required of the seller. 81 C. J. S., Specific Performance, Sec. 131; Miller, Equity Procedure (1897), Sec. 659.  Also see Horwitz v. Kreuzer, 140 Md. 414, 117 A. 563 (1922). An examination of the bill [*475] discloses that it is silent as to performance except, perhaps, by implication, and there is not a word as to the buyer's ability, readiness and willingness to perform on the date specified in the contract; but we are not primarily concerned with the pleadings here.

   Likewise, at the trial of the issue, the buyer had the burden of showing [***16]that if the requested extension had been denied, it was willing, ready and able to perform its unperformed part of the contract.  81 C. J. S., Specific Performance, Sec. 140; 4 Pomeroy, Equity Jurisprudence, (5th ed. 1941), Sec. 1407.  Also see Walter v. Bloede Co., supra; DeCrette v. Bonaparte, 139 Md. 252, 114 A. 880 (1921), and cases therein cited; and Triton Realty Co. v. Frieman, [**902] 210 Md. 252, 123 A. 2d 290 (1956), and cases therein cited; and see Mansfield v. Redding, 269 Pa. 357, 112 A. 437 (1921), and Mitchell v. White, 295 Ill. 135, 128 N. E. 803 (1920). In the case at bar the buyer failed to prove that it could have performed on or before January 16, 1956.  Instead it insisted on proving that it was able, ready and willing to perform on March 7, 1956.

   We think it is clear that the bill for specific performance should have been dismissed on the evidence as well as the law.

   Obviously, it is not necessary for us to consider the other questions posed by the facts.  The other questions of law presented by the briefs, not herein considered, were either abandoned at the argument, or it is not necessary now to consider them further.

   Decree [***17]  reversed, and bill dismissed, the appellee to pay the costs. 

ANDERSON v. ANDERSON 
No. 136, September Term, 1957
 
Court of Appeals of Maryland
 
215 Md. 483; 138 A.2d 880; 1958 Md. LEXIS 356

 February  25, 1958, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree affirmed, costs of this appeal to be divided by the parties. 

CORE TERMS:  partnership, entireties, partner, tenants, contributed, divorce proceeding, mortgage, husband and wife, chancellor, conveyance, burden of proof, net proceeds, joint bank account, purchase price, income tax, dissolution, auditor, gift, restaurant, surplus, decree, audit, property acquired, absolute gift, entitled to receive, written agreement, capital accounts, absence of proof, capital account, voluntary act

COUNSEL: O. Bowie Duckett for the appellant.

   W. Harvey Beardmore, with whom was Louis M. Strauss on the brief, for the appellee.

JUDGES: Brune, C. J., and Henderson, Hammond, [***5] Prescott and Horney, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*485] [**881] This is an appeal from the denial of exceptions by an estranged wife to the ratification of an auditor's account distributing [*486]the surplus proceeds of a foreclosure sale of certain property, after the payment of the mortgage debt, expenses and claims.  The property was held as tenants by the entireties, and the decree appointed trustees to hold the surplus net proceeds, to invest the same under order of court, to pay the income equally to the parties during their joint lives, and at the death of either, the principal to the survivor, in the absence of [**882] an agreement by the parties to the contrary, or for an earlier distribution.  The wife appeals, contending that she is entitled to receive an immediate distribution of the sums she contributed to the acquisition of the property, on the theory of partnership.
 
   The parties were married in 1940, but she continued to work in Washington, D. C., where they resided.  He was employed by a railroad, and she was employed by the Government as a secretary and stenographer.  She was, and is, a member of [***6]the Bar in the District of Columbia, and practiced to a limited extent.  On July 23, 1953, they purchased at a price of $18,000.00 a property at Deale, Maryland, consisting of a lot 200 feet by 200 feet, improved by a restaurant building and an unfinished dwelling, plus stock, fixtures and equipment, and the right to use the trade name, "Uncle Jim's Bar-B-Q".  Title was taken in their names as tenants by the entireties, and a loan of $9,000.00 was obtained from a building and loan association.  Although there is some conflict in the testimony as to the amounts contributed by each, it is clear that Mrs. Anderson contributed the major portion, if not substantially all, of the balance of the purchase price, chiefly from the proceeds of the sale of property in Georgia, which she inherited from her aunt.  The parties moved to Deale and resided in the dwelling, taking all their meals in the restaurant, and continued the business until November, 1954, when she left as a result of marital disagreements.  In July, 1955, a divorce proceeding was instituted but the record does not show the outcome.  It is conceded, however, that there was no decree a vinculo.  It appears that she kept the[***7] books and handled the business correspondence.  There was only a cash book showing receipts and disbursements.  There was no partnership or joint bank account. She also [*487]helped in the restaurant on week-ends and vacations, but she kept her job in Washington.  He apparently devoted all his time to the business, doing the marketing and cooking.  His sister also assisted in the work.  After Mrs. Anderson left in November, 1954, he continued the business, but was unable to meet the mortgage payments.  The foreclosure proceeding was begun early in 1956, and the property was sold for $14,150.00 on June 12, 1956.

   It is clear that there was no written agreement to support her claim of partnership. She testified that the business was "operated as a partnership", of which she and her husband were the partners. He denied that there was ever any agreement as to a partnership, but admitted that they agreed to divide the net profits equally.  A partnership income tax return for the year 1953 was put in evidence, showing a net loss.  In this return the partners' capital accounts were shown as "Benjamin F. Anderson, $7,099.15, and Martha M. Anderson, $7,099.14".  There was no listing[***8] of any indebtedness by the partnership to Mrs. Anderson.  When questioned by the court as to the equal division of profits and the statement of capital account, she testified: "I was his wife and it never crossed my mind that I didn't share * * * with him." She also testified: "* * * it never occurred to me that there would ever be any dispute.  * * * As to dividing property * * * we had no terms, we just had an agreement about the profits; as far as I was concerned it would be 'til the end of time."

   The appellant strongly relies upon Code (1951), Art. 73A, sec. 18, which provides in part: "The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules: (a) Each partner shall be repaid his contributions, whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied; * * *."

   It is well settled that, in Maryland at least, there may be a partnership between husband and wife. In Collier v. Collier, 182 Md. 82, 88, it was said, however, that "The burden of [*488] [***9] [**883] proof was upon the wife as plaintiff to prove that she was a partner", and that "The main test of whether or not a partnership exists is the intention of the parties to create a partnership. * * * This intent may be manifest by the terms of their agreement, the conduct of the parties to each other under it, or by the circumstances generally surrounding the transaction." It was held in that case that no partnership was intended, despite the fact that the wife assisted in the conduct of the business, and that income tax returns were made in partnership form.  It seems that the property was held in their joint names as tenants by the entireties, but he had contributed the funds.

   In Beard v. Beard, 185 Md. 178, 185, 186, the wife claimed to be a partner, but we agreed with the lower court that proof of "intention, at least on the husband's part, to create a partnership is wholly lacking and is negatived in words and in deeds, e. g., in his liquor license and his income tax returns." It was held, however, that she was entitled to a return of her capital contribution, because "there is not one word in the testimony to show that she intended to relinquish her property[***10] in the funds when she transferred them to Beard.  This is equally true of her testimony and of his." Cf. Lissy v. Lissy (Md. unreported; 23 A. 2d 39).

   In Smith v. Smith, 189 Md. 1, a wife's claim of partnership in a tavern business was sustained.  There the wife resigned a lucrative position to devote her time to the business, while the husband retained his outside employment. There was also undisputed testimony that the parties employed a tax consultant for the purpose of setting up a partnership, income tax returns, insurance policies and employers' tax reports, and a joint bank account, and it was held that there was sufficient proof to support the finding of the trial court, although the lease had been taken in the husband's name alone.  The Court distinguished Collier v. Collier, and Beard v. Beard, supra.

   We think Smith v. Smith, supra, is distinguishable.  The controlling fact in the instant case is that the whole property was acquired as tenants by the entireties. In legal effect, and in the absence of proof that it was not her voluntary act, this [*489] transaction on its face amounted to an absolute gift. Reed v. Reed, 109 Md. 690; Whitelock [***11]  v. Whitelock, 156 Md. 115, 120. Cf. Columbian Carbon Co. v. Kight, 207 Md. 203. The authorities generally are in accord.  See Note 43 A. L. R. 2d 917. The case of Schwarz v. United States, 191 F. 2d 618 (C. A. 4th), is not to the contrary.  There the conveyance failed because the husband was in fact married to another woman, unknown to the wife.  There is nothing in the provisions of the partnership act that prevents partners from agreeing as to the title to any specific assets. Subject to the rights of creditors, and unless fraudulent, partners may agree to a different distribution of the property on dissolution from that which obtains under section 18, in the absence of agreement.  Cf. Williams v. Dovell, 202 Md. 351, 357; Collier v. Benjes, 195 Md. 168, 176, and Noel v. Noel, 173 Md. 152. This would seem to be true even though, as against creditors, there may be a partnership relation.  Cf. Raymond S. Roberts, Inc. v. White, 97 A. 2d 245 (Vt.), and Northampton Brewery Corporation v. Lande, 10 A. 2d 583 (Pa. Sup.).

   In the instant case there is no suggestion that the wife, a lawyer, was not aware of the full legal import of the conveyance as tenants[***12] by the entireties. While the wife testified that the business was "operated as a partnership", she testified that there was never any discussion about distribution of capital assets.  It may be true that the rule stated in section 18 would prevail in the absence of any evidence of an agreement to the contrary, but the indisputable evidence of the conveyance is enough to establish a gift to the husband of the funds she contributed, as she said "'til [**884] the end of time".  Starting with the presumption of gift, there is nothing to negative the presumption.  In fact, the statement of capital account in the income tax return is consistent with the presumption.  We cannot find that the Chancellor was clearly wrong in finding no intention to change the legal title to the premises from a tenancy by the entireties to some other form of ownership.  On this assumption, it is perfectly clear that the net proceeds of the mortgage sale are likewise owned by the parties as tenants by the entireties. Masterman v. Masterman, 129 Md. 167; Brell v. Brell, 143 Md. 443.

   [*490] The only other point that requires discussion is the action of the Chancellor in allowing a claim of John[***13] K. Berry, auditor, in the sum of $500.00, instead of the amount claimed, $650.00.  It appears that an audit of the alleged partnership business was made in the divorce proceeding between these parties, apparently in connection with a claim for alimony pendente lite. The audit was made at the court's suggestion, but counsel for both parties agreed to the appointment of Mr. Berry.  Judge Macgill, in the divorce proceeding, stated that "In fairness, the cost of the audit should be divided between the parties, although this court does not conceive that it has the authority to tax this bill as a part of the costs of the case." The appellant contends that the claim cannot be allowed in this proceeding, "when the costs were incurred in another entirely * * * distinct proceeding".  If we assume, without deciding, that the claim might have been allowed as a part of the costs in the divorce proceeding, we see no good reason why it should not be allowed in the instant case, on the theory that it was a liability incurred jointly by the parties, to be paid out of the fund distributable to them in equal portions.  It is true that in divorce proceeding the wife is the privileged suitor, but under [***14]the special circumstances of this case, we see no equitable consideration that would require a reversal and further proceedings on such a trivial point.

   Decree affirmed, costs of this appeal to be divided by the parties. 

PHELPS et al. v. HERRO et ux. 
No. 65, September Term, 1957
 
Court of Appeals of Maryland
 
215 Md. 223; 137 A.2d 159; 1957 Md. LEXIS 536

 December  19, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Evans, J.

DISPOSITION: Judgments reversed without prejudice to the appellees' right to institute further proceedings to enforce whatever rights they may have under the contract, appellees to pay the costs.

CORE TERMS:  anticipatory breach, purchase price, summary judgment, instalment, unilateral, execute, repudiation, negotiable instrument, promissory note, negotiable note, promised, seller, non-negotiable, bilateral, promise to pay, vendor, lease, cause of action, prematurely, instituted, repudiated, payment of money, right of action, prima facie, goods sold, supplied, personal knowledge, entitled to recover, fully performed, novation

COUNSEL: William D. MacMillan and J. Calvin Carney, with whom was W. Garrett Larrimore on the brief, for appellants.

   John O. Herrmann, with whom was Charles F. Rechner, Jr., on the brief, for appellees.

JUDGES: Brune, C. J., and Henderson, Hammond and Prescott, JJ.  Prescott, J., delivered the opinion of the Court.  Hammond, J., dissents.

OPINIONBY: PRESCOTT

OPINION: [*225] [**160] This appeal questions the validity of an order passed on April 3, 1957, that directed, "the Plaintiffs' (appellees') motion for [***4] a Summary Judgment be granted," and a judgment entered on April 8, 1957, in favor of the appellees against the appellants for the sum of $34,135.82; both in the Circuit Court for Anne Arundel County.

   On October 21, 1955, the appellees and appellants entered into a written agreement whereby the appellees agreed to sell, and the appellants agreed to buy, fractional interests of the appellees in and to certain real property and corporate stock for the sum of $37,500.  The agreement further [**161] provided that appellants should pay the purchase price as follows:

   "1. Five Thousand Dollars ($5,000.00) in cash on or before January 1, 1956.

   "2. A promissory note in the amount of Thirty-two Thousand Five Hundred Dollars ($32,500.00) calling for principal payments in the amount of Five Thousand Dollars ($5,000.00) plus interest at the rate of four per cent (4%) per annum on the first of each succeeding January and the entire balance to become due and payable January 1, 1961.  However, Phelps and Sandsbury (appellants), may extend the maturity date until January 1, 1963, by [*226] giving notice of intention to so extend in writing to Herro (appellee) on or before July 1, [***5] 1960."

   The appellants paid the first $5,000 as provided in the agreement.  They and the appellees remained rather closely associated in several intricate and complicated business transactions until some time in September of 1956.  At that time, the appellees transferred unto the appellants their fractional interests in the real estate and corporate stock named in the contract.  Soon thereafter, negotiations were conducted by the parties, which had as their objective the sale to the appellants of all of the interests of the appellees in all business enterprises where there were mutual interests, or a purchase by the appellees of the appellants' interests therein.  A meeting was held and attended by all of the parties on October 11, 1956, at the office of the appellees' counsel.  At this meeting, the appellants contend the appellees made an oral proposal that was subsequently accepted unconditionally by the appellants in writing, thereby making a binding contract.  While the appellants fully acknowledge the existence of the contract involved in the case at bar, this alleged contract, as set forth by them, materially changed their obligations thereunder.  The appellees contend the[***6] appellants did not accept the proposal as made by them, and claim the purported acceptance contained a number of terms either in addition to or at variance with the oral offer made by them; consequently the purported acceptance was no more than a counter-proposal, which was not acceptable to them.

   The appellees instituted an action at law against the appellants on December 7, 1956.  The declaration consisted of five common counts in assumpsit and one special count on the written contract.  At the same time, the appellees filed a motion for a summary judgment to which was attached a photostatic copy of the written contract.  This motion was supported by an affidavit in proper form. This affidavit, after stating some of the facts related above, alleges the appellees: "transferred and conveyed to the defendants their said interest in and to said real and personal property and performed all other matters and things required of them under said [*227] agreement; that the defendants paid the plaintiffs five thousand dollars ($5,000.00) but have failed and refused to execute and deliver to the plaintiffs a promissory note in accordance with the said agreement although plaintiffs[***7] have so requested and demanded; that defendants have, through their attorney and agent, notified the plaintiffs, through their attorney and agent, that they will not pay the balance of the purchase price to the plaintiffs in the amount of thirty-two thousand five hundred dollars ($32,500); that there is now therefore justly due and owing the plaintiffs by the defendants over and above all credits the sum of thirty-two thousand five hundred dollars ($32,500) together with interest from January 1, 1956." The appellants filed what they termed an "Answer in Opposition to Plaintiffs' Motion for Summary Judgment." As the affidavit attached to this "answer" was clearly defective in not being made on personal knowledge (Maryland Rule 610 b), it cannot be considered here.  The appellees filed a supplemental affidavit before the hearing on the motion for summary judgment stating that they had [**162] received no payment from the appellants since the filing of the suit.  A hearing was held on the motion on March 29, 1957.  On April 3, 1957, a docket entry was made that reads: "Ordered that the Plaintiffs' motion for Summary Judgment be granted," and on April 8, 1957, judgment was entered[***8] against the appellants in favor of the appellees for $34,135.82.  From these, the appellants have appealed.

   The judgments herein were entered under the authority of Maryland Rule 610. Section a 1 of this rule provides: "In an action, a party asserting a claim, * * * may at any time make a motion for a summary judgment in his favor as to all or any part of the claim on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law." As the appellants' affidavit was defective, there was no genuine dispute concerning the facts, so we must determine whether the appellees were "entitled to judgment as a matter of law."

   It will be noted suit was filed December 7, 1956, and the next instalment of $5,000 was not due under the contract until January 1, 1957.  It is well settled and familiar law [*228] that a cause of action must be ripe at the commencement of the suit and the non-existence of a cause of action at that time is fatal to the right to recover; therefore it would be superfluous to cite authorities in support of the proposition.

   The appellees' theory of the case is that at the time of the hearing on the motion[***9] for a summary judgment, their allegations that the appellants had failed and refused, although requested and demanded, to execute and deliver a promissory note, and that the appellants had notified the appellees they would not pay the balance of the purchase price showed such a definite and specific repudiation of the contract that it entitled them to sue immediately for the entire sum due by the appellants under the contract.  The appellants, on the other hand, claim the suit was prematurely brought; that originally the contract was a bilateral one that became unilateral as soon as the appellees performed all of the matters and things required of them under the agreement (the fact that appellees had so performed being admitted in appellees' affidavit); that under the agreement of the parties, the appellants had not agreed to give a negotiable promissory note, or a note that was to be secured in any manner, but simply a promissory note payable to the appellees and signed by the appellants; that the consideration named was higher than the appellants would have agreed upon, unless the appellees had agreed to take an unsecured note payable over a long period of time; that when[***10] the contract became unilateral, the only obligation thereunder was that the appellants were required to pay several sums of money in instalments, which obligation, assuming a failure to give a note and a statement by their attorney that appellants would not pay the note, would not be accelerated so as to make the entire sum named in the contract, or any part thereof, due on December 7, 1956, when suit was instituted.

   One of the leading cases on the question of the anticipatory breach of a contract is Hochster v. De la Tour, 2 El. and Bl. 678. There, the plaintiff in April, 1852, had agreed to serve the defendant, and the defendant had undertaken to employ the plaintiff, as courier, for three months from June 1, 1852, on certain terms.  On May 11, 1852, the defendant wrote [*229] the plaintiff that he had changed his mind, and declined to avail himself of plaintiff's services.  On May 22, 1852, the plaintiff brought an action at law for breach of the contract.  It was held that there could be a breach before the time fixed for performance; that a positive and absolute refusal to carry out the contract prior to the date of actual default amounted to such a breach.  Since the [***11]decision in this case, there have been numerous and varied rulings on the many and complex angles that have arisen in applying, or not applying, the doctrine of anticipatory breach of a contract, and it [**163] is entirely possible the law relating thereto is not, at the present, well settled in all of its aspects.  Annotation, 105 A. L. R. 460, 462.

   However, with reference to unilateral contracts, or bilateral contracts that have become unilateral by full performance on one side, for the payment of money in the future, without surety or other conditions involved, (the situation in this case when suit was instituted), the text writers and decisions are in general accord that the doctrine of anticipatory breach has no application.  5 Williston, Contracts, sec. 1328; 4 Corbin, Contracts, sec. 963; Annotation, 105 A. L. R. 460, 465; Restatement, Contracts, sec. 318, comment e.  In Roehm v. Horst, 178 U.S. 1, a leading case, the Supreme Court, on elaborate consideration by Chief Justice Fuller, recognized the principle.  In Greenway v. Gaither, Taney, Circuit Court Decisions, 227, 231, the facts were quite analogous to those in the case at bar.  The plaintiff[***12] agreed to sell, and the defendant to buy, a house and lot for a sum of money to be paid in 18, 24, 30 and 36 months.  The defendant repudiated the contract, and suit was instituted before the first instalment of the purchase-money was due.  Chief Justice Taney decided the case had been prematurely brought.  In ruling on an application to seal a bill of exceptions, he stated: "It has never been supposed that notice to the holder of a bond, or a promissory note, or bill of exchange, that the party would not (from any cause) comply with the contract, would give to the holder an immediate cause of action, upon which he might sue before the time of payment arrived." A similar ruling was made in General American Tank Car Corp. v. [*230]Goree (C. C. A. 4th), 296 F. 32, 36, wherein the court stated flatly: "No right of action arises from the repudiation before maturity of a unilateral contract, nor for repudiation of an independent promise in a bilateral contract. An action cannot be sustained on a promissory note before maturity on the ground that the maker had declared his intention not to pay it.  A tenant's repudiation of his lease does not give his landlord an immediate right[***13] of action for future rent." In a case decided by this Court, Appleman v. Michael, 43 Md. 269, the plaintiff agreed to sell, and the defendant to purchase, certain goods; payment therefor was to be made by the defendant by executing his note in the amount of the purchase price, payable in ninety days.  The defendant refused to execute the note or to pay for the goods.  Suit was instituted more than three years after the defendant's refusal to execute the note, but less than three years from the maturity of the note, which the defendant was alleged to have agreed to execute. The Statute of Limitations was pleaded.  This Court held that this was not a sale upon condition that a note be given where no title would have passed unless the note were given; that it was a case where the sale and delivery of the goods were absolute, and where the title to them passed immediately, but they were to be paid for at a subsequent time; that the credit was not dependent upon the execution of the note, so that it could be terminated or treated at an end by the vendor upon the neglect or refusal of the purchaser to give the note; that the note would have given no additional security to the vendor[***14] and there was no stipulation in the contract for such security; that it was simply a case of a sale of goods upon an absolute credit of ninety days, and the Court was "clearly of (the) opinion (that) no action for their value could, under any circumstances, have been sustained if brought before the expiration of that time." In other words, the Court held that if the action had been brought after the neglect or refusal to give the note, but before its maturity date, the cause of action would not then have accrued and the suit would have been prematurely brought. n1

n1 For other cases holding that the doctrine of anticipatory breach of contract either has no application to unilateral contracts, or that it has no application to unilateral contracts for the pure and simple payment of money, see City of Hampton, Virginia v. United States (C. A. 4th), 218 F. 2d 401; Moore v. Security Trust and L. Ins. Co. (C. C. A. 8th), 168 F. 496; Brimmer v. Union Oil Co. (C. C. A. 10th), 81 F. 2d 437; Sagamore Corp. v. Willcutt (Conn.), 180 A. 464; Manufacturers' Furniture Co. v. Cantrell (Ark.), 290 S. W. 353, 354; Huffman v. Martin (Ky.), 10 S. W. 2d 636, 638; Sheketoff v. Prevedine (Conn.), 51 A. 2d 922, 924; Parks v. Maryland Casualty Co. (D. C., W. D. (Mo.), 59 F. 2d 736. Cf. Fidelity and D. Co. v. Brown (Ky.), 20 S. W. 2d 284; Better v. Williams , 203 Md. 613, 617, 102 A. 2d 750; Weiss v. Sheet Metal Fabricators, 206 Md. 195, 203, 110 A. 2d 671.

[***15]

   [*231] [**164] We think the proper rule is that the doctrine of anticipatory breach of a contract has no application to money contracts, pure and simple, where one party has fully performed his undertaking, and all that remains for the opposite party to do is to pay a certain sum of money at a certain time or times, and, under the circumstances of this case, this is as far as we need to rule, although some of the cases cited hold that the doctrine of anticipatory breach has no application whatsoever in unilateral contracts, or bilateral contracts that have become unilateral by full performance on one side. 

   The appellees cited to us the case of Precision Development Co. v. Fast Bearing Co., 183 Md. 399, 37 A. 2d 905. We fail to see that it applies to the facts of the present controversy.  There, the defendant purchased certain articles, consisting entirely of personal property, from the plaintiff.  The purchase price was to be paid by a payment of $10,000 within 30 days and the balance, according to the defendant, in five annual instalments on the first day of December of each calendar year.  The defendant agreed to execute and deliver its promissory note or notes for[***16] the balance of the purchase price secured by chattel mortgage on the goods sold. However, the defendant failed to pay the $10,000 within the prescribed time, did not have the property insured, and declined to execute the notes or chattel mortgage.  It accepted delivery of all the articles and disposed of portions thereof.  It was held that these facts furnished ample evidence upon which the jury could find that the contract had been breached, and, if so [*232] found by the jury, warranted a recovery of the full purchase price. Cf. Better v. Williams, 203 Md. 613, 102 A. 2d 750. In the case at bar, there was no agreement to secure the notes in any manner whatsoever, but the agreement of the appellants was a bald promise to pay money at a future date.

    The appellees relied heavily upon the cases of Hanna v. Mills (1839), 21 Wend. (N. Y.) 90, 34 Am. Dec. 216, Bowman v. Branson (1892), 19 S. W. 634 (Mo.), Bayne v. Morris (1863), 68 U.S. 97, and Bennett v. Dodgson (1955), 284 P. 2d 990 (Mont.).

   The Hanna and Bowman cases are greatly weakened, if not overruled entirely, by subsequent rulings in New York and Missouri in so far as they can be said [***17]to have permitted recoveries for anticipatory breaches of contracts for the recovery of money only.  (The Hanna case called for a note to be indorsed by a person satisfactory to the plaintiffs, which was tantamount to the giving of security.) Nichols v. Scranton Steel Co. (N. Y.), 33 N. E. 561, 566; Kelly v. Security Mut. Life Ins. Co. (N. Y.), 78 N. E. 584; Sulyok v. Penzintezeti Kozpont Budapest, 111 N. Y. S. 2d 75, and cases therein cited. Modified on other grounds, 107 N. E. 2d 604; Leon v. Barnsdall Zinc Co. (Mo.), 274 S. W. 699, 703. In Bayne v. Morris, the defendant was not only obligated to pay money, but to furnish a bond with penalty and surety; and in Bennett v. Dodgson the defendant agreed to give a "bankable" note.  A different rule applies when an agreement calls for the giving of a note with security from one that simply requires the giving of a note.

   [**165] The appellees argued further that a promise to give a negotiable note stands on the same footing as a promise to furnish security.  We find it unnecessary to decide this question; because we think the promise to give a note in this case contemplated a non-negotiable[***18] one.  The contract does not explicitly call for a negotiable instrument; it was to be paid over a rather extended period of time; the appellants had the option of extending the maturity date until January 1, 1963, by merely giving notice to one of the appellees; and the declaration filed by the appellees does not declare on a promise to give a negotiable instrument. Considering these facts and [*233] all of the circumstances surrounding the execution of the contract, we conclude that the note promised by the appellants to appellees was a non-negotiable one.

   From what we have said above, we conclude this case was prematurely brought, so the judgments must be reversed.

   This ruling renders it unnecessary to pass upon the other questions raised by the appellants and the appellees.

   We have not overlooked the fact that suit possibly could have been entered on December 7, 1956, if the suit were regarded as an action for a breach of the contract by the appellants in refusing to give the note within a reasonable time, as distinguished from an action for the value of the interests sold. Appleman v. Michael, supra, 43 Md. at page 281. If it had been treated as such, the appellees[***19] would have been limited to nominal damages, or such as they could have proved resulted from the failure to give the note, alone; but they were not entitled to recover the instalments named in the contract, which were not then due.

   Judgments reversed without prejudice to the appellees' right to institute further proceedings to enforce whatever rights they may have under the contract, appellees to pay the costs.

DISSENTBY: HAMMOND

 DISSENT: Hammond, J., filed the following dissenting opinion.

   I concur with the majority of the Court only as far as agreeing that the judgment should be reversed.  It is clear to me that the case should go back for decision, on the facts or as a matter of law as the question requires, as to (a) whether there had been a novation that eliminated the duty to pay what was sued for; (b) or if not, whether the contract had remained bilateral in part; (c) or if it had become wholly unilateral, whether the refusal to give the note (whether negotiable or not) did not support damages equal to the amount of the note because there had been such a frustration of the ends the agreement was expected to subserve that a breach calling for immediate full reparation should be[***20] recognized.  Essentially, I dissented because I could not bring myself to [*234] put the appellees out of Court on a factless appeal and at the same time to saddle Maryland needlessly with what I consider to be illogical and unsound law -- a doctrine that is more apparent than real, and one that has been repudiated by the ablest judges and scholars.

   The Court holds that the affidavit of defense first filed could not be "considered here" and did not raise below the issue of a genuine dispute as to a material fact because it was made on knowledge, information and belief.  The record discloses that the defendants' answer in opposition to the motion for summary judgment alleged (a) that the plaintiffs had failed to do certain things they had agreed to as part of the contract "particularly in the assistance in the operation of Ritchie Swift Homes, Inc."; (b) that the contract had "become an integral part of a subsequent agreement between the parties hereto, thereby modifying the terms of this agreement." The affidavit was made by each of the four defendants and their counsel.  It must be obvious, as was noted in White v. Friel, 210 Md. 274, that it may be assumed that the parties[***21] necessarily have personal knowledge of matters and agreements in which they were involved and that [**166] they are competent to testify with regard thereto. This being so, the answer and affidavit, although they were inartificial and inadequate, disclosed enough to show that there was a genuine dispute as to material facts, and the case should have gone to trial.  See Tellez v. Canton Railroad Co., 212 Md. 423.

   If it be assumed that the first answer and affidavit were insufficient to stay a summary judgment, the motion to strike the judgment and its supporting affidavits, filed within thirty days from the entry of the judgment, demonstrated by the detailed and elaborate recital of facts alleged to be known that if the defendants could support their allegations with proof they had an absolute defense to the suit against them because the plaintiffs had agreed by a new contract to allocate the sums due them under the first agreement (that were to be evidenced by the note) to another purpose.  Within the thirty day period provided by the rules the court has complete control of a judgment whether it be entered after trial, by default, by confession, or as a summary judgment. [***22]Where [*235] a meritorious defense to a judgment is shown within the thirty day period, justice requires that the judgment be opened for proof of the defense.  I think the trial court abused his discretion in refusing to allow the defendants to present the facts as to novation. If novation was not shown then the point of present breach by refusing to give the note in a reasonable time and the consequent allowance of damages equalling the amount of the note (perhaps discounted for early payment) could be decided.

   The majority of the Court, instead of deciding that summary judgment should have been refused, unnecessarily decided an issue that might never have presented itself, by adopting for the first time as the law of Maryland a dubious exception to the rule of immediate allowance of damages for anticipatory breach of contract.  That a right of action accrues on an anticipatory breach is firmly established.  Williston opposes the idea and while forced to admit that it is the law, argues that it should not be.  Perhaps because of his dislike of the doctrine, Williston urges that there should be no action for anticipatory breach of a unilateral contract or a bilateral contract[***23] that has been fully performed on one side.  5 Williston, Contracts (Rev. Ed.), Chap. XL.  The cases, however, do not support this view, holding generally that there may be. Roehm v. Horst, 178 U.S. 1, 44 L. Ed. 953; Development Co. v. Bearing Co., 183 Md. 399. Williston, in endeavoring to limit the doctrine of anticipatory breach, is consistent when he declares that the violation of the bare promise to pay money in the future in a contract that always was, or has become, unilateral can never give rise to immediate action.  He is apologetic for his view and, recognizing that it has been criticized, says in the work cited, Sec. 1328 at 3734, that since the whole doctrine of anticipatory breach "was founded on a confusion of a right of action with a defense, it seems undesirable to enlarge the boundaries of the doctrine." Corbin denies the validity of Williston's views and conclusions.  4 Corbin, Contracts, Chap. 54.  In Sec. 963, at 866, Professor Corbin says that "Although the author of this volume believes that the distinction should make no difference in the result reached, attention must be called to [*236] the fact that some courts have distinguished unconditional [***24]money debts from those in which the debtor's duty to pay is conditional on some performance yet to be rendered by his creditor, recognizing anticipatory breach in the latter cases and not in the former." See also Sec. 965, where the learned author shows that the argument that recognition of anticipatory breach of money contracts involves "acceleration of date of maturity" is fallacious.  To require immediate payment of sums that were to have been paid in the future does not give the promisee something he did not bargain for, if a discount that reflects the earlier date of payment is imposed.

   Judge Learned Hand agrees with Corbin.  See Equitable Trust Co. of New York v. Western Pac. Ry. Co., 244 F. 485, 501-502, [**167] where, speaking of the doctrine of anticipatory breach, he said: "Furthermore, if performance remains mutually executory, the doctrine still applies, even though the promise is only to pay money * * *.  If the doctrine has any limits, they only exclude, and that arbitrarily enough, cases in which at once the promisee has wholly performed, and the promise is only to pay money.  Assuming what I do not mean to admit, that it has such limits, they result because[***25] the eventual victory of the doctrine over vigorous attack * * * has not left it scathless." (Emphasis supplied.)

   In New York L. Ins. Co. v. Viglas, 297 U.S. 672, 80 L. Ed. 971, 976-977, the Supreme Court denied an insured the immediate recovery of the total of monthly disability benefits measured by his life expectancy on a holding that the insurance company had not actually and completely repudiated the contract.  Mr. Justice Cardozo pointed out that if one analyzes the cases one discovers the rationale of those "which have stated at times, though with needless generality, that by reason of the subject matter of the undertaking the rule applicable to contracts for the payment of money is not the same as that applicable for the performance of services or the delivery of merchandise.  * * * The root of any valid distinction is not in the difference between money and merchandise or between money and services.  What counts decisively is the relation between the maintenance of the contract and the frustration of the ends it was expected to subserve.  The [*237] ascertainment of this relation calls for something more than the mechanical application of a uniform formula[***26] .  To determine whether a breach avoids the contract as a whole one must consider what is necessary to work out reparation in varying conditions.  * * * The law will be able to offer appropriate relief 'where compensation is wilfully and contumaciously withheld.'" (Emphasis supplied.)

   Two of the three cases cited by the Court in the body of the opinion do not hold what the majority opinion holds; they merely repeat in discussion "in needless generality" what the majority opinion decides, and, on the facts before them, found a breach justifying full damages.  Only three of the cases cited in the footnote actually hold what the majority opinion holds; in the others the contract was held to be bilateral, or there was no breach.

   It is small wonder, then, that the author of the annotation in 105 A. L. R. 460, 461, on anticipatory breach of a bilateral contract which has been fully performed on one side, says: "From his own examination of the cases the writer is unable to state upon what substantial reason the limitation in question may be said to rest.  * * * one would hesitate to say that the question under consideration in this annotation has, with the possible exception of money [***27]contracts, become at all settled.  Yet the peculiar condition of the cases, as above outlined, the numerous assumptions and dicta, the apparent rulings on matters of anticipatory breach where in fact the breaches if any were actual, not anticipatory, have created at least an appearance of generally settled law." (Emphasis supplied.)

   The Maryland authorities would tend to refute rather than sustain the view of the majority.  In Appleman v. Michael, 43 Md. 269, 280, heavily relied on in the opinion, the holding was only that the suit there actually entered was one for the value of the goods sold and was not one for the breach of contract to execute the note that was to be given in payment for the goods.  Judge Miller, in his discussion, noted that there were various cases wherein it had been held that the vendor could bring a special action on the case for damages for [*238]breach of the contract to give the promised note "such damages as the jury might have thought reasonable for that breach of the contract." That is precisely what the plaintiffs sought in the case before us, damages for breach of the contract to give the note.  In Development Co. v. Bearing Co.[***28] , 183 Md. 399, which was cited above, the breached contract [**168] had become wholly unilateral and damages were allowed equal to the purchase price of the property sold.  Williston, again somewhat reluctantly, recognizes that the result reached in the Development case has been reached by a number of Courts. He says in 5 Williston, Contracts, Sec. 1471, that generally the price of property sold on credit cannot be recovered until the stipulated period of credit has expired, and continues: "Yet the failure to give the promised bill or note is surely a material breach, and the plaintiff's right to sue for the value of his goods has been recognized by some courts.  Indeed, since the measure of damages in an action on the contract to give a bill or note is the price of the goods, a sum which was to be the amount of the note, and since the price of the goods is also generally the test of their value in an action based upon rescission, the seller may ordinarily recover the equivalent of restitution." And in Sec. 1411 he says: "Where a purchaser of goods promises to give a negotiable instrument payable in the future for them, though aside from the doctrine of anticipatory breach[***29] the seller has not generally been allowed to sue for the price of the goods immediately if the buyer failed to give the negotiable instrument as agreed, an action will lie for breach of the special promise to give the negotiable instrument, and in such an action the damages are fixed by the amount of the agreed instrument." This Court's acknowledgment in the Appleman case of the right to sue for damages for the failure to give a note as agreed and its decision in the Development case that such damages equal the purchase price of the property sold, are judicial recognition that Williston's statements, just quoted, have been up to now the law of Maryland.

   It has certainly been the law of many States.  See the annotation in 12 L. R. A. (N. S.) 180-181, 182, where the author says that: "* * * the vendor cannot recover on the [*239] common count in assumpsit for goods sold and delivered until the credit has expired * * *.  He may, nevertheless, proceed immediately for a breach of the special agreement to give the notes", and concludes: "The measure of damages in an action brought by a vendor upon the purchaser's failure to execute notes as stipulated has been held to be[***30] prima facie the amount of the note (Aultman v. Daggs, 50 Mo. App. 280), but is more commonly stated to be the agreed price of the goods * * *." See Clarke v. Dill (Pa.), 11 A. 82 ("When the defendant refused to give the notes as per contract, the plaintiff had either of two remedies: He might treat the contract as broken, and sue for damages; or, on the other hand, he might elect to regard the contract as subsisting, and sue for the installments as they became due.") Kelly v. Pierce (N. D.), 112 N. W. 995; Standard Lumber Co. v. Deer Park Lumber Co. (Wash.), 175 P. 578, 582 ("For the breach of an agreement to execute a promissory note payable in the future, damages may be recovered presently, and the amount for which the note was to be given will be the prima facie measure of such damages."); Thomas Mfg. Co. v. Watson (Me.), 27 A. 176 ("While the plaintiff could not maintain for this breach an action of indebitatus assumpsit for goods sold and delivered, it could maintain an action of special assumpsit, counting on the written contract and its breach.  Hunneman v. Grofton, 10 Metc. (Mass.) 454, 459. The declaration in this action contains such a special count, [***31]and under it the plaintiffs are entitled to recover damages, which are to be assessed at the contract price, since the defendant cannot successfully dispute the full value of notes indorsed or signed by himself.")

   The majority acknowledge the principle just discussed by noting that the failure to give a promised security for the delayed payment of the price of property constitutes a present breach that permits current recovery of the purchase price. The opinion attempts to avoid the applicability of the doctrine to the present case by saying: "A different rule applies when an agreement calls for the giving of a note with security [**169] from one that simply requires the giving of a note." The appellees argue that the same rule applies where the note to be given [*240] is to be a negotiable note as where security is to be given, and I think it is clear that they are right.  The appellants themselves, both in their original brief and in their reply brief, say: "* * * the exception to the general rule prohibiting full recovery upon the breach of an instalment contract is limited to cases where a negotiable note or security of another sort -- and not the bare promise to[***32] pay money at a future time -- is the agreed exchange." Williston recognizes what the appellants concede when he says in Sec. 1411 of his work cited: "Where as part of an executory contract there is a promise to give security, and breach of this promise involves breach of the entire contract, the measure of damages is properly the value of the security to the promisee, and this is prima facie the amount of the sum to be secured.  Where the failure to give a negotiable instrument or security of a different kind involves the entire breach of a contract which would ultimately require payment of the sum for which the instrument was given or the security pledged, this measure of damages seems accurate * * *." (Emphasis supplied.) See Hanna v. Mills, 21 Wend. (N. Y.) 90; Bowman v. Branson (Mo.), 19 S. W. 634; Bennett v. Dodgson (Mont.), 284 P. 2d 990; Bayne v. Morris, 68 U.S. 97, 17 L. Ed. 495.

   See, too, American Mfg. Co. v. Klarquist (Minn.), 50 N. W. 243, 244, where the action was for the recovery of the unpaid part of the purchase price of personal property.  A part of this purchase price was to be evidenced by a promissory note and the defense was that the amount[***33] so evidenced was not yet due.  The Court said in answer: "* * * it is enough to say that the defendants admit that they refused to give their note therefor, in accordance with the terms of the written agreement, and because of that refusal the plaintiff is entitled to recover damages, which, prima facie, are measured by the amount for which the note was to have been given.  Barron v. Mullin, 21 Minn. 374." Barron v. Mullin was a case in which the defendant had failed to provide the security promised and the Court indicated that full recovery could be had because the failure to give the security was in itself failure of consideration.  The point is that the Minnesota Court, like the appellants and like Williston, equate the [*241] failure to give a promised note with the failure to give promised security.

   Many of the cases, in sustaining the right to sue for breach of contract to give a note, do not distinguish between a negotiable and a non-negotiable note. No apparent reason why there should be a distinction suggests itself.  If a negotiable note is requisite to support the action, it seems clear to me that the agreement in the case before us contemplated a negotiable[***34] note. Otherwise, there would be no point in giving a note at all because the terms of payment set out in the written agreement would have served as well as a non-negotiable note.  Further, it has been held that when the word "note" is used, ordinarily a negotiable note is meant.  American National Bank v. Marshall (Kan.), 253 P. 214; Road Improvement District No. 4 v. Southern Trust Co. (Ark.), 239 S. W. 8. The provision for extension of maturity of the contemplated note did not render it non-negotiable. The negotiable instrument law requires no more than that a negotiable instrument be payable "on demand, or at a fixed or determinable future time." Code, 1951, Art. 13, Sec. 21.

   One more ground for immediate recovery of full damages should be available to the plaintiffs if there was no novation. The cases recognize that if there has been a failure to pay one instalment of a note or one month's rent under a lease, coupled with an absolute repudiation of the whole obligation to pay that instalment and all future instalments, there is not an anticipatory breach but an actual present breach and, in such cases, the only question is the amount of the damages presently recoverable. [***35] Williston, [**170] Contracts, Vol. 5, Sec. 1317, and the Restatement, Contracts, Sec. 317, recognize this rule, although Williston, and presumably the Restatement, attempt to limit it to breaches of bilateral contracts.  Such a limitation has not always, or indeed generally, been recognized and I think no such limitation really exists.  4 Corbin, Contracts, Sec. 966, says that in a unilateral agreement failure to pay one instalment would not, without more, be a repudiation of the whole obligation to pay and adds that: "In other cases, however, accompanying the non-payment of one instalment there has been a definite repudiation of the [*242] balance.  Here, the cases that give judgment for damages for a partly anticipatory breach might well be followed." In Sagamore Corp. v. Willcutt (Conn.), 180 A. 464, there was a failure to pay an instalment of rent due under a lease, plus repudiation of the whole lease. The Court, assuming for the argument the validity of the "bare promise to pay money" rule, held that there was not merely an anticipatory breach but an actual breach plus repudiation, and that even though the contract had become unilateral and called[***36] only for the payment of money, all future sums due under the lease could be recovered.  See also In re Edgewood Park Junior College (Conn.), 192 A. 561; Hawkinson v. Johnston, 122 F. 2d 724. In Pollack v. Pollack (Tex. Com. App.), 46 S. W. 2d 292, the plaintiff conveyed a business and property to the defendant in return for a promise to pay him $5,000 a year for life.  After making a number of payments the defendant repudiated the obligation.  The plaintiff was allowed to recover on the basis of life tables at the present value of $5,000 a year for the life expectancy.  See also Universal Life & Accident Ins. Co. v. Sanders (Tex. Com. App.), 102 S. W. 2d 405.

   Many questions of fact and law cry for decision by a trial court under the pleadings of this case before an appellate court should declare and apply the law.  Many of them would obviate a decision on the point decided by the majority of the Court.  If that decision ever had to be made after trial on the merits, the case should not be decided, as it was, by the "mechanical application of a uniform formula", but only after consideration of the contractual rights and obligations of the parties under their agreements[***37] and of whether their failure to give the note and to make the payments were such a frustration of their contract purposes, so wilfully and contumaciously made, as to require immediate payment of the purchase price properly discounted.  I would remand the case for full trial. 

CHERRY et ux. v. SIEGERT et vir. 
No. 70, September Term, 1957
 
Court of Appeals of Maryland
 
215 Md. 81; 136 A.2d 754; 1957 Md. LEXIS 519

 December  17, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed, the appellees to pay the costs.

CORE TERMS:  partition proceeding, timet, quia, heirs, deceased, bill to quiet title, decree, cure, incompetent, irregularities, possessed, notified, cured, supplemental pleading, guardian ad litem, final decree, supplemental, unknown, cloud, order of publication, decree pro confesso, merchantable title, duly appointed, answered, summoned, seized, proper proceeding, latent defects, prospective purchaser, interested parties

COUNSEL: Thomas J. Curley for the appellants.

   George B. Woelfel for the appellees.

JUDGES: Brune, C. J., and Henderson, Hammond, Prescott and Horney, JJ.  Horney, J., delivered the opinion of the Court.

OPINIONBY: HORNEY

OPINION: [***4]

   [*82] [**755] This is an appeal from a decree of the Circuit Court for Anne Arundel County (Macgill, J.), declaring that Iva E. Siegert and Oscar Lynn Siegert, her husband, (the Siegerts), [*83] are seized and possessed of a good and merchantable fee simple title in and to a parcel of land situate in the Seventh Election District of Anne Arundel County, containing two acres, three roods and six perches of land, which Fritz J. Witt, (the deceased), and his wife acquired by deed from Thomas E. Atwell, dated January 14, 1925, saving and excepting therefrom two smaller parcels which were subsequently conveyed to others.

   On June 27, 1952, Robert Witt and other heirs of the deceased, as complainants, filed a bill for the sale of the real estate of which the deceased had died seized and possessed in lieu of partition in kind, against all unknown heirs of the deceased and two mortgagees, as respondents, being No. 10,511 Equity (the partition proceeding).  The unknown heirs were duly notified by order of publication. Presumably the mortgagees were duly summoned and answered. A decree pro confesso was obtained against the unknown heirs, and testimony was taken pursuant[***5] thereto.  During the taking of the testimony one of the witnesses named all of the heirs of the deceased who had been published against as unknown, but no effort was made to file a supplemental pleading, or otherwise amend the partition proceeding, on the assumption that the newly discovered heirs were bound by the order of publication. In due course a decree for sale was passed.  Trustees were appointed and after due notice of the sale, the property was sold to Iva E. Siegert.  After the payment of [**756]the court costs and the two mortgages there were insufficient funds to pay the funeral bill of the deceased's wife and there was never any money for distribution among the heirs of the deceased.

   The Siegerts, after acquiring title to the property offered it for sale and secured a prospective purchaser therefor, but he was advised by counsel or the title examiner that the title was defective because some of the interested parties to the partition proceeding were not properly notified. In an effort to cure the alleged title defect, the Siegerts, on December 3, 1953, filed a bill to quiet title against Iva Witt Ward and others, all of whom were heirs of the deceased, being No. [***6] 11,224 Equity (the bill quia timet or bill to quiet title).  All [*84] parties defendant were either properly summoned or notified by order of publication. Of the twenty defendants, nineteen failed to answer, and a decree pro confesso was passed against them.  The other defendant, Orion Larson, (the incompetent), the only person under disability, answered by a duly appointed guardian ad litem.  In due course testimony was taken and the court (Michaelson, J.) on May 13, 1955, passed a decree quieting the title to the property in question and removing the cloud thereon --

   "* * * so that * * * Iva E. Siegert * * * shall * * * hold said land and the title thereof free, clear and discharged of the claim or claims of any of the parties to this proceeding or by anyone claiming by, from or under them, as fully and effectually as though the * * * parties in this proceeding had been named and summoned in the original bill for the sale of the aforesaid realty in No. 10,511 Equity * * *."

   On August 1, 1956, the Siegerts, by a duly executed agreement of sale, sold the property to Leon Wilson Cherry and Nellie Jane Cherry, his wife, (the Cherrys), wherein they agreed to[***7] "convey the property by a good and merchantable title." Upon an application for a mortgage loan, the Cherrys were advised that title to the property was still defective.  The Cherrys declined to consummate the agreement of sale, and the Siegerts filed the bill for a declaratory decree which is the subject of this appeal.

   When the partition proceeding was filed the incompetent, one of the heirs of the deceased, was an inmate of Spring Grove State Hospital.  He was not then and has never been adjudicated to be an incompetent by either a jury or a court.  In the partition proceeding he was made a party plaintiff without being identified as non compos mentis.  He did not sue by a next friend and no guardian ad litem was appointed for him in that proceeding.  In the bill quia timet the incompetent was made a party defendant and was duly summoned by personal service, and by leaving a copy of the writ with the superintendent of the hospital in which he was confined.  [*85] In that proceeding a guardian ad litem was duly appointed for him, and the guardian filed the usual answer on his behalf.

   In effect the chancellor by his decree declared that the bill to quiet title [***8]cured the defects in the partition proceeding so that the Siegerts are in fact seized and possessed of a good and merchantable title to the property in question.  We agree.

   Assuming, without deciding, as did the parties and the chancellor, that the defects in the partition proceeding were fatal, the only question for us to decide is whether the bill to quiet title was a proper proceeding to cure the defects in the partition proceeding.

   The Cherrys question the effectiveness of a decree in a bill quia timet to quiet title against the heirs who were not specifically named in the preceding partition proceeding so as to dispose of their interests in the property sold for partition.  Ordinarily, defects in a proceeding should be cured by a supplemental pleading before final decree or by a supplemental bill after such final decree. But we believe that there is no merit to the contention of the Cherrys that the bill quia timet was not a proper proceeding to cure the defects in the partition proceeding. [**757] One office of a supplemental bill is to cure irregularities or defects discovered in an original bill, and we see no reason why a bill quia timet should not be used[***9] for that purpose when the irregularities or defects concern the sale of real property.  Although the limits of the application of the remedy afforded by a bill quia timet are not clearly defined, it rests on the broad principle of relieving a party and his title from some claim or liability which may, if enforced, entail serious loss. Bouvier (Baldwin's Ed., 1934), p. 127.  It is quite possible that if Code Supp. (1957), Art. 16, sec. 131A (Quieting Title), had been in effect when the bill to quiet title was filed, there would not have been any doubt of the efficacy of such a bill to cure the defects in the partition proceeding. We see no reason why there should be any doubt even in the absence of such statute since it appears to be for the most part merely declaratory of the law as it existed prior to June 1, 1955.  We believe that actions to quiet title should not be hampered by needless anomalies, and that the marketability [*86] of a title should be encouraged and protected whenever it is possible under the law.  In Homewood Realty v. Safe Deposit & Trust Co. (1931), 160 Md. 457, 154 A. 58, this Court reviewed fully its prior decisions and other authorities with[***10] respect to bills quia timet.  For our purpose here it will suffice to quote a brief part of the opinion in that case:

   "The principle upon which chancery acts in such cases is that the value of property in land lies in its marketable title and the right to its quiet possession, and that sometimes justice requires that the owner should not have its worth materially depreciated by the chilling effect, for an indefinite time, of an invalid, although not actively asserted, claim, which, if enforceable, would cause him a loss; and so, he is entitled to have the questions affecting his rights forthwith determined by having the claim immediately established and enforced or his estate made secure against its operation.  In this way bills quia timet anticipate and guard against future and contingent injuries and assure the estate of the owner."
 
In the Homewood Realty case, as in this case, no adverse claim had been made until a prospective buyer discovered what he surmised was a defect in the title to the property he had agreed to purchase.  Therefore we think that the contentions of the Cherrys (i) that an owner of real property may not resort to a bill to quiet[***11] title until his title is threatened by invalid and unfounded claims against which he had no adequate remedy at law, and (ii) that the claim of the Siegerts was neither adverse nor unfounded but clearly legal, are not valid.  On the contrary, we believe that when the Siegerts alleged in effect that the competing claims of some of the heirs of the deceased, including the incompetent, were adversely affecting their rights, they thereby showed the existence of a threatened cloud on their title and brought their case within the full scope of the remedy afforded by a bill quia timet.

   We reiterate that the bill to quiet title cured the latent defects in the partition proceeding so that the Siegerts are in fact [*87] seized and possessed of a good and marketable title to the property in question.

   Decree affirmed, the appellees to pay the costs. 

GLEN BURNIE IMPROVEMENT ASSOCIATION, INC. et al. v. STATEAPPEAL BOARD et al. 
No. 154, October Term, 1956
 
Court of Appeals of Maryland
 
213 Md. 407; 132 A.2d 451; 1957 Md. LEXIS 599

 May  30, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  license, judicial review, church, general public, residents, special damage, protestant, alcoholic, beverages, demurrers, statutory provision, special injury, conferred, injunction, differing, feet, residential, playground, administrative action, entitled to relief, special interest, property rights, inherent power, special right, public school, issuance, enjoin, infringement, chancellor, capricious

COUNSEL: Lawrence B. Coshnear, with whom were Louis M. Strauss and David Friedman on the brief, for the appellants.

   Alexander Harvey, II, Assistant Attorney General, with whom was C. Ferdinand Sybert, Attorney General, on the brief, for the State Appeal Board.

   Theodore G. Bloom, with whom were Albert J. Goodman and Wilbur R. Dulin on the brief, for Mr. Davis.

JUDGES: Brune, C. J., and Collins, Henderson, Hammond and Prescott, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*409] [**452] This is an appeal from a decree of the Circuit Court for Anne Arundel County dismissing appellants' bill of complaint.  The complainants and appellants[***4] are Glen Burnie Improvement Association, Inc. ("Improvement Association"), Thomas Brayshaw and Adeline Brayshaw, his wife (both referred to below as "Brayshaw").  Thomas Brayshaw and others were protestants at a hearing on November 15, 1955, before the Board of License Commissioners of Anne Arundel County ("License Commissioners"), which was held to consider an application for a "Class LTM and Sunday License" for the sale of alcoholic beverages sought by G. Nelson Davis ("Davis").  The License Commissioners, after the hearing, passed an order on November 22, 1955, granting the license, and an appeal was then taken to the State Appeal Board ("Appeal Board") by Thomas Brayshaw and some twelve other individuals, pursuant to Code (1951), Article 2B, Section 168.  A hearing on that appeal was held on January 12, 1956, and on January 19, 1956, the Board affirmed the decision of the License Commissioners.  Shortly thereafter, on February 7, 1956, the appellants filed their bill of complaint in the Circuit Court for Anne Arundel County, in Equity, in which they charged that the action of the Board [*410] in upholding the decision of the License Commissioners to grant Davis a license to [***5]sell alcoholic beverages was arbitrary, capricious and unlawful, and they sought a judicial review of the actions of the License Commissioners and the Board, a reversal of the action of the License Commissioners and an injunction to enjoin the issuance of the above license to Davis.  The appellees demurred to the bill of complaint and the court sustained the demurrers on the ground that the appellants had failed to allege "special damage sustained by them differing in kind and character from that which might be sustained by the general public, and, therefore, they have no standing in a court of equity." This order granted the complainants leave to amend but they filed a "petition" stating their refusal or inability to amend and suggesting that the court make a final order on the bill, from which they might appeal.  The Chancellor thereupon entered an order dismissing the bill, and the complainants appealed.

   The complainants filed as an exhibit with their bill a transcript of the testimony at the hearing before the Appeal Board, (though we find no reference to this exhibit in the bill).  The case is presented on demurrers, and we shall not undertake to evaluate the testimony, but will[***6] assume for present purposes that the allegations of the bill are correct which assert that the action of the Appeal Board in affirming the License Commissioners was arbitrary and contrary to law.  The question then presented is whether or not the appellants have alleged sufficient facts in their bill of complaint to entitle them to maintain their suit in a court of equity to enjoin the unlawful grant of a license.

   The specific violations of the applicable liquor licensing law (Code (1951), Article 2B, Section 44 (a)) which the appellants assert are: (1) that the so called "grandfather clause" did not authorize the licensing of the premises in question because a license issued prior to June 1, 1939, had covered a building next door, but not the same premises; and (2) that a new license without benefit of the grandfather's clause [**453] would contravene the statute, since the premises for which the license was granted are within a thousand feet of a church (in fact, of three churches) and of a public school.

   [*411] The appellants seek to support their standing to maintain this suit in equity by certain provisions of Article 2B of the Code (1951), which deal with the right[***7] to be heard by the License Commissioners (Section 57 (a)) and the right to appeal to the Appeal Board (Section 168).  This involves them in some difficulties.  Section 57 (a) states that "any person" shall be heard by the License Commissioners; but, for an appeal to the Appeal Board, Section 168 requires the joinder of "not less than ten citizens, voters and real estate owners, residing in the precinct or voting district in which the place of business is located or proposed to be located." (On the other side of the picture, the same Section permits an applicant for a license, or a licensee seeking a renewal to appeal alone.) Thus, under Section 168, the statutory right to be heard conferred by Section 57 (a) upon the Church which the Brayshaws purport to represent and upon the Improvement Association is cut off at the level of the local board, the License Commissioners; and the rights of individual protestants to appeal to the Appeal Board are made subject to important numerical and residential requirements.  Cf. Brashears v. Lindenbaum, 189 Md. 619, 56 A. 2d 844, involving similar provisions of Section 166 of Article 2B, dealing with appeals to courts in those political subdivisions [***8]of the State where judicial review of the action of Liquor License Commissioners is provided for by statute.  In the instant case the only appeal provided for is to the Appeal Board.  Section 166 (a) of Article 2B states that the decision of the State Appeal Board shall be final.

   Accordingly, we find nothing in the statutes applicable to the present case which suggests any intention on the part of the General Assembly to confer upon persons who were or might have been protestants at the hearing before the License Commissioners any right, and certainly no special right, to judicial review. On the contrary, the complete absence of any statutory provision for judicial review applicable to the present case seems to make it clear that whatever rights to such review the appellants may possess are no greater than those enjoyed generally by any persons who may be aggrieved by unlawful administrative action. Those rights are themselves limited, as we shall point out below.

   [*412] It is true that even in the absence of a provision for judicial review of the action of an administrative agency, in this State, "Courts have the inherent power, through the writ of mandamus, by injunction, [***9] or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion, where discretion is clearly conferred." Hecht v. Crook, 184 Md. 271, 280-281, 40 A. 2d 673. See also: Weer v. Page, 155 Md. 86, 141 A. 518; Federico v. Bratten, 181 Md. 507, 30 A. 2d 776; Heaps v. Cobb, 185 Md. 372, 45 A. 2d 73; Mahoney v. Byers, 187 Md. 81, 48 A. 2d 600; Cromwell v. Jackson, 188 Md. 8, 52 A. 2d 79. All of these cases are, however, distinguishable from the instant case because in each one the complaining party had a special interest in the object in the suit differing in character and kind from that of the general public.

   This brings us back to the crux of the case, for there is still the question of whether or not the complainants have shown that they will suffer any special injury or damage different in character and kind from that which the general public will suffer from the illegal action in question.  In the absence of such a showing, the complainants are not entitled to relief. [***10] [**454] See Houck v. Wachter, 34 Md. 265; Crook v. Pitcher, 61 Md. 510; Davidson v. Baltimore, 96 Md. 509, 53 A. 1121; Turner v. King, 117 Md. 403, 83 A. 649; Hamilton Corporation v. Julian, 130 Md. 597, 101 A. 558; Bauernschmidt v. Standard Oil Co., 153 Md. 647, 139 A. 531; Cook v. Normac Corp., 176 Md. 394, 4 A. 2d 747; Ellicott v. Baltimore, 180 Md. 176, 23 A. 2d 649; Weinberg v. Kracke, 189 Md. 275, 55 A. 2d 797; Crozier v. Prince George's County, 202 Md. 501, 97 A. 2d 296; Loughborough Development Corp. v. Rivermass Corp. et al., 213 Md. 239, 131 A. 2d 461. The first two of these cases involved actions at law for damages for the obstruction of highways.  In some of the others the rule here stated was recognized, but there was a sufficient showing of special damage as in the Hamilton Corporation and Weinberg cases (nuisances impairing value) and in the Crozier case (impairment of value of nearby property [*413] through a change in the type of residential zoning).  The complainants concede that they have not alleged the infringement of their private property rights. As to the Brayshaws, they allege only that they are[***11] residents of the community and that they "represent" one of the churches within a thousand feet of the premises involved.  Why the Church itself is not a party is not stated.  As to the Improvement Association, the bill alleges that it is a community association supported by the residents of Glen Burnie, that it acts for and on behalf of residents of Glen Burnie, "and promulgates and sponsors the improvement of streets, sidewalks, playgrounds, Boy Scout activities and communal interest * * * directly related to the health, welfare and safety of said community and its residents and is the owner of a large carnival ground, Boy Scout Headquarters and playground across the road from the property * * * sought to be licensed for the sale of alcoholic beverages * * *." From these allegations, the complainants argue that it is "self-evident" that they "have a substantial interest to protect, to wit, attending the church of their choice on Sunday, sending their children to the public school and insuring for their children a clean, wholesome and safe place to play -- without the intrusion of the atmosphere and disorderliness of a saloon." None of these arguments seem available to the Improvement[***12] Association, a corporation.  Its interest is not established by whatever may be the interest of its members (Windsor Hills Improvement Ass'n v. City of Baltimore, 195 Md. 383, 73 A. 2d 531), and no special damage to either the corporate or individual complainants is shown which differs in character and kind from that which might be sustained by the general public. For that reason the learned trial judge sustained the demurrers of the appellees.  The leave to amend which he granted was declined by the complainants.  We take it that they have stated their full case.  We agree with the trial judge that they have not shown any special injury or damage different in character and kind from that which might be sustained by the public generally, and hence conclude that he was correct in dismissing the bill.

   The appellants have not sought to press any claim as taxpayers and state that they do not "seek judicial review as taxpayers per se."

   [*414] In view of our holding that the appellants have not shown special damage entitling them to relief in equity, it is unnecessary to pass upon the Appeal Board's claim of the State's immunity from suit without its consent.

   It follows[***13] from the above views that the order dismissing the bill should be affirmed.

   Order affirmed, with costs. 

HALL v. STATE 
No. 186, October Term, 1956
 
Court of Appeals of Maryland
 
213 Md. 369; 131 A.2d 710; 1957 Md. LEXIS 594

 May  13, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  gun, maid, assault, confession, door, bed, murder, attacked, upstairs, locks, inadmissible, corroborate, afternoon, bedroom, tactics, beyond a reasonable doubt, identification, fingerprint, specific intent, Criminal Law, committed crime, wanted to get, apprehended, borrowed, crowbar, stolen, fixing, prints, fist, probative force

COUNSEL: Weldon Leroy Maddox for the appellant.

   E. Clinton Bamberger, Jr., Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Brune, C. J., and Collins, Hammond and Prescott, JJ., and Horney, J., Chief Judge of the Second Judicial Circuit, specially assigned.  Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*371] [**711] The appellant, Charles Bradley Hall, appeals from a conviction for assault with intent to kill and murder Steve Foundas in a case tried before the trial judge without a jury.

   Mr. Foundas testified that when he returned to his home at 94 Franklin Street in Annapolis on the night of February 16, 1953, he found it open and all of his clothes and possessions, including $1,350.00 in cash stolen and the lights and his telephone disconnected.  He left the house about 8 A. M. the next morning, February 17th, and returned in the afternoon and put safety locks on the doors and let the maid in to clean. [***5] Previously that day he had borrowed a gun from Mr. Eddie Leonard which he gave to the maid. He told her to put it on the bed in his bedroom. The gun was at that time offered in evidence, without objection.  He then went to his garage at 117 Conduit Street and stayed there until 5:30 P. M.  He then returned home, took the maid to West Annapolis, came back and ate his supper at the Royal Restaurant on West Street.  He finished eating about 6:15 P. M. and, although he was frightened, he returned home.  He opened the door, went upstairs to the bathroom, went in his room, snapped on the light and saw "him" with a black handkerchief "tied up like here".  He started out of the room but before he got out "he" hit him with a bar which "he" had in "his" hand and he does not remember what happened after that.  The sum of $450.00 was missing from his pocketbook.  When asked: "Did you recognize him?", he answered: "Certainly." He remembers that he was hit twice but he was injured in five places.  He had known Hall about a year previously.  He had worked for him two or three days when he lived in Bay Ridge and at that time Hall stole a gun from him.  When asked whether he got "a [*372] [***6] good look at what the person had in his hand whom you identified as Hall", he answered: "No sir, because he just looked that a way, had the back of his neck to me." He did not get a good look at him.  He was in the hospital six or seven weeks.  The State then offered in evidence the hospital record and charts showing the extent of Foundas' injuries.  When this was offered, the attorney for the defendant stated: "No objection."

   Lieutenant Howes, of the Annapolis Police Department, testified that he went to Foundas' home on February 17, 1953.  The first call came to the Police Department at 12:02 A. M. and the second call at 7:01 P. M.  He responded to both calls.  In response to the 7:01 call he rapped on the door and Foundas tried to let him in but could not get the front door open.  He looked through the window and saw the rugs "all messed up" in the hallway.  He was then let in the side door. When he got inside he saw that Foundas' eye was swollen and blood was running from his face and head.  On the second floor, at the head of the stairway, was a pool of blood, Foundas' diamond wristwatch, and a crowbar. This crowbar, after identification by Lieutenant Howes, was offered in evidence [***7]without objection.  He then took Foundas to the Annapolis Hospital.

   Captain Musterman, of the Annapolis Police Department, testified that he arrived at the Foundas' home shortly after 7:15 P. M. on February 17, 1953.  He found that the light bulbs in the hall, the middle room, and in Foundas' bedroom had been unscrewed.  He also found three sets of latent fingerprints on the chifforobe in Foundas' room.  After the prints were powdered and photographed and lifted, they were sent to the Federal Bureau of Investigation with a list of suspects other [**712] than the defendant, Hall, for examination.  Hall's name was not submitted at that time as a suspect.  Later on he found out that Hall had been on parole from the State of California.  He wrote to the Parole Board at Sacramento and was advised that Hall was on parole but they did not know where he was at that time.  He was later advised that they had Hall's fingerprint card and that he had been apprehended in Fresno, California, on February 28th.  He [*373] requested "an identification man at Federal Bureau of Investigation" to check Hall's prints with the latent prints which he had sent them.  He received a report that one[***8] of the fingerprints was identified as that of Charles Bradley Hall, one of Foundas, and one of the maid. Through the sheriff at Fresno and through the Federal Bureau of Investigation it was found that at the time Hall was apprehended he had three guns and clothes in his possession.  The three guns were sent to him by the sheriff in Fresno by express.  One of the guns was the same one that Foundas had obtained on February 17th from Leonard's Sporting Goods store and which Foundas had taken to his home, given to his maid, and which the maid had placed upstairs in the bedroom. The number on the gun corresponded with the number of the gun obtained by Foundas from Mr. Leonard.  Captain Musterman further testified that he first saw the defendant on October 16, 1956, at San Quentin Prison in California. With another officer he brought Hall back to Annapolis, arriving on October 18th.  On the 19th Hall was fingerprinted and his picture taken.  The next day Hall was brought to police headquarters.  He did not promise Hall anything, did not threaten him in any way, and did not offer him any inducements.  Hall said he would rather not give a statement, he would rather see his attorney first. [***9]However, he did give an oral statement.  Captain Musterman then related without objection what Hall told him.  He said he had been in Annapolis and "committed crime".  He had attacked Foundas and he wanted to get it over with as soon as possible.  He said he had come to Annapolis from California "to work Mr. Foundas over".  Previous to his leaving to go in the service he was employed by Foundas at Bay Ridge.  Foundas had accused him of stealing his wallet with $1,500.00 in it.  This wallet was later returned.  He said a friend of Foundas, who was with him at that time, threatened to beat him and Foundas had fired him.  He "had a vengeance against Foundas and wanted to work him over".  That was the reason he came to Annapolis where he registered at a hotel in the name of Charles Bradley King.  The hotel records could not be checked because the management had been changed.  [*374] The first time he broke into the house Foundas, the maid, and a friend of Foundas, Mr. Apostol, who was fixing the locks on the doors, were in the house.  The maid came upstairs and put the gun on the bed. Hall stated that he was in the room upstairs while they were in the house.  When the maid came[***10] in the bedroom she put the gun on the bed, "frizzed" her hair before the mirror and then left.  As soon as she left he put the gun in his pocket and after Foundas, Mr. Apostol, and the maid left, he then left.  He said on the second visit he entered the house through the cellar entrance.  He attacked Foundas with his fist. He denied taking any money from him.  He admitted that at the time he was apprehended in Fresno he had $1,300.00 which he had earned.  The clothing and the rest of the articles he had were kept by the sheriff in Fresno.

   The attorney for the defendant in this Court did not represent him in the trial below.  No objection was made below by the defendant or his attorney to the admissibility of any of the aforesaid evidence.  Among the matters which the defendant's attorney contends should not have been admitted in evidence were the gun, the crowbar, the hospital records and the report on the fingerprints. He contends that other evidence was too vague and indefinite to be admitted and, if these inadmissible matters had not been admitted, [**713] there was not sufficient evidence to convict the defendant.

   It is clear that a waiver as to inadmissible evidence operates[***11] with full effectiveness and the result is that evidence so admitted is given the same probative force as if it were competent.  Martin v. State, 203 Md. 66, 73, 98 A. 2d 8, and cases there cited.  This case was tried on November 5, 1956. Rule 9 of the Court of Appeals, in effect at that time, provided that this Court shall not decide any point or question which does not plainly appear by the record to have been tried and decided by the court below.  Grammer v. State, 203 Md. 200, 214, 100 A. 2d 257. In Madison v. State, 200 Md. 1, 8, 10, 87 A. 2d 593, where the defendant had been convicted of murder and sentenced to death, the contention was made that by reason of non-action certain serious errors were made and inadmissible matters were admitted in evidence, [*375] and these errors should be corrected without regard to the rules of law ordinarily governing appeals.  This Court was there told that the failure to raise questions below, which were raised in this Court, was due to the fear of prejudicing defendant before the jury by objections.  Judge Markell quoted Rule 9 aforesaid and stated: "We are aware that some lawyers include such 'taboos' in their 'trial tactics' [***12] -- and others, who have attained reputation as trial lawyers, make any objections they deem substantial and press them to the end.  We are, however, without authority to review errors in trial tactics of defense counsel or to speculate as to possibilities that different tactics might have produced a different result.  * * * Whatever 'plain error material to the rights of the accused' may include, it does not include bad guesses by counsel whether or not to object to anything done or left undone by the court."

   Assuming, without deciding, that these so-called inadmissible matters should not have been admitted in evidence we are of opinion that even without these there was relevant admissible evidence which would properly sustain a conviction.  If the assault was committed under circumstances such that, if death ensued, the crime would have been murder in either the first or second degree, it is not necessary to sustain such a charge that a specific intent to take life should be shown.  Webb v. State, 201 Md. 158, 162, 93 A. 2d 80; Davis v. State, 204 Md. 44, 49-51, 102 A. 2d 816.

   In evidence is the statement from the accused.  If it be considered a confession it appears that[***13] a proper foundation was laid.  The evidence necessary to corroborate a confession need not establish the corpus delicti beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the trier of fact beyond a reasonable doubt that the crime was committed and that the defendant committed it.  Wood v. State, 192 Md. 643, 650, 65 A. 2d 316. Appellant contends that this was merely an admission which is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt but is of itself insufficient to authorize a conviction.  Delnegro v. State, 198 Md. 80, 87, [*376] 81 A. 2d 241. In this claimed admission Hall said he had been in Annapolis and "committed crime".  He had attacked Foundas and wanted to get it over with as soon as possible.  He had come to Annapolis to "work Foundas over".  He went to the house the first time and found Foundas, the maid and Mr. Apostol there.  Mr. Apostol was fixing the locks on the doors. The maid came upstairs and put the gun on the bed and when she left he took the gun. On the second visit he attacked[***14] Foundas with his fists. Corroborating this statement is Foundas' testimony that he brought the maid to the house to do the cleaning and that he had borrowed a gun that afternoon and gave it to the maid to put on the bed in the bedroom. The safety locks were put on the doors that afternoon. Defendant had worked for [**714]Foundas before and at that time had stolen another gun from him. Although Foundas' identification of Hall cannot be said to be of the most definite character, he testified that he would and did recognize his assailant.

   Rule 7 (c), Criminal Rules of Practice and Procedure, provides that when a criminal charge is tried by the court sitting without a jury, upon appeal this Court will not set aside the verdict of the trial court on the evidence unless clearly erroneous, and due regard shall be given to the opportunity of the trial judge to judge of the credibility of the witnesses.  Stokes v. State, 202 Md. 166, 170, 95 A. 2d 871. Whether the defendant's statement to Captain Musterman was a confession, which we think it was, or admission, there was evidence to corroborate some of the details.  There is no doubt the crime was committed and that Foundas was[***15] severely beaten.  We cannot say that the trial judge was clearly wrong in finding that Hall without justification or excuse and with intent committed the assault upon Foundas and that, if Foundas had died, Hall would have been guilty of murder.

   Judgment affirmed, with costs. 

HODGES v. HODGES 
No. 158, October Term, 1956
 
Court of Appeals of Maryland
 
213 Md. 322; 131 A.2d 703; 1957 Md. LEXIS 588

 May  10, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree reversed, with costs, insofar as it grants a divorce to the husband, and cross-bill of complaint dismissed.

CORE TERMS:  divorce, marital relations, corroboration, desertion, abandonment, sofa, living room, bedroom, matrimonii, vinculo, decree, slept, sexual intercourse, corroborated, spouse, corroborative, farm, decree of divorce, irrevocable, cross-bill, permanent, custody, sleep, separation agreement, unwillingness, conversation, separately, evening, occupy, couch

COUNSEL: Eugene M. Childs, with whom were Childs & Bald on the brief, for appellant.

   David E. Betts, with whom were Betts, Clogg & Murdock on the brief, for appellee.

JUDGES: Brune, C. J., and Collins, Henderson, Hammond and Prescott, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*323] [**703] Ethel V. Hodges, the plaintiff and cross-defendant below, appeals from a decree of the Circuit Court for Anne Arundel [**704] County awarding the appellee, Louis O. Hodges, Jr., an absolute divorce.

   The appellant on September 17, 1955, filed a bill for a divorce a mensa et thoro on the ground of cruelty and for temporary and permanent alimony, the custody of the minor children of the parties, Louis and Nancy who are age eighteen and eight years respectively, and for funds for their support.  The appellee filed an answer and cross-bill. By the latter he sought a divorce a vinculo matrimonii on the ground of desertion and the custody of the children. The Chancellor dismissed the appellant's bill and granted the appellee an absolute divorce, but awarded the custody of, and support for, the children to the appellant. [***4] From the decree granting the divorce a vinculo matrimonii the wife appeals.

   The appellant's first contention is that a constructive desertion amounting to abandonment has not been established [*324] since there is no testimony of a refusal to have marital relations and, furthermore, if there is such testimony it is not corroborated.

   The appellee testified that in August or September, 1953, the appellant moved out of the bedroom which they had been occupying and slept on the sofa in the living room so as to avoid marital relations with him; that thereafter he had no marital relations with her although he had occasionally desired them; that several times he questioned her as to why she stayed in the living room at night and reminded her that "no one ever made you get out of the bedroom upstairs". He admitted that she never locked him out of her bedroom until after the start of the divorce proceedings.

   The appellant testified that she moved out of the bedroom in September, 1953, to sleep on the sofa in the living room, because it helped her arthritic back; that they had not engaged in marital relations for a substantial period of time, possibly for one or two years, and[***5] that during the time she slept on the sofa neither asked the other to resume marital relations.

   Louis O. Hodges, III, the elder child of the parties, stated that his mother slept on the sofa but he had no knowledge of whether or not his parents had marital relations.

   William K. Hodges, brother of the appellee, testified that the appellant came to see him in 1954 and consulted him about securing legal counsel for a divorce or separation from the appellee.

   Code (1951), Article 16, Section 33, provides that a divorce a vinculo matrimonii may be granted:

   "* * * when the court shall be satisfied by competent testimony that the party complained against has abandoned the party complaining, and that such abandonment has continued uninterruptedly for at least eighteen months, and is deliberate and final, * * *."

   It is well recognized that a permanent and irrevocable refusal, without proper cause, of one spouse to have sexual intercourse with the other constitutes an abandonment under [*325] the above quoted statute.  Fleegle v. Fleegle, 136 Md. 630, 110 A. 889; Martin v. Martin, 141 Md. 182, 118 A. 410; Klein v. Klein, 146 Md. 27, 125 A. 728; Crumlick v. Crumlick[***6] , 164 Md. 381, 165 A. 189; Lent v. Lent, 202 Md. 240, 96 A. 2d 14; Schwartzman v. Schwartzman, 204 Md. 125, 102 A. 2d 810.

   In Mower v. Mower, 209 Md. 413, 417, 418, 121 A. 2d 185, this Court said: "* * * It is understood, of course, that the mere fact that a husband ceases to occupy the room in which he and his wife have been accustomed to sleep and thereafter occupies alone another room in the house is not necessarily a withdrawal of marital right from the wife which constitutes desertion within the meaning of the statute.  It is only where it is without good reason that the husband leaves his wife and permanently refuses to have intercourse with her that the occupancy of [**705] another room constitutes desertion as a ground for divorce. Ruckle v. Ruckle, 141 Md. 207, 118 A. 472; Wysocki v. Wysocki, 185 Md. 38, 41, 42 A. 2d 909; Jones v. Jones, 186 Md. 312, 46 A. 2d 617. Moreover, the law is clear that the complainant who seeks a divorce has the burden of proving the allegation that the defendant refused to fulfill the marital duty."

   Code (1951), Article 35, Section 4, provides, among other things, that no decree of divorce shall be granted upon the[***7] testimony of the plaintiff alone, "* * * but in all such cases testimony in corroboration of that of the plaintiff shall be necessary."

   In the instant case, we find it difficult in the first place to interpret the husband's own testimony as being evidence of a permanent and irrevocable refusal by the appellant to have marital relations; and the wife's testimony is in flat contradiction of such an interpretation.  Yet, if, as the Chancellor found, we accept the husband's testimony as showing such a refusal on the wife's part, we are immediately confronted with the problem of corroboration of his testimony.

   It has often been stated by this Court that slight corroboration is sufficient if the facts preclude any possibility of collusion.  Kelsey v. Kelsey , 186 Md. 324, 46 A. 2d 627; Harp v. Harp, 198 Md. 485, 84 A. 2d 895; Lent v. Lent, supra. [*326] Corroboration cannot, however, be dispensed with.  We have clearly in mind the rule that the findings of fact of the trial judge are not to be set aside unless plainly erroneous.  In this case the Chancellor was of the opinion that the husband's testimony "appears sufficiently corroborated." His opinion on this point seems[***8] to have been founded primarily, if not wholly, upon two things: (1) that the son corroborated the fact that the wife slept on the sofa in the living room; and (2) that more than six months after she had begun sleeping there, she had talked with the husband's brother about getting in touch with a lawyer with a view towards seeking a divorce or separation.

   As to the first of these items, it is to be noted that the son had no knowledge with regard to the discontinuance of marital relations or the willingness or unwillingness of either spouse to resume them.  Corroboration must extend to every element necessary to justify the relief sought.  Kelsey v. Kelsey, 186 Md. 324, 328, 46 A. 2d 627, supra.  As was said in Owings v. Owings, 148 Md. 124, at 127, 128 A. 748, "The admitted fact that they [the spouses] were occupying separate bedrooms does not substantiate the charge that intercourse was refused.  * * * The statement of the appellant to that effect required corroboration." See also Mower v. Mower, supra, and Wysocki v. Wysocki, 185 Md. 38, 42 A. 2d 909.

   As to the second item, the conversation seems inconclusive.  It took place apparently more than six months[***9] after the wife had begun to sleep on the sofa or couch in the living room. It also followed by perhaps two months an effort made by the husband's brother (at the suggestion of the husband) to try to improve their domestic situation.  At the time of that effort nothing seems to have been said about a divorce. The date of the conversation in the spring of 1954 in which divorce was mentioned does not appear clearly, and there is considerable doubt as to whether it occurred eighteen months before the husband filed his cross-bill. Cf. Kershaw v. Kershaw, 195 Md. 307, 73 A. 2d 223. At best, it seems to throw very little light on the wife's willingness or unwillingness to have marital relations with the husband in August or September, 1953.

   [*327] The evidence seems to show mutual indifference towards marital relations rather than any desire therefor on the part of one and refusal on the part of the other.  In this respect the case appears quite different on its facts from Lent v. Lent, supra, which [**706] was one of the cases cited by the Chancellor in support of his view that there was sufficient corroboration.

   In Kershaw v. Kershaw, supra, which was the other[***10] case cited by the Chancellor on this point, the wife and the husband each sought a divorce from the other on the ground of desertion. The trouble that led to the litigation began with an altercation one day between the husband and his son while they were getting in hay.  It continued into the evening when the daughter and son-in-law came over to the farm. What part the wife took in it is not clear, but at the end of the evening the husband asked the wife to fix another room for him as he wished to leave the common bedroom. She could not do this at once, but did so a day or two days later.  About four or five weeks later the husband and wife entered into a separation agreement. Although this Court expressed the view that the facts showing desertion by the husband through his refusal to continue marital relations were clearly established and were corroborated, this was a comment not necessary to the decision.  This Court reversed a decree in favor of the husband based upon the wife's physical departure from the farm shortly before it was sold pursuant to the separation agreement. The actual holding was "that these parties entered into an agreement to live separately and have lived[***11] separately pursuant to such agreement, but since the time at which a divorce could be granted on that basis has not yet arrived, and since neither of the parties makes such a claim, but each relies on the desertion of the other, both bills of complaint must be dismissed." The principal fact corroborative of the husband's desertion seems to have been the agreement of separation, which provided for the sale of the farm and a division of the proceeds and a waiver by the wife of any claim for support against the husband.  (Somewhat ironically, this same document, as we have seen, removed desertion as a ground for divorce.) In the present case there was no corroborative agreement or document.

   [*328] In our estimation neither of the items set forth above as corroborative of the husband's contention, nor both of them together, are sufficient for that purpose.  Whether the parties may have settled down to a state of living together in "sullen hostility" (as in Davey v. Davey, 202 Md. 428, 96 A. 2d 606), or may have drifted into a separation by mutual consent, either before or after the husband moved out of the house, we think that the husband has failed to adduce evidence sufficient[***12] to corroborate his claim that the wife was guilty of constructive desertion when she changed her sleeping place to the couch or sofa in the living room. Under these circumstances that part of the decree which granted the husband a divorce cannot stand.  Tomkey v. Tomkey, 130 Md. 292, 100 A. 283; Rodgers v. Rodgers, 142 Md. 549, 121 A. 249; Misner v. Misner, 211 Md. 398, 127 A. 2d 547.

   Decree reversed, with costs, insofar as it grants a divorce to the husband, and cross-bill of complaint dismissed. 

JEWELL v. STATE ROADS COMMISSION OF MARYLAND 
No. 173, October Term, 1956
 
Court of Appeals of Maryland
 
213 Md. 269; 131 A.2d 727; 1957 Md. LEXIS 584

 May  8, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  deed, highway, chancellor, filling station, demurrer, plats, maps, remaining property, improperly granted, right to maintain, denial of access, order sustaining, public records, purchase price, discriminatory, capricious, unlawfully, construct, collusive, entrance, procured, cutting, ingress, egress, amend

COUNSEL: George E. Woelfel and Thomas J. Curley, with whom were Woelfel & Curley on the brief, for appellants.

   Joseph D. Buscher, Special Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and James C. Morton, Jr., Special Attorney, on the brief, for appellee.

JUDGES: Brune, C. J., and Collins, Henderson, Hammond and Prescott, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*270] [**728] This is an appeal from an order sustaining the [***3]respondent's, appellee's, demurrer to complainants', appellants', cross bill of complaint.

   The State Roads Commission of Maryland, (the Commission), on September 8, 1955, filed a bill of complaint against Bertha K. Jewell, Ray Jewell, Joseph Pierce Jewell, Virginia Jewell, Joseph Henry Jewell, and Sylvia F. Jewell, in which it alleged that the Jewells on December 30, 1952, conveyed to the Commission by deed certain land for the Annapolis By-Pass, a Controlled Access Arterial Highway, and all rights of ingress and egress from such By-Pass to their remaining property, a filling station. The barriers put up by the Commission to deny access, as granted, had been removed by the Jewells.  The Commission asked that they be enjoined from breaking the denial of access clause contained in the aforesaid [*271] deed and for other and further relief.  An answer was filed to that bill of complaint on October 10, 1955, in which the Jewells denied the material allegations of the bill and claimed that the aforesaid deed was procured in an improper manner by the Commission.

   On October 13, 1955, the Jewells, as complainants, filed a cross bill against the Commission.  A demurrer, and answer, [***4] denying the material allegations of the cross bill were filed by the Commission.  After hearing, the chancellor passed an order sustaining the demurrer and dismissing the cross bill, without leave to amend. From that order complainants, appellants appeal. At the argument in this Court it was brought out that the Jewells have access to another public road.  For the purpose of this case this cross bill alleges the filing of the original bill on September 8, 1955, and, among other things, the following.  Sometime prior to 1950 the Commission determined that it was necessary to construct the Annapolis By-Pass which was to be a Controlled Access Arterial Highway. Prior to the dissemination of general knowledge relative to the construction of said By-Pass and prior to the acquisition thereof, the Commission by one or more of its members, agents or employees "must have disclosed its plans" to Messrs. J. Donaldson Parr and George W. Della.  Thus provided with such advanced information from the Commission, the said Messrs. Parr and Della, during the years 1950 up to and including 1954, procured various tracts of land along said proposed By-Pass.  The Commission conspired with Messrs. Parr[***5] and Della to grant access to their properties at various points along that By-Pass, despite the action of the Commission in designating and constructing the road as a Controlled Access Arterial Highway. When the Commission purchased the Jewell property in December, 1952, its representatives impressed upon them the "denial of access" feature of the Annapolis By-Pass and implanted in their minds the conviction that this highway was to be of a "nonaccess" type.  It failed to disclose that only Messrs. Parr and Della were to be accorded the exclusive bounty of access roads.  Subsequent developments have convinced the Jewells of the utter bad faith in such capricious, arbitrary, collusive [*272] and discriminatory acts.  They ask that the Commission be ordered and directed to grant unto them, the Jewells, the right to maintain a thirty-foot entrance into their gasoline filling station, permitting vehicles to pass thereto from the northbound artery of the Annapolis By-Pass.  They also ask that certain issues be submitted to the law side of the court to be determined by a jury.

   The authority of the Commission to designate and construct Controlled Access [**729] Arterial Highways[***6] is contained in Code, 1951, Article 89B, Section 7, and the definition of such a highway is contained in Code, 1951, Article 89B, Section 18, Sub-section B.  Ordinarily the question of whether a proposed highway is required by public necessity is a legislative rather than a judicial matter.  Murphy v. State Roads Commission, 159 Md. 7, 149 A. 566; Masson v. Reindollar, 193 Md. 683, 69 A. 2d 482; State Roads Commission v. Franklin, 201 Md. 549, 95 A. 2d 99, and cases there cited.

   By Code 1951, Article 89B, Section 3, all records of the State Roads Commission were public records. Before the adoption of Chapter 59, Acts of 1956, we know of no requirement that plats containing the information, which the Jewells allege that Messrs. Parr and Della "must have received" from the Commission, be denied the public.  By that Act, 1956 Cumulative Supplement, Article 89B, Section 9D, such plats and maps showing such information "shall not be considered public records of the Commission, and shall not be open to public inspection except by permission of the Commission, or its duly constituted officer, any statute or statutes to the contrary notwithstanding, until said plats or maps have[***7] been recorded as hereinafter prescribed." From this legislation it appears that the reason for withholding the plats and maps is to prevent their use by speculators.

   The only basis upon which the Jewells file their cross bill is that Messrs. Parr and Della, who are not parties to this cause, have been improperly granted access to the By-Pass by roads which are much more dangerous to the public than the Jewell road, and therefore by recourse to the courts they must also be granted such access.  Even assuming, without deciding, that the Commission was capricious, arbitrary, [*273] collusive and discriminatory, as alleged, in granting such benefits to Messrs. Parr and Della, and that access should not have been granted on this Controlled Access Arterial Highway, we find no authorities nor have any been cited to us which justify the granting of such access to the Jewells.  As pointed out by the chancellor, although they executed the aforesaid deed to the Commission cutting off the access to the filling station from the Annapolis By-Pass, the Jewells ask the court to judicially sanction their violation on the ground that others have acted unlawfully. Even assuming, without deciding, [***8] that fraud was practised by the Commission in obtaining the deed from the Jewells, they do not seek to have that deed set aside and declared null and void and offer to return the purchase price. In the argument in this Court they made such an offer.  However, we are advised that they made no such offer or request to amend the bill of complaint before the chancellor and stated that they wished to stand on their cross bill in this Court, as originally filed.  Of course, the chancellor did not pass upon the bill as so amended.  Therefore we cannot pass upon it here.  Rule 9 of the Court of Appeals, in effect when the cause was tried.  We are of opinion that the chancellor was correct in sustaining the demurrer and dismissing the cross bill, without leave to amend.

   Order affirmed, with costs. 

LICHTENBERG et ux. v. SACHS 
No. 156, October Term, 1956
 
Court of Appeals of Maryland
 
213 Md. 147; 131 A.2d 264; 1957 Md. LEXIS 570

 April  17, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  right of way, relocation, decree, injunctive relief, innocent mistake, interfering, injunction, ingress, egress, declaratory decree, unobstructed, landowner, acre, deed, Fourteenth Amendment, deprivation of property, power of eminent domain, adjoining landowner, full compensation, monetary damages, original right, process of law, adjoining land, owner of land, sum of money, equity suit, consequent, hardship, insignificant, inconvenience

COUNSEL: Theodore G. Bloom, with whom was Albert J. Goodman on the brief, for the appellants.

   The Court declined to hear argument for the appellee.

   George B. Woelfel on the brief for the appellee.

JUDGES: Brune, C. J., and Collins, Henderson, Hammond and Prescott, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*149] [**265] This case had its origin in 1950, when Jerome M. Lichtenberg, one of the appellants, patrolled the right of way to the thirty-five acre farm of Edward J. Sachs, Jr., the appellee, with a 45 automatic pistol and refused to permit Mr. Sachs to go on the premises of the appellant for the purpose of grading his right of way. Thereupon, Edward J. Sachs, Jr., brought suit in the Circuit Court for Anne Arundel County seeking an injunction to restrain said appellant, Jerome M. Lichtenberg, from interfering with the right of way of the appellee.  At the time of the filing of that bill of complaint, the appellants had no deed to the property and the suit was brought against Jerome M. Lichtenberg, [***4] alone, because it was he who forcibly interfered with the appellee's use of the easement.  On the day of the trial in January, 1951, the appellee in this cause sought a continuance, because, subsequent to the filing of the bill of complaint, the appellants procured a deed from John R. Norris, trustee, dated December 8th, 1950, for some ninety-seven acres of unimproved land as tenants by the entireties, however, the wife, Evelyn E. Lichtenberg, being present in court consented, through her solicitor, to be made a party defendant and the pleadings filed by her husband were also adopted as her pleadings.  The notations were made on the docket by the clerk in open court and the case was finally heard and determined.  On the first day of November, 1951, Judge Clark granted an injunction restraining [*150]the appellants from interfering with the unobstructed use of the right of way of the appellee "as said right of way is now laid out." An appeal was taken to this Court, and the decree of the Chancellor was affirmed.  Lichtenberg v. Sachs, 200 Md. 145, 88 A. 2d 450. In less than two years, the appellants had a plat made of the property for the purpose of developing the same and[***5] laid the entire tract off in lots and streets ignoring the right of way.

   Shortly thereafter, the appellants built one house which was about one foot over the right of way on the south side, however, the appellee could still drive in and out.  Being successful in that venture, the appellants built another house on the opposite side of the way encroaching thereon another foot, however, the appellee still had enough room for ingress and egress, and no action was taken against them at that time.  The appellants then started another house directly in the center of the right of way which totally deprived the appellee of his right of ingress and egress. [**266] A petition was immediately filed by the appellee to enjoin the appellants from continuing the construction of the house and to show cause why they should not be cited for contempt.  The appellants put the construction under roof and stopped work.  The appellants then filed this suit for a declaratory decree requesting the court to close the existing right of way upon providing the appellee with a comparable means of ingress and egress. The appellee filed his answer to the bill alleging that the appellants were determined to[***6] circumvent the former decree of the court.  Testimony was duly taken, and, after a hearing, the Circuit Court for Anne Arundel County, by its decree, dismissed its bill of complaint.  This appeal is from that decree.

   The appellants claim to raise two issues which they set forth as follows:

   (1) If the appellee were to bring an action in equity against the appellants for injunctive relief, would the Court compel the appellants to reopen the original right of way, or would it require the appellee to accept monetary damages for its having been permanently closed?

   (2) Where, by reason of extreme hardship, a Court of [*151] Equity, in an action brought by the appellee; would not have compelled the appellants to reopen the original right of way but would limit the appellee's remedy to recovering monetary damages, may the appellants obtain a declaratory decree limiting their liability to the payment of damages?

   As we view this suit, it is unnecessary to answer (1); so, we proceed to (2). The appellants admit that they have wronged the appellee, but argue that if the appellee had sought relief, he would have been required to elect to sue for damages or for a mandatory injunction. [***7] They contend that if the appellee had selected the latter remedy, under the doctrine that where, by reason of undue hardship, a Court of Equity will deny injunctive relief and leave the plaintiff to his remedy at law, Easter v. Dundalk Holding Co., 199 Md. 303, 305, 86 A. 2d 404, the appellee would have been denied injunctive relief, and required to accept whatever was a reasonable amount for his damages.  This is a rather novel argument, and totally ignores the possibility of the remedy of ejectment.  However, as was stated in the Easter case, supra, it is an established rule that where a landowner, by innocent mistake, erects a building which encroaches on adjoining land, and an injunction is sought by the owner of the land encroached upon, the court will balance the benefit of an injunction to the complainant against the inconvenience and damage to the defendant, and where the occupation does no damage to the complainant except the mere occupancy of a comparatively insignificant part of his lot, or the building does not interfere with the value or use of the rest of his lot, the court may decline to order the removal of the building and leave the adjoining landowner[***8] to his remedy at law.  The above argument loses sight of the fact that in the class of cases just mentioned the landowner, whose property has been trespassed upon, is the plaintiff seeking the extraordinary remedy of injunctive relief; and, where the relief, if granted, would work a grossly disproportionate hardship, it may be refused.

   In the suit at bar, the plaintiffs are not persons who have made an innocent mistake, but are ones, who, after a hotly contested equity suit, in which they were enjoined by the [*152] Court from interfering with the unobstructed use of the right of way, have deliberately obstructed the same.  They now request this Court to require that the defendant submit to a relocation of the right of way, and accept consequent damages for its relocation. Even if this Court were inclined, under the above circumstances, to grant such relief, it has no authority to do so.  There are constitutional barriers that definitely prevent its granting.  The request that the plaintiffs be allowed to relocate the defendant's right of way and permitted to pay [**267] him damages for such relocation amounts to a request that private property be taken for private use. [***9] No court has authority to compel the owner of land to surrender his property to another person, lacking the power of eminent domain, in exchange for a sum of money; because, the taking of one person's property for the private use of another, even with full compensation, is a deprivation of property without due process of law in violation of Article 23 of the Maryland Declaration of Rights and the Fourteenth Amendment of the Constitution of the United States. Easter v. Dundalk Holding Co., supra, p. 307 of 199 Md.

   It may be noted that the bill of complaint prayed only for a declaratory decree that the plaintiffs had a right to permanently close the defendant's right of way upon furnishing him with a comparable means of ingress and egress and the payment of damages.  Since the appellees have no such right, the Chancellor was correct in dismissing the bill of complaint.

   Decree affirmed, with costs. 

PUMPHREY v. COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY etal. 
No. 130, October Term, 1956
 
Court of Appeals of Maryland
 
212 Md. 536; 130 A.2d 297; 1957 Md. LEXIS 390

 March  15, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  garbage, tenant, collection, levied, zone, disposal, collected, removal, household, protest, notice, collecting, demurrer, rented, void, order sustaining, special charge, real estate, proportionate, trash, owner of property, new assessment, duly enacted, waste matter, declaring, beneficial, uniformly, disposing, reluctant, consulted

COUNSEL: Thomas J. Wohlgemuth, with whom were McWilliams, Evans & Melvin, on the brief, for appellant.

   Malcolm B. Smith, with whom was Marvin I. Anderson, on the brief, for appellees.

JUDGES: Brune, C. J., and Collins, Henderson, Hammond and Prescott, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*538] [**298] This is an appeal from an order[***4] sustaining a demurrer to appellant's, complainant's, bill of complaint without leave to amend, and dismissing that bill.

   The bill of complaint alleges substantially that the plaintiff is the owner of a tract of land in the Third Election District of Anne Arundel County, a part of which is improved by thirty dwelling houses, all of which are rented by the complainant to tenants either on short term leases or on a month to month basis. Chapter 716, of the Acts of 1953 of the General Assembly, repealed Section 238 of the Code of Public Local Laws of Anne Arundel County (1947 Edition), Article 2 of the Code of Public Local Laws of Maryland (1930 Edition), and enacted in lieu thereof a new Section 238.  Section 238(A) provides:
 
   "The County Commissioners of Anne Arundel County are hereby authorized to establish garbage [*539] zones within each of the several election districts of the county except the Sixth Election District (City of Annapolis).  The County Commissioners are further authorized to establish schedules of service charges to be made to each household or commercial unit for the removal of garbage, ashes, trash and other waste matter. These unit service charges shall [***5]be sufficient to defray the cost of removal of said garbage, ashes, trash and other waste matter in each established garbage zone. Said service charges shall be levied and collected as county taxes now are, or may hereafter be, by law levied and collected, and shall have the same priority rights, bear the same interest and penalties and in every respect be treated the same as county taxes.  The County Commissioners are further authorized to have this removal made by county employees or to contract for said removal by an independent contractor or contractors for such periods and upon such terms as they may establish."

   Pursuant to the aforesaid statute the County Commissioners of Anne Arundel County, (the Commissioners), without any notice to the plaintiff, directed the Treasurer and Collector of Taxes of Anne Arundel County, (the Treasurer), to include in complainant's 1954 tax bill a charge of $111.00 under the heading "Special Taxes", sub-heading "Garbage Zone".  Plaintiff protested and paid said charge under protest. When he received his 1955 tax bill the item "Special Taxes", subheading "Garbage Zone", had increased to $403.00.  He had received no notice of any increase[***6] nor had he any knowledge of the reasons therefor.  He renewed his protest and paid all of his taxes except said garbage tax, which he still protests and refuses to pay.  He consulted counsel and was advised that under the aforesaid Act of 1953, there is no legal basis for charging the landlord rather than the tenant for the collection and disposal of garbage, since the tenant receives the benefit and the act requires the charge to be made to each household. Pursuant to his [**299] instructions, his counsel wrote a letter of protest to the Commissioners.  That letter, filed as an [*540] exhibit with the bill, states that the plaintiff protests the charge made for garbage disposal. He has paid the State and County taxes for 1955 but he refuses to pay the other charges.  He rents all of the thirty small dwelling houses.  He obtains no benefit from the collection and disposal of the garbage. He took no part in requesting the County to provide the service.  These charges should be collected from his tenants. The letter also requested that the 1956 bill for garbage be cancelled and that bills in the proper amounts be forwarded to the tenants who occupy the houses.

   The bill[***7] further alleges that plaintiff received his 1956 tax bills shortly after January 1, 1956, and the item "Special Tax Total" on the bill relating to the aforesaid property is in the amount of $396.40.  On January 26th he went to the Treasurer's office to pay all of his 1956 taxes except said garbage tax, which he continues to protest. The Treasurer refused to accept any payment whatever unless the plaintiff would agree to pay the entire 1956 tax bill and the balance claimed to be due on the 1955 tax bill as well.  It is also alleged that the plaintiff is advised and he believes and therefore alleges that neither the Commissioners nor the Treasurer has either the right or the power to charge him for the cost of collecting garbage from his tenants. Plaintiff did not request said service, he was not consulted about it and he enjoys no benefit resulting therefrom.  Plaintiff further alleges that the attempt to exact said charges from him under the guise of taxation is illegal, discriminatory, unconstitutional and void, and should not be allowed merely because it is more convenient for the defendants to collect from the plaintiff instead of from the individual tenants. Plaintiff further[***8] alleges that the refusal of the Treasurer to accept the payment of taxes, not only on said property but on other properties as well, subjects the plaintiff to the payment of penalties and prevents the recording and transfer of any parcels of land which he may sell. The illegal actions of the defendants are causing the plaintiff irreparable loss and damage and he has no adequate remedy at law.

   Plaintiff asks that Chapter 716, of the Acts of 1953, be declared to be null, void and of no effect; that the defendants, [*541] their agents, servants and employees may be restrained and enjoined from collecting or attempting to collect from the plaintiff the cost or any part of the cost of collecting and disposing of trash and garbage from any persons other than the plaintiff; and that the defendants may be required to collect the cost of collecting and disposing of garbage from the persons who are by law required to pay the same.

   A demurrer was filed to this bill and from an order sustaining that demurrer without leave to amend, and dismissing the bill, the plaintiff appeals here.

   The appellant attacks the constitutionality of the new act.  Of course, a statute will not be construed[***9] so as to render it unconstitutional when it is open to a construction, fair, reasonable, and wholly consistent with the Constitution.  Parlett Co-operative, Inc. v. Tidewater Lines, 164 Md. 405, 421, 165 A. 313. A duly enacted statute is presumed to be constitutional and the courts have always been reluctant to defeat the will of the Legislature by declaring such legislation void, if by any construction it can possibly be maintained.  Pressman v. State Tax Commission, 204 Md. 78, 102 A. 2d 821.

   The plaintiff contends that the words in Section 238(A) "service charges to be made to each household or commercial unit for the removal of garbage" mean that persons who live in the houses shall pay the tax and not the owner.  The preposition "to" as used in the connection here is defined in Webster's New International Dictionary, Second Edition, as "indicating that which is in position of contact, continuity, proximity, connection." From the section as a whole it is evident that the Legislature [**300] established a system for determining the proportionate amount of the garbage assessment.  Also the statute is to be read as a whole to determine its meaning and the provision that [***10] the "service charges shall be levied and collected as county taxes now are" indicates that the charge is levied against the real estate and therefore must be paid by the owner.  The owner pays the real estate taxes on the houses and and those taxes pay for police and fire protection for the tenants. The owner could hardly contend that his tenants should pay those taxes. 

   By Section 238, which was repealed, the garbage removal [*542] charge was designated as a special tax and based upon the assessed valuation of property in each garbage collection zone, and was not reasonably proportionate to the garbage service received.  Under the new enactment Section 238(A), supra, the charge for garbage collection is made a special charge to pay the cost of benefits received in a taxing district not enjoyed by the general public in the county.  The fact that the charge is levied and collected as county taxes does not in terms make the charge a tax, but merely provides for the manner of collection. St. Paul Building Co. v. Baltimore, 149 Md. 685, 688, 132 A. 51. This special charge differs from ordinary taxes in that the owner of the property who pays ordinary taxes is not supposed[***11] to receive any equivalent for his taxes except the common benefits of government.  "On the other hand, the owner of property who pays a legal assessment receives, in theory, an equivalent, in the form of an increase in the value of his property, for all he pays by way of assessment." Leser v. Wagner, 120 Md. 671, 678, 87 A. 1040. In that case it was held that an assessment upon abutting property owners for the cost of paving the sidewalk was valid, and of public benefit, as well as local advantage to such owners, though they may object to the improvement and that the assessment was free from constitutional objections.

   In Sanitary Commission v. Noel, 155 Md. 427, 142 A. 634, cited by the appellee, special assessments were made for sewerage, water and a drainage system.  This Court held in that case that the Legislature had the power to classify properties in a special district to defray the cost of a benefiting improvement, and that its decision was final, in the absence of a showing of arbitrary action and plain abuse of power.  The garbage collection here has been determined by the Legislature to be beneficial to the properties in this zone. Under the act a separate account[***12] is kept of the cost of garbage collection in each zone, and such cost is apportioned according to the number of household units in that zone. According to the allegations of the bill the owner was charged, in 1956, $396.40 for garbage collection from thirty houses or approximately $13.21 for each house for one year, or approximately $1.10 per month.  The result of this assessment is that areas containing [*543] more than one household unit and therefore requiring more service, pay a proportionately greater assessment.  This assessment, therefore, acts equally and is uniformly applied.  The appellant does not argue that he is overcharged but only that the charge is wrong.

   In such a congested area it could hardly be argued that the value, and chances for rental, of residential properties are not increased by a public garbage disposal system.  Lack of such a facility could reasonably become a menace to the health of the community and affect the rental value.  Appellant argues that some of his tenants may move away and that he would lose the rentals.  His bill of complaint alleges that the houses are rented. There is more likelihood that they will remain rented with garbage[***13] disposal, than without.

   The appellant further contends that he should have had notice of the imposition of the charge before he received his 1954 and subsequent tax bills. He relies on Code, 1951, Article 81, Section 28 (a) (4), [**301] which provides that before any new assessment is made against any person he shall be given written notice thereof, appointing a day for such person to make answer thereto.  As we have hereinbefore held that this is a legal charge and not a tax levy, Section 28 (a), supra, does not apply in the instant case.  We know of no provision which requires notice for such charge.  Compare Casey Development Corp. v. Montgomery County, Maryland, 212 Md. 138, 129 A. 2d 63. The order sustaining the demurrer will be affirmed.

   Order affirmed, with costs. 

PATUXENT OIL COMPANY, INC. v. COUNTY COMMISSIONERS OF ANNEARUNDEL COUNTY 
No. 131, October Term, 1956
 
Court of Appeals of Maryland
 
212 Md. 543; 129 A.2d 847; 1957 Md. LEXIS 391

 March  15, 1957, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  wharf, pipe line, oil, pipe, revocable, license, prayer, public landing, tankers, justiciable controversy, public use, repair, tanks, justiciable issue, storage, marine, highways, Declaratory Judgments Act, permission to use, option to renew, transferring, replacement, demurrer, landing, declare, decree, ran, vel, supervision and control, right to charge

COUNSEL: William J. McWilliams, with whom were McWilliams, Evans & Melvin, on the brief, for appellant.

   Marvin I. Anderson, with whom was Malcolm B. Smith, on the brief, for appellee.

JUDGES: Brune, C. J., and Collins, Henderson, Hammond and Prescott, JJ. Prescott, J., delivered the opinion of the Court.

OPINIONBY: PRESCOTT

OPINION: [*546] [**848] The Patuxent Oil Company, Inc., (Patuxent) filed a bill of complaint in[***5] the equity court in which it requested the Court to declare its rights with respect to the use of a pipe line under a public landing or wharf in Anne Arundel County and, as well, the rights and powers of the county with respect thereto.  This appeal is from a decree which sustained a demurrer to, and dismissed, the bill, without leave to amend.

   The bill of complaint alleged in substance: That in 1924, the Standard Oil Co. (Standard) erected tanks for the storage of liquid petroleum products on its property located in Galesville and installed a pipe line from that property to the end of a public wharf, owned and maintained by the county, which extended into the waters of West River; that for many years thereafter, oil was delivered to its said tanks by marine tankers that tied up to the wharf, the oil then being pumped through the pipe line to the storage tanks; that for the privilege of placing the pipe line under the wharf, Standard paid the county $260.00 annually; that in 1938, Standard sold its property, including the pipe line, to Patuxent, which continued the same method of operation until some time after World War II, when the deliveries by marine tankers were discontinued [***6]and changed to deliveries by motor tankers; that Patuxent decided to reactivate the pipe line and discovered it needed repairs; that it applied to the county commissioners for, and obtained from them, a permit to make the repairs where the pipe line ran over land but not within the State's right of way (In this permit, Patuxent's agent was instructed that under no circumstances "shall the pipes be continued or connected to the existing pipe or new pipes extended on the County wharf" until after a written agreement relative thereto had been signed by the commissioners and Patuxent); that shortly after the issuance of this permit, Patuxent attempted to negotiate the terms of an agreement with the county for the replacement of the pipe line under the public wharf; that its counsel consulted with "representatives" [*547] of the county and a monthly payment of $50.00 was agreed upon; that at a meeting of the commissioners held on March 29, 1955, the county's counsel advised them that Ch. 711 of the Acts of 1953 was applicable and no agreement could be entered into unless the advertising requirements were complied with; that at a meeting held two days later Patuxent's counsel requested[***7] the commissioners to [**849] give further consideration to the matter and he was requested to submit a proposal in writing and the county's counsel was directed to render a written opinion thereon; that Patuxent's counsel submitted the written proposal to the effect that the commissioners authorize Patuxent "to make use" of the oil pipes under the wharf for a period of five years (with an option to renew for an additional five year period) for $50.00 per month (this proposal contained other provisions not immediately important and the further statement that the quantity of oil to be unloaded was not certain); that the county's counsel rendered his written opinion which was to the effect that the county had no authority to lease public property unless the commissioners deemed it no longer needed for public use; that the commissioners thereafter again considered the matter and by unanimous action decided to be governed by the advice of their counsel; that shortly thereafter this suit was instituted.

   The bill of complaint then prays for the following relief:

   "1. That the Plaintiff, in common with other members of the public, may be declared to be entitled to make any reasonable[***8] use of the public landing at Galesville which does not unreasonably interfere with the rights of other members of the public who are entitled and have occasion to use the landing for the purposes for which it was designed.

   2. That the Plaintiff may be declared to be entitled to use the pipe line under said public landing for the purpose of transferring oil from boats to its plant.

   3. That the right vel non of the County to exact payments from the Plaintiff may be determined and, [*548] if such a right is found to exist, the reasonable limits of said charge.

   4. That the Plaintiff may have such other and further relief as its case may require."
 
   The powers of the Courts in this State to declare "rights, status, and other legal relations" are contained in Secs. 1, 2, 3, 4, 5, 6, 7 and 8 of Art. 31A of the Code (1951); and Sec. 12 provides that said Article shall be liberally construed and administered.  As a result of several decisions of this Court that held that a proceeding for a declaratory judgment was inappropriate when there existed an immediate cause of action between the parties for which one of the common remedies at law or in equity was adequate and available, the[***9] Declaratory Judgments Act was repealed and re-enacted in 1945.

   Before and after 1945 in this State, it consistently has been held that in order to invoke the jurisdiction of the Courts for declaratory relief, there must be a justiciable issue or controversy; and, insofar as we have been informed, it is universally so held.  A concise definition of what constitutes a justiciable issue or controversy is given by Anderson in his Actions for Declaratory Judgments, Vol. 1, par. 17: "A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded." See also Tanner v. McKeldin, 202 Md. 569, 576, 577, 97 A. 2d 449; Kirkwood v. Provident Savings Bank, 205 Md. 48, 53, 54, 106 A. 2d 103. As the Chancellor sustained a demurrer to the bill of complaint, we must examine the facts alleged therein together with the exhibits and the decisions of this Court to determine whether any one or more of the prayers for relief should have been granted.

   I

   We shall consider the prayers, above quoted in full, seriatim as (1), (2), (3) and (4).  With reference to (1), this[***10] [**850] Court has set forth the manner in which the public highways, wharves and sidewalks may be used by individuals.  Among the cases dealing with the same are: Brauer v. Refrig. Co., 99 Md. 367, 376, 58 A. 21 (streets and sidewalks); Maxa v. [*549] County Commrs., 158 Md. 229, 231, 148 A. 214 (wharves); Parlett, etc. v. Tidewater Lines, 164 Md. 405, 416, 165 A. 313 (highways); State v. Potomac Edison Co., 166 Md. 138, 144, 170 A. 568 (highways).  It is obvious this prayer simply requests a declaration of an abstract proposition of law.  There is no allegation in the bill or exhibits that claims any denial by the defendants of any such rights in the plaintiffs.  As a matter of fact, it seems to be conceded in the record and likewise was conceded during argument that no claim is made or has been made that the plaintiff does not have the same rights in common with all other members of the public with reference to the use of the wharf. This Court has decided: That the Courts will not decide abstract propositions, either under the Declaratory Judgments Act or any other procedure, Davis v. State, 183 Md. 385, 390, 37 A. 2d 880; that the Declaratory Judgments[***11] Act should not be used in an attempt to use the Courts simply to give legal advice or for answering questions as to which no reasonable doubt could exist, Staley v. Safe Dep. & Tr. Co., 189 Md. 447, 457, 56 A. 2d 144; and, when this jurisdiction is invoked, there must be an actual and justiciable controversy and the facts showing the same must be alleged, Tanner v. McKeldin, 202 Md. 569, 578, 97 A. 2d 449. We are unable to discover a proper justiciable controversy in relation to this prayer. Cf. Gilbert v. Dayton (Ohio App.), 59 N. E. 2d 954, 957, 958.

   II

   With reference to (2), this prayer seems to come closer to raising a justiciable issue than any of the others; but, here too, we find much lacking. It seems fair to conclude from the allegations of the bill of complaint (although somewhat vague in nature and lacking in details), which were admitted for the purposes of the demurrer, that the former county commissioners had granted to Standard a revocable license to erect and use the pipe line under the public wharf for the purpose of transferring oil from the marine tankers to its storage tanks, for a periodic stipend, and this revocable license was continued in Patuxent[***12] when it purchased from Standard.  We think the county commissioners had the power and the authority to grant the same.  They had the supervision and control of the public [*550] landing, and it was their duty to conserve, maintain and defend the rights of the public to the free and unincumbered enjoyment thereof.  Maxa v. County Commrs., 158 Md. 229, 233, 148 A. 214. If, in their judgment and discretion, the public use and enjoyment of said wharf would not be impaired, or, perhaps, better be served, and the traffic and congestion thereon probably could be relieved, by their granting a revocable license to a corporation that had the right, together with the public at large, to use the same, we think the granting of such a revocable license would be among their implied powers as a municipal corporation.  Rushe v. Hyattsville, 116 Md. 122, 126, 81 A. 278; Howard Cty. v. Matthews, 146 Md. 553, 561, 127 A. 118; Co. Commrs. v. Supervisors of Elect., 192 Md. 196, 211, 63 A. 2d 735; Montgomery County v. Met. District, 202 Md. 293, 306, 96 A. 2d 353. Even with this determination, does the record disclose a justiciable controversy with reference to the prayer now being[***13] considered?  The above mentioned revocable license was terminated and apparently abandoned by Patuxent and no request for a renewal thereof is disclosed.  The Commissioners notified Patuxent not to replace, or connect to, the old pipes under the wharf until an agreement between the parties was signed.  The written proposal to the Commissioners from Patuxent suggests that Patuxent be authorized "to make use" of the oil pipes under the wharf for a period of five years, with the option to renew for another five years, upon the payment of $50.00 monthly.  Not only was [**851] there no attempt to renew this revocable license, but the bill alleges: "Shortly after the issuance of the permit Plaintiff (Patuxent) endeavored to negotiate the terms of the agreement with the County for the replacement of the pipe line under the public wharf. * * *"

   At this point, several things seem obvious.  The commissioners, being charged with the supervision and control of the wharf, Maxa v. County Commrs., supra, Patuxent has no right to erect or maintain permanent fixtures thereon without the permission of the commissioners.  Whether or not this permission is forthcoming calls for[***14] the judgment and discretion of the commissioners, which will not be reviewed by the Courts (subject always to the conditions that the actions of the [*551] commissioners must not be arbitrary nor tainted with fraud or collusion).  As far as the record discloses, the commissioners simply did not accept the written proposal.  It seems to have been conceded from the beginning that they had the right to charge for the license. At no place is it alleged or contended that the commissioners have exercised their judgment and discretion and desire to grant a revocable license. In this state of the negotiations or proceedings, no definite or specific issue is presented at this time since many of the important facts have not yet developed to the point which presents an actual controversy which we can decide. Tanner v. McKeldin, supra; Staley v. Safe Dep. & Tr. Co., supra; Brown v. Trustees of M. E. Church, 181 Md. 80, 87, 28 A. 2d 582.

   III
 
   In prayer number (3), the Court was requested to declare the right vel non of the county to exact payment from Patuxent for the county's permission to use the wharf by installing Patuxent's pipes thereon, and, if such a right be found to exist, [***15] the reasonable limits of said charge.  While we have referred to this briefly above, it again will be noted that throughout the recent negotiations and in the previous dealings of the parties, there was no denial of the county's right to charge for its permission to use the wharf as above mentioned; in fact, Patuxent paid for the same previously and in their last proposal offered to pay $50.00 per month.  Without further discussion of the same, it is apparent this prayer does not now present a justiciable controversy. What has been said above is, likewise, applicable to the prayer for general relief (4).

   Patuxent makes the further contention that, under the circumstances (granting to it a permit to repair its pipe line from the storage tanks to the wharf at substantial expense), the county is estopped to refuse permission to use the wharf by extending the pipes thereon.  This position is untenable.  The county was, and is, charged with the duty to maintain (so long as in the commissioners' judgment it is needed for public use) the wharf for the use, benefit and accommodation of the public.  They have no right to give up or bargain away their legislative judgment and discretion as[***16] to how best to continue [*552] and maintain the wharf for the legitimate purposes of the public, and, as the rights of the public are permanent, their actions do not estop them from exercising this judgment and discretion, although, in some instances, their conduct in matters of this nature may render the county liable in damages.  Lake Roland Elect. R. R. Co. v. Balto., 77 Md. 352, 379, 380, 381, 26 A. 510. This last statement is subject to what we said earlier in this opinion with reference to a revocable license. The power to grant a revocable license in no manner diminishes the right of the commissioners, or their successors in office, to exercise, continuously, their judgment and discretion in controlling and regulating the wharf for the public use, safety and convenience.

   Finding no error in ruling of the Chancellor, the decree will be affirmed.

   Decree affirmed, with costs. 

WHITTINGTON v. MANN et al. 
No. 18, October Term, 1956
 
Court of Appeals of Maryland
 
211 Md. 199; 126 A.2d 617; 1956 Md. LEXIS 371

 November  9, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  right of way, plat, deed, feet, recorded, highway, water, strip of land, county road, grantor, foot, east side, distance, platted, feet south, northwest, conveyed, width, strip, unrecorded, predecessors, measured, defeat, decree, ran, actual use, several times, rule of construction, specific performance, prejudicial error

COUNSEL: John G. Remey for the appellant.

   George B. Woelfel for Mr. Mann, appellee.

   Emanuel Klawans for Mr. Clark, appellee.

JUDGES: Brune, C. J., and Collins, Henderson and Hammond, JJ., and Henderson, J., Chief Judge of the Fourth Judicial Circuit, specially assigned.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*201] [**617] Oscar Mann, one of the appellees, filed a bill for specific performance of a contract by Thomas Clark, the other appellee, [***5]to purchase a lot of ground contiguous to a platted development called Herring Bay View, which Mann had subdivided into lots.  Clark's answer alleged that Alrano Whittington, the appellant, owner of two lots in Herring Bay View, claimed a right of way thirty feet wide along two sides of the [**618] piece of ground he had bought.  He filed a cross-bill against Mann for the diminution in the value of the lot that Whittington's right of way, if established, would cause, and interpleaded Whittington, who, in his answer, asserted claim to the right of way across the lot in question.  The Chancellor held that the right of way did not pass over the lot but, rather, ran to the east of it, as laid out on a recorded plat of Herring Bay View, and granted specific performance against Clark, the purchaser.

   Whittington's appeal urges that the right of way does pass [*202] over the lot so that the decree was erroneous and that the Chancellor should not have considered Mann's testimony that but one right of way was intended and should have admitted in evidence an unrecorded plat which, it is claimed, shows Mann's intent that the course of the right of way be as appellant claims it is. [***6]

   In 1927 Mann recorded a plat of Herring Bay View showing lots numbered from 1 to 77 abutting on streets, with three unnumbered pieces of land.  His testimony was that the unnumbered pieces were mere marshes that some day he hoped to fill but which were not in the subdivision.  One of these pieces is the one Mann sold to Clark.  This is the only plat that has been recorded and all sales or conveyances of the land were made by reference to the plat.

   The plat shows part of a county road running east and west.  It shows further a private road thirty feet wide extending south from the county road in a straight course to the waters of Rockhold Creek.  For the first 357 feet south from the county road, the private road runs along the west line of Herring Bay View and is parallel with the east side of the property of Virgil Rogers.  At this point the lot sold by Mann to Clark comes into the picture.  From a point 357 feet south of the county road to Rockhole Creek, a distance of approximately 200 feet, the private road runs through Mann's land with Herring Bay View to the east and the lot sold by Mann to Clark to the west.  The appellees contend that the private road shown on the plat is[***7] the thirty foot right of way to which Whittington is entitled.

   Whittington admits that the right of way enjoyed by him is the private road shown on the plat for the first 357 feet south from the county road. He contends, however, that beginning 357 feet south of the county road it turns southwesterly at about a forty-five degree angle and runs along the northwest line of the Mann-Clark lot, which is also the southeast line of the Virgil Rogers land, for a distance of 259.80 feet, and that it then turns at right angles and runs southeasterly parallel with that line of the Mann-Clark lot for 87.8 feet to Rockhole Creek.  The right of way claimed by him is over 700 feet long.

   [*203] Whittington's claim arises from two deeds to predecessors in title, Harry C. Horton and wife.  By the first deed, dated May 13, 1936, Mann conveyed to Horton and wife that lot "which is designated as Lot No. 69 on the Plat of Herring Bay View, which Plat is duly recorded among the Plat Records of Anne Arundel County in Plat Book F. S. R. No. 1, folio 21." The grant of the right of way was in this language: "And particularly the right of way over a strip of land 30 feet in width, running along the North[***8] side of Grantors' property, parallel with the East side of property of Virgil Rogers, to the waters of Rockhold Creek, said strip of land being about 554 feet in length."

   The second deed was dated June 23, 1936, and by it Mann conveyed to the Hortons all that lot of ground "which is designated as Lot No. 70 on the Plat of Herring Bay View, duly recorded among the Plat Records of Anne Arundel County in Plat Book F. S. R. No. 1, folio 21." The grant of the right of way was in the following language: "TOGETHER with a right of way over a strip of ground 30 feet in width running along the northwest side of the property of the said Oscar Mann, parallel with the east side of the property of Virgil Rogers, to the [**619]waters of Rockhold Creek, said strip of land being about 554 feet in length."

   There is an obvious ambiguity in the description of each of the deeds from Mann to the Hortons.  Neither the north nor northwest side of Mann's property runs parallel with the east side of the property of Virgil Rogers, so it is a concessum in the case that in the deeds of lots 69 and 70, respectively, north and northwest side should read west side.  The common lines of the Mann and Rogers[***9] property, other than the west and east lines respectively, do not fulfill any description in the Horton deeds. It is conceded, too, that at no time has either the right of way on the plat or the right of way claimed by Whittington existed on the ground, so that there is no physical evidence as to the intention of the parties.  It was shown that Rockhole Creek at the end of the right of way on the plat was filled up by dredging operations of the Federal Government in 1941, but that it is still open along the westernmost 70 feet of the property which Clark contracted to purchase from [*204] Mann.  However, when the Horton deeds were executed and delivered, there was water in Rockhole Creek at the end of the thirty foot right of way on the plat, as well as at the edge of the Clark property, so that no inference can be drawn that access to otherwise unavailable water was the basis for a relocation of the right of way to Whittington.  Other pertinent testimony was that there were but four deeds in all that referred to a 30 foot right of way. There were the two Horton deeds, and a deed in 1927 to one Bonifant of lots 72 and 73 on the plat with "a right of way over the thirty (30) [***10] foot road running along the southwestern side of said Grantors' property, parallel with the east side of the property to Virgil Rogers, to the waters of Rockhold Creek, as shown on the above-mentioned plat." The fourth deed was to one Chilson of lots 38, 39 and 40 as shown on the plat, with "the right of way over a strip of land thirty feet in width, running along the North West side of grantors' property, parallel with the East side of the property of Virgil Rogers, to the waters of Rockhold Creek, said strip being about 554 feet in length."

   Two witnesses testified that they had measured the right of way as shown on the plat and found its length to be exactly 554 feet. One of the witnesses measured the right of way contended for by Whittington and found its total length to be 725 feet, and the other witness scaled its length as 707 feet.

   To be ascertained is the intention of the parties found from the language of the deeds, considered in the light of attendant circumstances at the date of execution and delivery.  "It will do no harm to reiterate that the general rule, and the one from which all the others are derived, is that the construction must accord as nearly as possible with[***11] the intent of the parties * * *." 3 American Law of Property, Part 12, Deeds, V, Topic 2, Construction of Descriptions, Sec. 12.110, p. 423.  The same volume says at Sec. 12.115, p. 440: "It must be kept in mind that the rules for awarding priorities among conflicting terms have been developed as a means for determining intention of the parties.  Accordingly they will not be followed and the priorities may be reversed when it appears that the application of the rule would defeat that intention.  In other words these are rules of construction rather [*205] than rules of property." See also 4 Tiffany, Real Property, Third Ed., Sec. 993. 

    Since the Horton deeds conveyed the lots by reference to the recorded plat of Herring Bay View, that plat became incorporated as part of the deeds. Burk v. Baltimore, 77 Md. 469; Carey v. Adams, 202 Md. 158, 164; Phelps v. Phelps, 17 Md. 120. The prima facie intention of the parties must be taken to be that the right of way shown on the plat was that intended to be granted.  That right of way measures 554 feet on the plat and it is to be noted that in three of the four deeds referring to the right [**620] of[***12] way, that exact figure of 554 feet is set out as its length.  The fourth deed describes the right of way as "shown on the above mentioned plat", so that it, too, would be 554 feet. In Carey v. Adams, supra, lots were conveyed by reference to a recorded plat. The plat showed a highway running north and south and lots abutting on its east and west sides.  A new survey disclosed that an existing highway in actual use did not conform with the location of the highway as shown on the recorded plat, in that the highway in actual use ran across the lots in the block which the plat showed as bounding the highway on the east, leaving a strip of land between the existing highway and the highway as it was shown on the plat. The appellant, in her declaration, said that she was the owner of that strip and that the deeds to her predecessors in title called for a boundary on the highway regardless of the plat. This Court affirmed the judgment against her below and said: "The effect was to incorporate the recorded plat by reference and we look to it to identify the land conveyed. * * * There was no error in the plat, or in the description of the lots therein contained."

   The descriptions in[***13] the Horton deeds cannot be read to describe precisely the right of way as shown on the plat, but if the deeds, as is contended (and that seems to be the case), were drawn by a layman, it is not difficult to read the descriptions as compatible with the platted road.  The descriptions, corrected to remove the admitted error, would read that Horton took title to the right of way over a strip of land thirty feet in width, running along the West side of Oscar Mann's property, parallel with the East side of the property of Virgil [*206] Rogers, to the waters of Rockhole Creek, said strip being about 554 feet in length.  The west side of the property of Oscar Mann and the east side of the property of Virgil Rogers run parallel for 357 feet and the parties may well have intended, as we think they did, that the course of the right of way was determined by the reference to the Mann west line and the Rogers east line and the distance of the line so established was specified as 554 feet to Rockhole Creek.  The uniformity in the four grants that the 30 foot right of way runs for a distance of 554 feet is significant, for Whittington's construction would result in a right of way of over 700[***14] feet, particularly in view of Mann's testimony that only one thirty foot right of way was ever intended.

   The appellant objects to this testimony as inadmissible.  We need not determine whether it was or was not, because, although it was objected to once and the objection was sustained, the same testimony came in several times without objection.  Since it was in evidence, we think the Chancellor was entitled to give it such weight as he thought it intrinsically worth.

   The appellant's other objection on the question of evidence is that an unrecorded plat from the tax assessor's office should have been admitted in evidence on his offer, to show that the lot Clark bought from Mann had been roughly subdivided by Mann some years before in preparation for its sale as lots.  Appellant desired the plat in evidence to show, as he claimed, that there would have been no access to several of the proposed lots unless the right of way claimed by Whittington had been the one intended.  We think there was no prejudicial error in not admitting the plat since it is apparent that if any inferences could have been drawn from it as to intent, it would do far more to defeat a finding of the intention sought[***15] by the appellant than to sustain it.  The plat shows that there would have been no access to at least one of the lots even if the Whittington right of way had been the one granted, and shows further that the Whittington right of way, if in effect, would have taken all but 13 feet of the water front of one of the lots.  There was clearly no harm to the appellant's cause from the refusal to admit this plat.

   [*207] [**621] The Chancellor held that it was not necessary to construe the language of the Horton deeds strongly against the grantor, Mann, since this rule of construction need be referred to "only where all other rules of exposition fail to reach, with reasonable certainty, the intention of the parties." Zittle v. Weller, 63 Md. 190; Hodges v. Owings, 178 Md. 300. The Chancellor found that it had been shown with reasonable certainty that it was the intention of the parties to grant the Hortons the right of way shown on the plat. He relied on Carey v. Adams, supra, with some support in the testimony of Mann that but one 30 foot right of way was ever intended.  Nothing in the record or in the briefs, or in the argument before us, has led us to conclude that [***16]the Chancellor was in error.

   Decree affirmed, with costs. 

BARNES v. MELESKI, Executor 
No. 12, October Term, 1956
 
Court of Appeals of Maryland
 
211 Md. 182; 126 A.2d 599; 1956 Md. LEXIS 368

 November  8, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Order reversed, and case remanded, with costs.

CORE TERMS:  removal, right of removal, clerk, duty, transmitted, condition precedent, constitutional right, liberally construed, Constitutional Law, presumption of constitutionality, fair and impartial trial, governmental system, order of removal, order to justify, power to remove, absolute right, existing laws, power to pass, trial docket, invalidating, questioned, conferred, modify, oath

COUNSEL: Submitted on brief by George B. Woelfel for the appellant.

   No brief and no appearance for the appellee.

JUDGES: Brune, C. J., and Collins, Henderson and Hammond, JJ., and Henderson, J., Chief Judge of[***3] the Fourth Judicial Circuit, specially assigned. Henderson, J., n1 by special assignment, delivered the opinion of the Court.

n1 George Henderson, Chief Judge of the Fourth Judicial Circuit.

OPINIONBY: HENDERSON

OPINION: [*183] [**600] This appeal is based on the alleged unconstitutionality of Section 118 of Article 75 of the Maryland Code (1951) which requires the party suggesting the removal of a case to another county to pay the costs to the clerk before the record is transmitted to the other county. 

   The appellant (Barnes) had been sued in Anne Arundel County for $14,916.84 in January, 1955.  He was duly summoned, the writ being returnable on the first Monday in February, which was February 7th.  On February 19th he filed a motion for a bill of particulars, which was complied with.  Finally an amended declaration was filed, to which he filed on May 17th, 1955, pleas denying liability.  Evidently the case was set for trial on November 22nd, 1955; and on November 18th, 1955, and not until then, he filed under oath his suggestion for removal. The case was ordered removed to the Circuit Court for Baltimore County that same day, [*184] and the next day his attorney was[***4] given a bill for the removal costs.  These were not paid, and on December 21st plaintiff's counsel filed his petition stating the removal costs had not been paid, and requesting the removal order be stricken and the case placed on the trial docket of the Circuit Court for Anne Arundel County.  On the petition an order was passed requiring Barnes to show cause on or before January 10th, 1956, why this should not be done.  On January 6th Barnes filed an answer stating "the remedy sought in the petition and the order of Court subsequently passed on said petition are both unconstitutional and void."

   The matter was submitted to the Circuit Court, and on January 23rd, 1956, an order [**601] was passed requiring the defendant to pay the costs for the removal of the case; and, should he fail to pay, the Clerk was ordered to place the case on the April Docket of the Circuit Court for Anne Arundel County.  Not until February 20th did defendant enter his appeal, and it was not until April 17th that the record was certified by the Clerk of the Court.  It was filed in this Court on April 19th, 1956.

   It will be seen that the sole question attempted to be raised by this appeal is as to the[***5] constitutionality of Section 118 of Article 75 of the Code.  This reads as follows:

   "The cost of transcript of record in all suits or actions at law, issues from the Orphans' Court, or from any Court sitting in Equity, shall be paid to the clerk making the same, by the party suggesting such removal before the said record is transmitted."

   It is contended on behalf of Barnes that an absolute right of removal is conferred upon him by the provisions of Section 8 of Article IV of the Constitution of Maryland, the pertinent parts of which read thus:

   "* * * in all suits or actions at law, * * * pending in any of the Courts of Law of this State having jurisdiction thereof, upon suggestion in writing under oath of either of the parties to said proceedings, that such party cannot have a fair and impartial trial [*185] in the Court in which the same may be pending, the said Court shall order and direct the Record of Proceedings in such Suit or Action * * * to be transmitted to some other Court having jurisdiction in such case, for trial; * * * and the General Assembly shall make such modification of existing law as may be necessary to regulate and give force to this provision."[***6]

   He contends that, since an unqualified and absolute right of removal exists, Sec. 118 is an invalid restraint upon that right and therefore unconstitutional. And he cites as a controlling authority Hoyer v. Colton, 43 Md. 421.

   Since that case was decided, Sec. 8 of Art. IV of the Maryland Constitution has been amended, but the amendment did not change in substance that part dealing with the right of removal in civil cases (except it eliminated the right of the removing party to demand it be sent outside the circuit).  Nor is Sec. 118 of Art. 75, requiring the payment in advance of removal costs, essentially different from what was then the corresponding section of the law.  (Chap. 94 of the Acts of 1874).

   Therefore, it becomes necessary to study carefully Hoyer v. Colton, supra, which, under circumstances similar to those existing here, declared invalid Chapter 94 of the Acts of 1874.  The reason for the decision is set out in the opinion of Judge Robinson as follows:

   "Now the Act of 1874, ch. 94, provides that in all civil cases, unless the party upon whose suggestion the cause has been removed, shall pay to the clerk the costs of the record within sixty days after[***7] the passage of the order of removal, and shall also cause the record to be transmitted within the same period, the court may upon application strike out the order of removal and reinstate the case upon the trial docket.

   "The question in this appeal, is as to the power of the Legislature to prescribe such conditions, and this depends upon whether the conditions are to be considered [*186] as a restraint upon the constitutional right of removal?

   "It can hardly be pretended that an Act of the Legislature requiring a party to pay the costs of the record as a condition precedent to the exercise of the right of removal, can be considered in any sense as an enlargement of the right itself.  On the contrary, such a condition in many cases might defeat [**602]the exercise of the right altogether.  It may be said, that it is but reasonable and proper, that a party making application for the removal of a cause ought to pay to the clerk the costs of the record, but this the party may be unable to do, and in such a case his right of removal would depend not upon whether he could have a fair and impartial trial in the court in which the cause was pending, but upon a mere question of[***8] dollars and cents."

   In State v. Cobourn, 169 Md. 110, the circuit court, to which a case had been removed prior to its being at issue on the pleadings, remanded it to the court where the action had been brought.  From this action an appeal was taken.  The Court of Appeals held that the order remanding the case should not have been passed, since the right of removal could be exercised even prior to the time when an issue of fact had been raised by the pleadings.  The opinion cited many Maryland cases in which the right of removal had been passed upon, and it reaffirmed the doctrine of previous decisions that the constitutional provision granting right of removal is to be liberally construed.

   It has long been recognized that under our governmental system of separation of powers it is the duty of the appropriate court to pass upon the constitutionality of questioned legislation.  Baltimore v. O'Conor, 147 Md. 639, 654. But while such duty is well established in the law, it is also well established that there is a presumption of constitutionality and in order to justify a court in exercising the power of invalidating a statute the case must be free from doubt.  Hammond v. [***9]  Lancaster, 194 Md. 462, 471. Nor should courts assume [*187] to pass on constitutional questions unless the matter is clearly before them.  Tanner v. McKeldin, 202 Md. 569, 580.

   Here the matter is clearly before us.  Barnes has been denied the right of removal because he has failed to pay the removal costs; he having taken the position in the Circuit Court for Anne Arundel County that he had the constitutional right to remove without paying removal costs.  Many times has this Court had to pass on the removal clauses of Sec. 8 of Article IV of the Maryland Constitution.  And invariably it has held that they are to be liberally construed in favor of the right.  The duty of the General Assembly to modify existing laws so as "to regulate and give force to this provision" (i. e. for removal) has been construed as meaning that there is in the Legislature no power to pass any law which shall restrict or limit in any degree the free power to remove. And Sec. 118 does restrict or limit the right of removal to those who have first paid the removal costs.

   It is true these costs are usually very slight -- particularly since it is now possible to forward the original papers rather[***10] than a transcript. But this argument cuts two ways.  Since the costs are so small, it is no great loss to the various clerks' offices if they are not paid before removal. And small as these costs may be, the right of removal without restriction or limitation is guaranteed by the State Constitution; and this Court in Hoyer v. Colton, supra, definitely decided the prepayment of costs could not be imposed as a condition precedent to the exercise of that constitutional right.

   Therefore it is necessary to hold that Section 118 of Article 75 of the Code (1951) violates Sec. 8 of Art. IV of the Maryland Constitution, and is unconstitutional.

   Order reversed, and case remanded, with costs. 

AUSTIN v. BUETTNER et al. 
No. 211, October Term, 1955
 
Court of Appeals of Maryland
 
211 Md. 61; 124 A.2d 793; 1956 Md. LEXIS 357

 August  21, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments reversed, with costs, and case remanded for a new trial.

CORE TERMS:  door, lessee, tavern, lessor, patron, inside, leased, visitor, stairway, stair, business visitor, invitee, customer, landing, licensee, opened, flight, nuisance, landlord, ordinance, screen door, basement, restaurant, invitation, connected, possessor, occupant, stepped, unsafe, lease

COUNSEL: Francis B. Burch and John R. Royster, with whom were William J. McWilliams and Kieffner, Stinchcomb & Royster on the brief, for the appellant.

   Paul T. Pitcher and W. Lee Harrison, with whom was Richard C. Murray on the brief, for the appellees.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*64] [**795] The appellant, Austin, then a solicitor of new accounts for The Equitable Trust Company, of Baltimore, visited a tavern at Riviera Beach, in Anne Arundel County, leased and operated by one of the appellees, Vance's Tavern, Inc., and owned by [*65] the other appellees, the Buettners.  The purpose of Austin's visit was to solicit business for his employer.  He had had no previous contact[***8] with Vance's Tavern, and his call was made in the course of canvassing the Riviera Beach area for customers for a branch of the Trust Company.  He arrived at about eleven o'clock in the morning on September 16, 1952.  The weather was bright and sunny.  He opened a screen door, took a step and fell down a flight of steps just inside the door, which led to the tavern or rathskeller in the basement of the building.  He brought this suit, on his own behalf and to the use of his employer's compensation insurance carrier, to recover for injuries sustained in the fall against the appellees and against Edwin S. Vance, Olla Vance and William L. Gable individually and trading as Vance's Tavern, Inc.  The trial court directed a verdict in favor of these individual defendants, who were the officers of the corporate defendant; and the appellant concedes the correctness of that action. Motions for directed verdicts offered by the other defendants, the present appellees, were overruled.  The appeal is from judgments in favor of Vance's Tavern, Inc. (referred to below as "Vance's") and the Buettners, entered on their motions for judgment N. O. V., which were made and were granted by the trial court[***9] after the case had been submitted to the jury and the jury had failed to agree.  (General Rules of Practice and Procedure, Part Three, III, Rule 8.)

   The issues presented are: first, was Austin an invitee or licensee; second, were either (a) Vance's, (b) the Buettners, or (c) both, guilty of any negligence or breach of duty resulting in injury to Austin; and third, was Austin guilty of contributory negligence.  In addition to the arguments presented in his brief, which dealt with those issues, the appellant added a contention at the argument that the construction of the stairway was such as to amount to a trap set by the owners of the property, the Buettners.  This contention, we think, was not raised at the proper time and in the proper manner under Rule 39, Section 1 of our Rules and Regulations Respecting Appeals, and it will therefore not be further considered in this opinion.  Comptroller of the Treasury v. Aerial Products, Inc., 210 Md. 627, 124 A. 2d 805.

   [*66] 1. Was the Plaintiff an Invitee or Licensee? Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, states the more or less traditional classification of those who go upon the premises of others [**796] [***10]by consent or invitation as (1) bare licensees or volunteers, (2) those who are expressly invited or induced by the active conduct of the defendant to go upon the premises, and (3) customers and others who go there on business with the occupier.  Somewhat different terms are used in §§ 330-332 of the Restatement, Torts, which give these definitions:

   § 330. "A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission."

   § 331. "A gratuitous licensee is any licensee other than a business visitor as defined in § 332."

   § 332. "A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them."

   Comment c under § 332 states that "It is not necessary that the visitor's purpose be to enter into immediate business dealings with the possessor. The benefit to the possessor may be indirect and in the future."

   In Peregoy v. Western Maryland R. Co., 202 Md. 203, 95 A. 2d 867, the plaintiff, a truck driver, was injured while working in a railway yard by [***11]being thrown from a truck when a freight car was shoved against the truck in the course of a switching operation.  The plaintiff's employer had used a part of the railway yard for twenty-five years or so, rent free, for the storage of building materials shipped to it over this railway.  The plaintiff was engaged in loading some of such material on his employer's truck when the accident happened.  The trial court held that the plaintiff was a bare licensee, but this Court reversed that holding.  Chief Judge Sobeloff's opinion defined an invitee or business visitor in much the same terms as are used in § 332 of the Restatement, Torts, saying (at 202 Md. [*67] 207, 95 A. 2d 869): "An invitee or business visitor is one invited or permitted to enter or remain upon land for a purpose connected with or related to the business of the occupant." The Railway Company contended that the work in which the plaintiff was engaged was of no benefit to it; but this Court held that view too narrow, and in speaking of the relationship between the plaintiff's employer and the Railway Company, said: "The mutuality of the benefits is palpable from the undisputed facts." Judge Sobeloff also quoted[***12] from III Elliott on Railroads, 828, the following: "To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant."

   In Gordon Sleeprite Corporation v. Waters, 165 Md. 354, 168 A. 846, a bill collector had gone to the premises of the defendant to collect a bill due to his employer.  Finding no one in the office, he crossed a yard and entered the defendant's factory, where he fell down an unprotected elevator shaft.  This Court said that when he entered the office of the defendant, he was within his rights and was entitled to all the protections and safeguards of an invitee, but held that he lost that status when he entered a different part of the defendant's premises.

   See also 65 C. J. S., Negligence, Section 43(1), and 38 Am. Jur., "Salesmen and Soliciting Agents," Section 121, page 783, each of which[***13] speaks of mutual advantage or interest as a requisite element in establishing that one who goes upon the premises of another is an invitee or business visitor.

   The appellant entered Vance's business premises for a business purpose. There is no conflict about that fact, but the appellees contend that the business purpose [**797] was that of the appellant and his employer and not that of any of the appellees.  The mutuality of interest of the Trust Company on the one hand and of the tavern operator on the other is not so "palpable" as was that of the building materials dealer and [*68] the railroad in Peregoy v. Western Maryland R. Co., supra; yet we think that banking connections and services are of evident actual or potential business advantage or benefit to one engaged in the business of operating a tavern, just as they would be to one operating, say, a general merchandise store or a hardware store.  Accordingly, we hold that the evidence would be sufficient to sustain a finding that Austin, the appellant, was a business visitor, and not a mere licensee of Vance's when he undertook to enter the premises leased by Vance's.  His position as regards the owners of the premises, [***14] the Buettners, will be considered later. 

   2. Negligence or Breach of Duty Resulting in Injury to Plaintiff.  This case is before us on appeal from judgments N. O. V. in favor of the defendant appellees.  Accordingly, "we must assume the truth of all the evidence tending to sustain the suit[s] and of all inferences of fact fairly deducible therefrom, even though such evidence may be contradicted in every particular by opposing evidence." Rea Construction Co. v. Robey, 204 Md. 94, 97, 102 A. 2d 745, 746; Baliles v. Bryant, 207 Md. 332, 337-8, 114 A. 2d 601, 603, and cases therein cited.

   At the time of the appellant's visit to the building in which Vance's was located, there was a restaurant on the first floor which was operated by persons having no connection with Vance's.  Austin first attempted to enter the restaurant, but found the door locked.  There was another door separated from that leading into the restaurant by a space of perhaps three or four feet, most of which was taken up by a long, narrow window.  Both of these doors opened on a public highway.  Austin had had no prior engagement or plan to visit Vance's or the restaurant or any other specific place of business. [***15] He was simply going from door to door of business establishments in the Riviera Beach area to solicit customers for his bank.  The outer door leading to Vance's tavern was open and was fastened back across the narrow window.  There was also a screen door at the entrance to Vance's, which was closed.  Austin opened the screen door, stepped inside and fell down the stairs leading to the tavern.

   [*69] These stairs came right up to the doorsill.  The top of the sill was five inches above the outside sidewalk, and the tread of the topmost step was eight inches below the top of the sill.  The sill itself was fourteen inches from the outside to the inside. The stairs were four and a half feet in width. Most of the risers were eight inches in height from one tread to the next, but one was seven and a half inches, another was seven and three quarters inches, and the bottom one was eight and a half inches in height.  The average was eight inches.  The treads were nine and a half inches deep, of which about an inch to an inch and a quarter projected over the top of the riser just below.  There was a handrail on each side of the steps and there was a wall light inside the door at a height[***16] described by an architect as being at eye level as one entered the door. He expressed the opinion that, largely because of the position of this light, the lighting was inadequate.

   The premises involved in this case are the same as those which were involved in Burkert v. Smith, 201 Md. 452, 94 A. 2d 460, but the stairs here involved were built after the accident which gave rise to that case.  At the time when these stairs were built, the Anne Arundel County Building Code contained two provisions which appear to have been violated by the manner in which the stairs were constructed.  The stairs were more precipitous than was permitted by the Building Code, and there was no landing inside the doorway.  With regard to the latter point, Section 610, Paragraph 61, Clause (d) of that Code provided:

   [**798] "No exit door shall open immediately on a flight of stairs but a landing the length and width of which is not less than the width of such door, shall be provided between such door and such stairs. No riser shall be located within one foot of an exit door."

   It is suggested that the second sentence of this Clause is in conflict with the first and that it renders the first[***17] clause nugatory.  A more reasonable construction would be that the second sentence is mere surplusage. Of course, all parts of a statute or ordinance are to be given effect where possible; and we do not find it necessary to adopt either of the above [*70] constructions in this case.  As the appellant suggests, the second sentence can be given a meaning which would avoid conflict with the first.  Such a meaning would prohibit a riser within one foot of the door if one stepped from a landing inside the door onto stairs running parallel with the outside wall and so approaching the door from either side, rather than from directly in front of it. 

   We accordingly hold that the construction of these stairs without a landing in front of the outside door constituted a violation of the above-quoted clause of the Anne Arundel County Building Code.

   The appellees next urge that even if there was a violation of the Building Code, that alone is not enough to entitle the plaintiff to recover -- it must be shown that the violation was the proximate cause of the plaintiff's injury. They then say that since no one knows -- not even the appellant -- how he fell, there is no way of establishing[***18] any causal connection between the violation of the Building Code and the injuries which he sustained.

   It is the rule in this State that the mere violation of a statute or ordinance will not support an action for damages, even though it may be evidence of negligence, unless there is legally sufficient evidence to show that the violation was the proximate cause of the injury.  See Gosnell v. B. & O. R. R. Co., 189 Md. 677, 57 A. 2d 322; Maggitti v. Cloverland Farms Dairy, Inc., 201 Md. 528, 95 A. 2d 81; State, Use of Parr v. Board of County Com'rs of Prince George's County, 207 Md. 91, 113 A. 2d 397, and cases therein cited.

   Even if there had been no Building Code provision in this case, we think that the evidence was sufficient for a jury to find that there was negligence in having a flight of steps leading downward from inside a door opening onto a public highway.  A person coming from the sunlight of outdoors, as the appellant did, into an inadequately lighted interior, without warning that immediately inside the door there were steps going down to the basement, would be very likely to fall.  There was testimony of the architect as to the inadequacy of the lighting, [***19] and there was a conflict between the testimony of the plaintiff and that of the defendants with regard to [*71] whether or not there were warning signs.  The plaintiff testified that he saw none; two of the defendants testified that there were signs reading "Step Down".  Even if the signs were there, there is a serious doubt as to whether they gave an adequate warning of the danger ahead.  "Step Down" would seem more likely to suggest that there was one step down to a somewhat lower level of the floor inside than the level of the pavement outside, rather than immediate entry upon a stairway leading to a lower floor.

   In Skidd v. Quattrochi, 304 Mass. 438, 23 N. E. 2d 1009, the plaintiff went to the defendant's premises to examine an automobile which had been demonstrated to him.  After looking at the car, he went into the defendant's building to go into the office.  He opened a door, stepped inside and fell down a flight of steps just inside. To get in he had to step up on a sill about six inches high and six or seven inches in width.  There was no landing on [**799] the inside. A judgment for the plaintiff was affirmed.  The Supreme Judicial Court of Massachusetts said: [***20] "The plaintiff was entitled to rely to a reasonable extent upon appearances, even though he misjudged the actual situation.  * * * There was sufficient evidence to warrant the finding of the judge that the defendant's negligence was the cause of the plaintiff's injuries * * *.  The stairway was steep and made dangerous by the absence of any landing at its top."

   The presence of steep steps and the absence of a landing at the top were the two facts which the Massachusetts Court pointed out as evidence of negligence.  These same facts are present in the instant case, and both the steepness of the stairs and the absence of the landing were in contravention of the Building Code.  We think it plain that these facts would be sufficient in and of themselves to support a finding of negligence.  The fact that they also constituted violations of an applicable ordinance does not deprive them of probative value in establishing negligence.  See State, Use of Parr v. Board of County Com'rs of Prince George's County, supra, in which the breach of a statutory duty to protect the latch of an emergency door in a school bus against accidental or unwarranted release was held a sufficient basis for[***21] imposing liability upon [*72] the Board of Education, where the bus struck a hole in the road and the door flew open and a child was thrown out.

   In Burkert v. Smith, above referred to, which arose in these same premises, the danger inherent in the steps there involved was much less than the danger inherent in the steps involved in the present case.  In that case, a woman waiting for her husband to finish drinking a beer on the premises stood just inside the door, with her back to the steps which then led to the basement. As someone else was about to enter the premises and opened the door, she stepped backwards to get out of the way and fell down the steps.  A judgment for the defendant entered on a directed verdict was reversed, and both the negligence of the defendants (two of whom were the Buettners) and the contributory negligence of the plaintiff were held to be questions for the jury.  The basis for a possible jury finding of negligence in that case consisted of having an unguarded stairway so close to the entrance.  Judge Henderson dissented on both primary and contributory negligence.  His views on the question of primary negligence point up several factors not present[***22] in that case which are present in this.  He said (201 Md. 461-2, 94 A. 2d 464): "There are few buildings anywhere that do not contain stairways, and it is not suggested that the existence of a stairway is negligence per se. But it is now held that the mere location of a stairway adjacent to a door is sufficient to charge a landlord with negligence.  There must be thousands of buildings, erected in full compliance with the building codes, where such a condition exists.  Apartments with doors opening on stair landings are a familiar example.  There is no evidence that the stairway in question was improperly constructed, defective or badly lighted.  To correct the defect found it will apparently be necessary to remodel the whole structure and move the staircase to an undetermined distance from any door."

   Here we have a stairway immediately adjacent to a door, with no landing at all, constructed in contravention of the Building Code and said to be badly lighted.  The problem of moving "the staircase to an undetermined distance from any door" was solved by bringing it right up to a doorsill, which hardly seems likely to reduce the risk of injury.

   [*73] In Recreation Centre [***23]  Corporation v. Zimmerman, 172 Md. 309, 191 A. 233, the proprietor of a bowling alley was held liable to a non-paying spectator, who was considered as only a gratuitous licensee, for injuries sustained by falling down steps leading from seats for spectators.  The fall was due to one step being twice as deep as the others.  The decision of this Court was not unanimous, but a majority concluded that a visitor, though exercising [**800] care, could have been misled by the condition and that the proprietor might be found lacking in ordinary care in not foreseeing the danger and acting accordingly.  Chief Judge Bond, in writing the opinion, pointed out that "The tendency to assume that a stairway descends regularly from the top to the bottom is a natural one, of which any occupier of premises might be required to take notice." The tendency not to expect stairs to plunge down from immediately inside a public door also seems a natural one, which could also have been foreseen by the defendants.

   We have not, up to this point, made any differentiation in responsibility as between the lessee, Vance's, and the owners of the building, the Buettners. Vance's was in possession, and we think[***24] that even though the lessee may not be chargeable with violation of the Building Code, yet there was sufficient evidence of negligence on its part towards Austin, a business visitor, to warrant the submission of the case to the jury, and that it makes no difference so far as the possible liability of Vance's is concerned whether Austin is regarded as a "patron" under the Restatement's definition (Torts, § 332, Comment a) or as some other kind of business visitor. Restatement, Torts, § 343.

   Insofar as possible liability on the part of the Buettners on grounds of unsafe construction of the stairway and violation of the Building Code is concerned, we think that the evidence was sufficient to warrant the submission of these questions to the jury.  There remain for consideration other defenses based upon rules of the law of landlord and tenant relating to a lessor's liability or non-liability for the defective condition of leased premises. Specifically, questions are presented with regard to public use of the premises and the extent thereof, and with regard to whether the appellant was within the class [*74] of visitors to whom the lessors might be liable for the [***25]alleged unsafe construction of the stairway and violation of the ordinance.

   The exact status of the visitor who was injured was not discussed in Burkert v. Smith, supra. Both such a question and the extent of the liability of the lessor, as distinguished from that of the lessee, were carefully considered in Sherwood Brothers, Inc. v. Eckard, 204 Md. 485, 105 A. 2d 207. In that case the plaintiff visited a filling station owned by an oil company and operated by a lessee for the purpose of delivering chains which he had previously sold to the lessee. The plaintiff felt badly, and at the invitation of the operator, sat down in a chair outside the greasing room.  With the consent of the operator he later moved inside, and sat down in the greasing room.  While he was there, a car which the operator was greasing rolled off the greasing lift and injured the plaintiff.  He sought to hold the owner liable because of the lack of an automatic locking device on the tracks of the lift, but this Court held that the true cause of the plaintiff's injury was the lessee's failure to take proper precautions, as by the use of wooden chocks, to keep the car from rolling off the lift.  It was[***26] also held that if the lessor were under any liability to persons visiting the filling station because of its "public" character (which was not passed upon), such liability would not extend to a part of the station, the greasing room, into which the public were not intended to be admitted.  The lessor was held entitled to a directed verdict, and the judgment below for the plaintiff was therefore reversed.  (The jury found a verdict in favor of the lessee, who had also been made a defendant, and there was no appeal from the judgment on that verdict.)

   Judge Hammond, in writing the opinion of the Court in the Sherwood Brothers Case, made a thorough review of the subject.  In it, he stated the general rule that the landlord is liable for injuries to persons on the leased premises, such as guests or customers of the lessee, only to the same extent as he is liable to the tenant himself.  He also stated the recognized exception to [**801]this rule where the leased premises are to be used for public or quasi-public purposes, so that large numbers [*75] of patrons may be expected to visit the premises, and said: "In such case, the landlord has been held to an obligation to[***27] use ordinary diligence to see that the property leased is in a reasonably safe condition at the time of the lease." He cited Tiffany, Real Property, 3rd Edition, Vol. 1, Section 107, and the Restatement, Torts, § 359.  This Section, the opinion continues, "states that where a lessor leases his land for a purpose which involves admission of a large number of persons as patrons of his lessee, he is subject to liability for bodily harm caused to them by an artificial condition existing when the lessee took possession, if the lessor knew or should have known of the condition and realized, or should have realized, the unreasonable risk to them involved therein and had reason to expect that the lessee would admit his patrons before the land was put in reasonably safe condition for their reception.  The comment points out that liability is limited to patrons who are admitted for the particular purpose for which the land was leased and excludes business invitees on the land for their own purposes.  Examples of such leases given are for an exhibition rink, a baseball park, a steamship wharf and a bathing beach." (204 Md. 490, 105 A. 2d 209).

   The opinion also cited earlier Maryland[***28] cases in accord with § 359 of the Restatement, Torts: Albert v. State, Use of Ryan, 66 Md. 325, 7 A. 697, involving a defective wharf furnishing the only means of ingress and egress to a summer resort; Owings v. Jones, 9 Md. 108, involving a vault under a public way into which a passerby fell as a result of a defective cover.  This vault was constructed in violation of a city ordinance. Swords v. Edgar, 59 N. Y. 28, which involved a defective wharf, was also cited.  This case was placed upon the ground that the wharf was substantially an extension of a highway and that in its defective condition it constituted a nuisance, for which the owner was liable.  It may be added that in State, Use of Bashe v. Boyce, 73 Md. 469, 21 A. 322, the rule of the Albert Case was restated, but was found inapplicable because knowledge, at the time of entering into the lease, of the existence of a defective plank in a wharf was not brought home to the owner.

   Judge Hammond went on to point out that the early cases [*76] which led to the establishment of the exception to the general rule of non-liability of the lessor either involved, or were closely analogous to, nuisances on [***29]streets or public ways, that the exception has been applied most often to places of amusement and hotels, that there has been much division of opinion as to its further extension, and that this Court refused to extend it to a rooming house in Smith v. State, Use of Walsh, 92 Md. 518, 48 A. 92.

   Although the liability, if any, of the owner is closely analogous to that of an owner in the case of a nuisance, and this fact has led to a good deal of language indicating or suggesting that the existence of a nuisance is the foundation of the lessor's liability, cases such as Albert v. State, supra, do not, as Judge Hammond points out in the Sherwood Brothers Case, involve true nuisances, but rest, rather, upon negligence.  See also Bohlen, Fifty Years of Torts, 50 Harvard Law Rev. 725, at 741-745, and a note on the Lessor's Duty to Repair, 62 Harvard Law Rev. 669, at 671-2; Webel v. Yale University, 125 Conn. 515, 7 A. 2d 215, which squarely rejects the nuisance theory and adopts negligence as the basis of liability (and also contains a comprehensive review of many cases dealing with the lessor's liability); and Oxford v. Leathe, 165 Mass. 254, 43 N. E. [***30] 92. In this last case Justice Holmes, then a member of the Massachusetts Court, did not call a defective stairway a nuisance, but in resting the owner's liability on the ground of negligence referred to a number of cases on nuisances.

   [**802] The test of liability in the Sherwood Brothers Case was whether or not the lessor's equipment there involved was or was not unsafe and dangerous in its condition at the time of the lease, regardless of the degree of care exercised in its use.  (204 Md. 493, 105 A. 2d 211). Applying a like test to the stairway in the instant case, we think that here, unlike the Sherwood Brothers Case, the evidence was sufficient to sustain a finding that it was unsafe and dangerous or potentially dangerous at the time when the property was leased, and hence that a verdict in favor of the owners should not have been directed on this issue.

   A question which did not require an answer and was therefore [*77] left unanswered in the Sherwood Brothers Case is directly presented here.  Was the property leased for such a public use as would bring the case within the scope of § 359 of the Restatement, Torts? It will be recalled that that Section [***31]speaks of "a purpose which involves the admission of a large number of persons as patrons of * * * [the] lessee." Professor Prosser in his work on Torts, 2nd Ed., Sec. 80, p. 470, criticizes this stated requirement for the application of the rule.  He says (citing cases in support of each example): "It appears quite impossible to find any justification for it, if the landlord's responsibility is a public one; and it is now rejected by the overwhelming majority of the courts.  The liability has been found in the case of small stores and shops, a restaurant, a beer parlor, a garage, a gasoline filling station, a parking lot, a voting precinct, small meetings, a doctor's office, a boarding house, and even premises across which there is a passageway used by the public.  On the other hand it is not found in the case of private dwellings, a warehouse leased for private storage, or a private pier." Without expressing agreement or disagreement with each of the numerous cases cited by Professor Prosser as involving a public use where the lessor may be held liable, and though recognizing that our own case of Albert v. State involved a large number of persons and that the opinion[***32] so stated, we do not believe that any of our prior cases have committed us to the requirement of a large number, and we agree with Professor Prosser's view that this requirement imposes an undue limitation upon the operation of the rule stated in § 359.  We think that a tavern is a public place, and that whether the number of its patrons is, or may be expected to be, large or relatively small does not affect the operation of the rule.  The practical difficulty of drawing a line between "large" and "not large" numbers of persons is too apparent to require comment (see Webel v. Yale University, supra); and the object of the exception to the general rule of non-liability of the lessor is, we think, to protect the public, regardless of the size of the particular segment of the public which may actually happen to be affected.

   We now come to the last condition here at issue upon which [*78] the liability of the lessor is predicated.  This is, as expressed in § 359 of the Restatement of Torts, that the liability runs only in favor of "patrons" of the lessee. Comment a states that "The word 'patron' denotes a licensee invited or permitted to enter the land for the purpose[***33] for which the land is leased" and refers to § 332, Comment a.

   The Comment referred to draws this distinction between two classes of business visitors: "The first class includes persons who are invited or permitted to come upon the land for a purpose directly or indirectly connected with the business which the possessor conducts thereon, as where a person enters a shop to make a purchase or to look at the goods displayed therein or where he enters a factory as an employee or to deliver raw materials.  The second class includes those who come upon the land for a purpose which is connected with their own business which itself is directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the land." This Comment later points out that under certain other Sections of the Restatement of Torts, including [**803] § 359, there are occasional instances where the possessor of land may be under a different duty to business visitors of one or the other of these classes, and states that "when this distinction is important, a business visitor of the first class is hereafter described as a patron."

   Comment b under § 359 is headed "Ambit [***34]  of Liability" and reads in part as follows:

   "The liability stated in this Section is based upon the fact that the lessor knows that the land is leased for the purpose of being thrown open to a considerable number of persons for entry for a particular purpose while in the same dangerous state in which it is when he gives possession to his lessee. Therefore, he is subject to liability only to those patrons whom the lessee admits to the land for that purpose.  He is not subject to liability to those licensees whose character as business visitors is derived from the fact that they come upon the premises primarily upon their own business concerns, such as persons [*79] coming upon the premises to deliver provisions or the like."

   Professor Prosser (op. cit., p. 470) states that "The lessor's liability extends only to those parts of the premises which are in fact thrown open to the public, and to those invitees who enter for the purpose for which the place was leased." See also 38 Am. Jur., Negligence, § 99, pp. 759-761.  Clearly a customer entering a tavern to buy a glass of beer would be within the group to whom the lessor may be liable.  There would seem to be[***35] little doubt that a salesman for a brewery from which the tavern keeper habitually purchased beer who came in to obtain a usual order would also be within the group.  A salesman for a competing brewery which had never before done business with this tavern keeper would perhaps be a little more remote, but would still seem to be within the group.  Many other cases might be supposed shading off as to products or services, such, for example, as a would-be seller of paper napkins for use in the tavern, or a salesman of mops or cleaning compounds, or one seeking employment as a night watchman, or an insurance agent seeking to sell a fire or burglary insurance policy.

   The Restatement's definition of a "patron" is not limited to a customer, and the problem in this case would seem to be the scope of the term, "the purpose for which the land is leased." The reasoning based upon analogy to nuisance cases which has been influential in this State (and, we think, also in others) in determining the liability of the lessor to business visitors of the lessee, would sustain a broad, rather than a narrow, meaning of the term.  Indeed, it suggests that in such cases the distinction between a patron[***36] and other business visitors may be over refined.  Also, if one approaches the question from the negligence law point of view of the foreseeability of injury to others, it is quite foreseeable that the persons who will visit the lessee for business purposes will not be limited to his customers. Visitors for other business purposes will doubtless be less numerous than customers, but it is hardly to be supposed that a retail business establishment of any sort could be conducted without business dealings with persons other than customers.

   [*80] The line of demarcation between patrons and other business visitors of the lessee may not always be easy to draw because of the difficulty of determining whether mutuality of interest does or does not exist.  This problem seems inescapable in applying the rules stated by the authorities above cited. Perhaps as brief and satisfactory a key as any to this question may be found in Comment a under § 343 of the Restatement, Torts, where the difference between the duty of one in possession of land to a gratuitous licensee and to a business visitor is explained.  There it is said that "the visit of a business visitor is or may be financially[***37] beneficial to the possessor." Although in many situations (such as those referred to in Comment h [**804] under § 332 of the Restatement, Torts) this is not the only measure of the lessor's responsibility, it seems a practical test for determining the mutuality of interest of the lessee and of a visitor in such a case as this.  Thus, if the actual or potential financial benefit to the occupant is directly connected with the business conducted on the leased premises, we think that it would be sufficient to sustain a finding that the visitor was a "patron" within the meaning of § 359 above cited, and we need not pass upon the validity of the distinction between a patron and other business visitors. We think it could be inferred from the evidence in this case that the plaintiff's visit to Vance's could have been financially beneficial to the latter and that it was therefore sufficient to warrant the submission of the case to the jury on this question. Cf. Gordon Sleeprite Corporation v. Waters, supra, involving a bill collector making a "professional" call.  See also Hartman v. Miller, 143 Pa. Super. 143, 17 A. 2d 652, in which a salesman sitting in the waiting[***38] room of a prospective customer was held to be a business visitor or invitee. (The defendant was held not liable because of lack of proof of negligence.)

   Although the question was not raised in Burkert v. Smith, supra, as to the status of the plaintiff, who plainly had no intention of becoming a customer of the tavern operated by the lessee, the Court spoke of her as an "invitee" and cited and relied upon cases involving customers of stores.  A judgment on a directed verdict in favor of the lessors, as well as a like judgment in favor of the lessee, was reversed, and an inference [*81] might be drawn from this that the plaintiff was considered as a patron of the lessee. That, however, would seem to be pressing the inference rather far, and the Court made no such express holding.

   On the other hand, two Maryland cases in which persons have been held to be licensees and not invitees or business visitors and the landowner or occupant has been held not liable for injuries to them arose on very different facts from those here presented and emphasized the element that the visitors were on the land of another for their own purposes or convenience.  See Benson v. Baltimore Traction [***39]  Co., 77 Md. 535, 26 A. 973, and Myszkiewicz v. Lord Baltimore Filling Stations, 168 Md. 642, 178 A. 856. In the latter case, the plaintiff was injured in crossing the premises of the defendant "with the consent of the defendant, but upon the plaintiff's own concerns, which involved no transaction or affairs with the defendant * * *." See also Brosnan v. Koufman, 294 Mass. 495, 2 N. E. 2d 441, where the plaintiff entered the lobby of a building open to the public to mail a letter.

   Before leaving this phase of the case it may be well to add two things.  The first is that the invitation to come upon the premises need not be express, but may be implied.  Restatement, Torts, § 332, Comment b; Robey v. Keller, C. C. A., 4th, 114 F. 2d 790; Atlantic Greyhound Corporation v. Newton, C. C. A., 4th, 131 F. 2d 845. The second is that there is no evidence which would lead one to suppose that the lessor had any reason to believe that the lessee would make any structural change in the steps to make them reasonably safe for the reception of his patrons. See the Restatement, Torts, § 359, par. (b).

   3. Contributory Negligence.  On this point the case is a close one. [***40]There is not much to be added to what has already been said in connection with the question of primary negligence on the part of the defendants.

   There is confusion and possibly controversy over whether the screen door opened outward or inward at the time of Austin's accident.  We shall not prolong this opinion further by reviewing in detail the testimony on that point. Suffice [*82] it to say that two of the defendants testified that it opened outward, that the plaintiff himself said substantially the same thing when his deposition was taken, but later claimed [**805] that he had learned that it had opened inward.  This appears to have been based upon his architect's observation of the location of screw holes long after the accident and after the time when one of the defendants testified that the hanging of the door had been changed.  Yet the arrangement to which the defendants testified seems extraordinary, since it would seem impossible to open the outside door from the inside if the screen door was between and opened only outwards.  Vance said that this was the reason for the change.  However, an actual conflict of testimony on this point seems lacking, and we therefore[***41] do not rest our decision on the ground of there being a conflict on this point which must be resolved in favor of the appellant in passing on the appellees' motion for judgment N. O. V. 

   On the other hand, we think that what was said in Skidd v. Quattrochi, above cited and quoted, is as pertinent on the plaintiff's contributory negligence as on the defendants' primary negligence.  The plaintiff was entitled to rely to a reasonable extent upon appearances.  One entering from the bright sunlight might well find difficulty in seeing into the somewhat tunnel-like aperture just inside the door. The ceiling above the stairs went down at about the same angle as the stairs (as well as we can tell from a photograph), and there was a wall on each side of the steps.  According to the defendants there was a sign reading "Open" at or above the door, and both that sign and the badly placed light bulb inside operated on the same switch.  There was a dispute as to whether or not there was any warning sign; and if there was, there is doubt of its sufficiency, as we have already said.  See Morgenstern v. Sheer, 145 Md. 208, 125 A. 790, where the existence and visibility of warning signs were[***42] in dispute.

   We do not find here any such decisive act of negligence on the plaintiff's part as would require the direction of a verdict against him on this issue. Elzey v. Boston Metals Co., 189 Md. 566, 56 A. 2d 692; Hempel v. Hall, 136 Md. 174, 110 A. 210. A stairway leading down to the basement directly from [*83] an outside door is not the kind of thing one would ordinarily expect to find on going through an entrance from a sidewalk to a restaurant or tavern. Whether the plaintiff was or was not guilty of contributory negligence is a question of fact which, we think, should have been submitted to the jury for determination.

   Conclusion.  In accordance with the views above expressed, the judgments will be reversed and the case remanded for a new trial.

   Judgments reversed, with costs, and case remanded for a new trial. 

WAGNER et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE 
No. 195, October Term, 1955
 
Court of Appeals of Maryland
 
210 Md. 615; 124 A.2d 815; 1956 Md. LEXIS 493

 July  30, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  water, island, patent, navigable waters, navigable, river, shore, navigability, bridge, craft, tidal, navigable water, low water, proprietor, bounding, stream, tide, land described, ebb and flow, riparian rights, forming, navigated, engineer, surveyor, profile, harbor, deed, boat, invalid, land covered

COUNSEL: William L. Marbury and Frank T. Gray, with whom were Piper & Marbury on the brief, for the appellants.

   John R. Cicero, Assistant City Solicitor of Baltimore, with whom were Thomas N. Biddison, City Solicitor, Edwin Harlan, Deputy City Solicitor, and Lloyd G. McAllister, Assistant City Solicitor, on the brief, for the appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Brune, C. J., delivered[***5] the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*617] [**816] This is a controversy between the City of Baltimore (the "City") and the successors in interest of the late Harry M. Wagner over the validity of a patent for land described as an island in the Patapsco River in Anne Arundel County.  This patent was issued on September 10th, 1909, to one John P. Bruns.  He and others, who claimed an equitable interest in the island, joined in a deed dated September 23rd, 1910, by which they conveyed the island known as "Reed Bird Island" to Wagner.  The present suit was instituted by the City to have the patent issued to Bruns and the deed to Wagner set [*618] aside and declared null and void.  The original bill of complaint was filed on March 28, 1916, the amended bill on May 9th, the answer on June 13th and a replication on September 2nd, 1916.  Thereafter, except for the withdrawal in 1933 of certain exhibits which were subsequently refiled, the case lay dormant until May 28th, 1954.  After a substitution of parties defendant the case proceeded and was tried in the Circuit Court for Anne Arundel County and resulted in a decree setting aside the patent and declaring it null and[***6] void.  The successors in interest of Harry M. Wagner (who may be referred to collectively as the "Wagners") appeal from that decree.

   Reed Bird Island lies at about the point where the Patapsco River flows into the harbor of Baltimore, but much of the harbor east and southeast of that point is still known as the Patapsco River and it continues to be so designated until it flows into Chesapeake Bay some miles away.  The Bay, the harbor and the river for some distance above Reed Bird Island are all within the ebb and flow of the tide. The City claims to be the owner of riparian rights pertaining to land bounding on the south side of the Patapsco River in front of which Reed Bird Island grew up as a result of the deposit of mud and silt.  The principal question in the case is whether Reed Bird Island was or was not covered by navigable water when the patent for it was issued to Bruns in 1909.

   The south shore of the Patapsco River in front of which Reed Bird Island developed has been the southern terminus of [**817] a highway bridge or bridges across the Patapsco for nearly a century.  In 1856 an Act of the Legislature authorized one Richard Owens Crisp to build a bridge from Ferry [***7]Point on the north to some point on the southern shore, which was then a part of Anne Arundel County.  Crisp and one Richard Cromwell, Jr., purchased a bridgehead site near where Reed Bird Island now is (though, at least partly as a result of a fill, it is no longer an island).  The projected bridge was built and was known as the Light Street Bridge or Long Bridge. In 1878 another Act of the Legislature authorized the City and Anne Arundel County to purchase the bridge, and in 1880 they did so.

   [*619] On September 15, 1908, a survey of Reed Bird Island was made by the then County Surveyor of Anne Arundel County on a warrant issued from the State Land Office.  His survey stated that the land was not covered by navigable water. On September 10, 1909, the patent now in question was issued out of that Office to Bruns.  The Light Street Bridge was shown on this survey as crossing Reed Bird Island.

   In 1914 the Legislature authorized the State Roads Commission to construct what is now known as the Hanover Street Bridge to replace the Old Light Street Bridge. Actual construction began about 1915, but a plan in profile of the proposed bridge was approved by the Chief Engineer of the[***8] Commission on August 25, 1914.  It was based upon data gathered during a period of a year and a half to two years prior to that date and was prepared under the direction of Mr. John N. Mackall, then Engineering Surveyor for the Commission.  The Hanover Street Bridge followed a new route.  One section crossed the Middle Branch of the harbor to a point which was then in Baltimore County, another crossed the main channel of the Patapsco to a causeway across and about six feet above Reed Bird Island and a third and last span crossed from Reed Bird Island to the Anne Arundel County shore at Brooklyn.  Wagner conveyed to the State Roads Commission for one dollar a right of way across Reed Bird Island, reserving to himself certain rights of access.  The profile dated August 25, 1914, shows no part of Reed Bird Island as being above mean low water.

   In 1917, after the completion of the Hanover Street Bridges, the Old Light Street or Long Bridge was removed.
 
   Under the Annexation Act of 1918 (Chapter 82) the limits of the City of Baltimore were extended and the whole of the Hanover Street Bridges, and the connecting link which had formerly been in Baltimore County, the area which had formerly[***9] been occupied by the Old Light Street Bridge, and the southern bridgehead of both the old and the new bridges were included within the City.  Also under this Act, the City acquired title to all highways and bridges in the newly annexed area.

   In 1924 the City conveyed to a third party a part of the [*620] land which it and Anne Arundel County had acquired from Crisp and Cromwell in 1880, but reserved to itself all riparian rights in and to the Patapsco River pertaining to this property.  In 1926 the City acquired additional land in the area bounding on the river and the riparian rights pertaining thereto.

   In December, 1940, the then successors to Harry M. Wagner's title to Reed Bird Island executed a deed to the City of a part of the island lying in the bed of what was then known as "Race Street".  The deed was executed after the Commissioners for Opening Streets awarded damages for the strip in question to the City and the grantors had appealed.  The appeal was dismissed and the deed was executed in consideration for the City's agreement to go forward with this suit.

   In October, 1951, the City opened an extension of Potee Street (formerly Race Street) across Reed Bird Island. [***10] No consideration was paid therefor and apparently no agreement was made with regard thereto.  The City and the Wagners have filed a stipulation in this case, one paragraph [**818] of which reads as follows: "No advantage is to be taken by either party by reason of the delay in prosecuting or defending this suit."

   One other fact which it seems appropriate to mention at this point is that in 1900 the Baltimore & Ohio Railroad Company was granted permission by the Corps of Engineers of the U. S. Army to fill in under the bridge of the Railroad's Curtis Bay Branch across the Patapsco, provided that it left a 600 foot opening northwest of Billiken Island. This fill was made in 1900 and it seems to have contributed to the silting up of the river below that point and the building up of both Billiken and Reed Bird Islands.

   Billiken Island lay upstream -- i. e., to the southwest of Reed Bird Island. It became in part joined to the shore at some time prior to 1920 and was the subject of litigation in Melvin v. Schlessinger, 138 Md. 337, 113 A. 875, in which a patent for this island issued in 1916 was held invalid.

   The statute which is controlling as to the principal controversy[***11] in the present case is Chapter 129 of the Acts of 1862, [*621] the three sections thereby enacted now being codified as Sections 45, 46 and 48 of Article 54 of the Code (1951).  (The only amendment to any of these sections was made by Chapter 47 of the Acts of 1955 to correct an error in the numbers of the two earlier sections referred to in Section 48, which apparently occurred as the result of the insertion of what is now Section 47.) This statute has been before this Court in a number of cases.  In the present case a great deal of argument has been directed to the meaning of "navigable waters" -- whether the term should be construed as including all waters subject to the ebb and flow of the tide or only such waters as are navigable in fact.  For reasons which we shall state below, we do not consider this particular question as necessarily determinative of the case.

   The statute itself, as originally enacted (Acts of 1862, Chapter 129) reads as follows, the numbers of the Sections in the 1951 Code being inserted in brackets after the numbers of the corresponding Sections of the Code of 1860, to which these Sections were added:

   "Whereas, Doubts are entertained in regard to[***12] the extent of the rights of proprietors of land bounding on navigable waters, to accretions to said land, and to extend improvements into said waters; for the purpose of solving such doubts, therefore,

   "Section 1. Be it enacted by the General Assembly of Maryland, That article fifty-four of the Code of Public General Laws, be amended by adding thereto the following sections, to wit:

   "'Thirty-seven [45].' The proprietor of land bounding on any of the navigable waters of this State, is hereby declared to be entitled to all accretions to said land by the recession of said water, whether heretofore or hereafter formed or made by natural causes or otherwise, in like manner and to like extent as such right may or can be claimed by the proprietor of land bounding on water not navigable.

   "'Thirty-eight [46].' The proprietor of land bounding [*622] on any of the navigable waters of this State, is hereby declared to be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements, and other accretions as above provided for, shall pass to the successive owners of the land to which they are attached, as incident to their respective[***13] estates.  But no such improvement shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made.

   "'Thirty-nine [48].' No patent hereafter issued out of the Land Office shall impair or affect the rights of riparian proprietors, as explained and declared in the two sections next preceding this section, and no patent shall [**819] hereafter issue for land covered by navigable waters."

   Prior to the Act of 1862 it had been held that the Lord Proprietary became vested under the Charter of Maryland with title to the soil under navigable waters, that he could convey title thereto and that the State succeeded to these rights.  Browne v. Kennedy, 5 Harris & J. 195. Since then this doctrine has been repeatedly recognized or reaffirmed, as in Day v. Day, 22 Md. 530; Hess v. Muir, 65 Md. 586, 5 A. 540, 6 A. 673; Goodsell v. Lawson, 42 Md. 348; Sollers v. Sollers, 77 Md. 148, 26 A. 188; Cahill v. Baltimore, 173 Md. 450, 196 A. 305. As was pointed out by Judge Markell in Mayor & City Council of Baltimore v. Canton Co., 186 Md. 618, 630-631, 47 A. 2d 775, 781, "For over 200 years, until 1862, the State (and[***14] the proprietor or the colony) patented to individuals, subject to the public rights of navigation and fishery, fee-simple title to land under water."

   Since the passage of Chapter 129 of the Acts of 1862 that can no longer be done, as the case just cited indicates and has been held in other cases, including Day v. Day, supra; Sollers v. Sollers, supra; and Linthicum v. Shipley, 140 Md. 96, 116 A. 871.

   The first question to be determined is whether or not Reed Bird Island was covered by navigable waters at the time when [*623] the patent for it was granted, September 10, 1909.  We think that the testimony was ample to support the Chancellor's conclusion that it was then covered by water. We shall consider later whether it was navigable or not.  The State Roads Commission's plan in profile of the Hanover Street Bridge above referred to is alone almost conclusive since the testimony makes it clear that the island was gradually building up over a number of years, so that evidence to the effect that it was under water later than 1909 seems both relevant and persuasive as to its underwater condition in 1909.  In addition, there is a U. S. Coast and Geodetic Survey chart corrected[***15] to November, 1904, which indicates that Reed Bird Island was then below mean low water. There is also testimony from several persons who lived in the neighborhood that it was covered by water in 1908 and 1909, though there was also some testimony to the contrary on behalf of the appellants as well as the surveyor's statement.

   With the fact in mind that the island built up over a period of years, the testimony of Mr. Mackall is highly significant.  He was actually engaged as an engineer for the State Roads Commission in the construction of the Hanover Street Bridge across Reed Bird Island, and he had been familiar with the locality for about two years prior to the actual construction work.  His knowledge of the area was necessarily thorough and exact and extended over the years from 1912 to 1915.  His testimony showed that during that period boats of the State Roads Commission passed over Reed Bird Island, that the island was below water not only at high tide, but at normal low tide.

   There is the statement on the surveyor's certificate that the land was not covered by navigable water. Whether that statement may have been due to his own idea of what constituted "navigable water" [***16] we cannot tell.  It is possible that at the time he made his survey he thought that no craft could traverse Reed Bird Island or that no craft of sufficient size to be significant could navigate over it.  Whatever may have been the basis for the surveyor's conclusion, we think that the evidence in this case is sufficient to sustain the Chancellor's finding that the "island" was covered by water in September, 1909. We [*624] shall now turn to the question whether the water was navigable water within the meaning of the pertinent statute.

   If we start, as we think we should, with the premise that Reed Bird Island in 1909 was covered by water, and if we follow [**820] the rule as stated in a number of Maryland decisions that the test of navigability is whether or not the waters are subject to the ebb and flow of the tide, there is an end to the case, for it is unquestioned that the Patapsco River is, and in 1909, was subject to the ebb and flow of the tide. See the following cases which state the rule of navigability in terms of whether or not the waters in question are tidal: Browne v. Kennedy, supra; Chapman v. Hoskins, 2 Md. Ch. 485; Day v. Day, 22 Md. 530; Hess [***17]  v. Muir, Sollers v. Sollers, Linthicum v. Shipley (all three cited above); and Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 4 A. 2d 757. See also a note to Gray v. Gray, 178 Md. 566, 16 A. 2d 166, in V Maryland Law Review, 314.  In some cases, such as Clark v. Todd, 192 Md. 487, 64 A. 2d 547, the general rule of public ownership of the soil under tidal waters up to the high water mark is stated; and this rule seems to be correlative with and complementary to the rule that such waters are navigable.
 
   The appellants, however, earnestly insist that the rule that navigability exists if the waters are tidal is based upon a misinterpretation of the English law made by Chancellor Kent in Palmer v. Mulligan (Cai. 307) which was erroneously accepted by others, including the Court of Appeals of Maryland, in some cases.  The appellants further urge that the tidal test has been departed from in some cases, particularly Havre de Grace v. Harlow, 129 Md. 265, 98 A. 852, Gray v. Gray, supra, and Linthicum v. Shipley, supra. The latter case, we think, lends no real support to the appellants.  It held that the patent there involved was invalid whether the waters[***18] were navigable or nonnavigable, and did not determine whether they were or were not navigable.

   Havre de Grace v. Harlow, supra, involved the question whether or not the Susquehanna River between tidewater and the Pennsylvania line was navigable. The Court cited the then Federal rule stated in The Daniel Ball, 10 Wall. 557, which recognizes that the test of navigability is navigability in fact [*625] in the natural state of the river. It was held that the Susquehanna above tidewater did not meet this test.  (The rule now recognized by the Supreme Court goes beyond the former rule in that waters which, though not navigable in fact in their natural state, may be made navigable in fact without undue cost, are navigable waters. U. S. v. Appalachian Power Co., 311 U.S. 377.) Havre de Grace v. Harlow did not undertake in terms to overrule earlier cases such as Browne v. Kennedy and Day v. Day, which it did not even refer to.

   Gray v. Gray, and Tyler v. Cedar Island Club, 143 Md. 214, 122 A. 38, which is cited and relied on in the Gray Case, dealt with patents which covered waters which were both tidal and navigable in fact, and which patents also[***19] covered marshland.  In each instance the patent was held or regarded as invalid as to the bed of the navigable streams and valid as to marshland.  The Gray Case did undoubtedly discuss navigability in fact, but it can hardly be said to have overruled Sollers v. Sollers or Linthicum v. Shipley (both supra), since it took pains to distinguish them on the ground that in both of those cases "the area for which patents were applied for was entirely submerged, and that over it the tide ebbed and flowed; while, in the [Gray Case], a large area of land, through a part of which a tide water stream flows, is embraced in the certificate of survey returned to the Land Commissioner."

   In the present case, as in many others, it makes no difference in result, we think, whether the tidal or factual test of navigability is adopted.  We therefore find it unnecessary to decide whether our ancient rule, which differs from that generally prevailing in this country should be abandoned.

   The testimony is clear that in 1908 and 1909 the Patapsco River at and above the point where Reed Bird Island [**821] was formed was navigable and was navigated by small craft. There was, indeed, [***20] considerable testimony that such craft navigated over Reed Bird Island both then and later.  In view of the finding that Reed Bird Island was submerged at mean low water, it makes no difference, in our view, in the applicability of Section 48 of Article 54 of the Code (1951) [*626] whether the water then over the island was one inch deep or several feet deep.  Hess v. Muir, supra. Where a stretch of river is navigable lengthwise, we think that all of the waters between the opposite shores or banks are comprehended within the term "navigable waters" as used in Chapter 129 of the Acts of 1862.  The testimony showed that there was a main channel in the river to the north of Reed Bird Island and another and lesser channel between that island and the southern shore of the river. The clause of Section 48 of Article 54 which prohibits the grant of a patent impairing the riparian rights of owners of land abutting upon navigable waters, as set forth in Sections 45 and 46, was held applicable to Billiken Island, which almost adjoins Reed Bird Island on the upstream side.  Melvin v. Schlessinger, supra. We think that the waters covering Reed Bird Island were equally within the meaning[***21] of the term "navigable waters" under a different clause of the same section of the same Act.  The Act clearly contemplated that parts of such waters would be or become shallow and would eventually recede entirely from alluvion which might build up and become connected with the shore. Prior to the Act of 1862 the rights of the abutting landowners depended upon whether the land was built up by growth outward from the shore or by extension inward from an island formed in the water. Linthicum v. Coan, 64 Md. 439, 2 A. 826. Under the statute, it makes no difference.  Melvin v. Schlessinger, supra.

   It is not necessary to a stream's being navigable in fact that it be capable of carrying large vessels.  Gray v. Gray; Toy v. Atlantic Gulf & Pacific Co.; U. S. v. Appalachian Power Co., all above cited.  In the Toy Case, this Court said: "To the extent of its public use in the transportation by boat of person and property, the channel of Back Creek was a highway by water, although it was not actually adapted for passage by any but small craft, such as row boats and small launches, but to that extent it continued to serve a limited public purpose while its waters in the canal[***22] bore the vessels engaged in general commerce and transportation." (176 Md. at 206, 4 A. 2d 762). Similarly, in the Appalachian Power Co. Case, the Supreme Court (at 311 U.S. 416) said: "Nor [*627]is lack of commercial traffic a bar to a conclusion of navigability where personal or private use by boats demonstrates the availability of the stream for the simpler types of commercial navigation."

   In view of our holding that the waters of the Patapsco River at the point where Reed Bird Island was forming in September, 1909, were navigable waters within the meaning of Section 48 of Article 54 of the Code (1951), and our holding that the evidence warranted the Chancellor's finding that such waters then covered the island, it is unnecessary to decide whether or not a patent for an island forming immediately off the shore of someone other than the patentee should have been granted, under Chapter 129 of the Acts of 1862 and such cases as Chapman v. Hoskins, 2 Md. Ch. 485, Patterson v. Gelston, 23 Md. 432, and Melvin v. Schlessinger, 138 Md. 337, 113 A. 875, or to decide any of the other questions raised such as various alleged defects in the survey and patent; all of which[***23] questions, as well as that upon which we base our decision, were thoroughly and ably presented on both sides.

   Decree affirmed, with costs. 

DURLING v. KENNEDY et al. 
No. 221, October Term, 1955
 
Court of Appeals of Maryland
 
210 Md. 549; 123 A.2d 878; 1956 Md. LEXIS 487

 July  13, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Appeal dismissed, with costs.

CORE TERMS:  driver, driving, express direction, entry of judgment, new trial, directed verdict, order sustaining, discharged, collision, terminate, demurrers, rear, General Rules of Practice, joint tortfeasor, right of appeal, time prescribed, final judgment, final decision, clarification, hopelessly, afterwards, piecemeal, restoring, demurred, suddenly, highway, signal, ran

COUNSEL: June L. Green, with whom was William A. Ehrmantraut on the brief, for the appellant.

   John G. Rouse, Jr., with whom were Rouse & Morton on the brief, for Mr. Edward Kennedy, appellee.

   Matthew S. Evans, with whom were McWilliams, Evans & Melvin on the brief, for Mr. C. G. Haughton, appellee.

JUDGES: Brune, C. J., and Delaplaine, Henderson and Hammond, JJ.  Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*551] [**878] This joint tortfeasor action was instituted in the Circuit Court for Anne Arundel County by Marjorie Durling against four automobile drivers, Edward Kennedy, C. G. Haughton, Hugh C. McClelland and Francis Bernard Salmon, to recover for personal injuries which she sustained in an accident on U. S. Route 1 [**879] near Berwyn in Prince George's County on July 14, 1953.

   Plaintiff alleged in her declaration that immediately[***4] prior to the accident the four drivers were all traveling in the same direction.  Plaintiff was a passenger in the third car, a Dodge sedan operated by McClelland.  Two cars were ahead of them.  Kennedy was driving the first, and Haughton the second.  Salmon was driving behind McClelland.

   In the first count, plaintiff alleged that Kennedy, the driver of the first car, stopped suddenly without giving Haughton a signal of his intention to stop; and that as a result of his negligence, Haughton's car ran into the rear of his car.

   Plaintiff further alleged in the first count that, after McClelland's car had left the road, Kennedy committed a second act of negligence by failing to maintain proper control over his car and driving it into the side of McClelland's car; and that as a result of his negligence she was seriously and permanently injured.

   In the second count, plaintiff alleged that Haughton, the driver of the second car, was driving so close to Kennedy's car that his car ran into it; and McClelland's car had to stop suddenly in a position of peril and was struck in the rear by Salmon's car; that this second collision drove McClelland's [*552]car into the rear of Haughton's[***5] car; and that she was injured as a result of Haughton's negligence.

   In the third count, plaintiff alleged that Salmon, the driver of the fourth car, was driving at an excessive rate of speed and was following McClelland's car too closely, and he negligently caused his car to collide with McClelland's car; and that as a result of his negligence she was injured.

   In the fourth count, plaintiff alleged that McClelland stopped his car without giving any warning or signal to Salmon; that McClelland failed to pay attention and thereby lost control of his car, and as a result of his negligence he caused his car to come into collision with the other three cars; and that as a result of his negligence she was injured.

   The case against all four defendants was tried before a jury, with Judge Michaelson presiding, on September 19 and 20, 1955.  At the close of plaintiff's case, Kennedy and Haughton filed motions for directed verdicts.  Judge Michaelson granted Kennedy's motion as to the first accident on the highway, and denied it as to the roadside accident.  The judge granted Haughton's motion for a directed verdict.

   Kennedy, McClelland and Salmon thereupon presented their evidence in the [***6]case, after which the judge delivered his charge and submitted the case to the jury.  After the jurors had deliberated for several hours, the foreman informed the judge that they were "hopelessly divided as to a decision." The judge accordingly discharged them.

   Kennedy, McClelland and Salmon thereafter filed motions for judgments n. o. v., but those motions were overruled.

   On November 12, 1955, plaintiff petitioned the Court for a hearing to clarify the issues in the case.  She gave the following reasons for her petition: (1) that, since the Court overruled the motions for judgments n. o. v., she is entitled to a new trial; (2) that she is unable to determine how far this action of the Court affects the issues in the case in view of the fact that the Court granted motions for directed verdicts in favor of two of the defendants; and (3) that she requests a hearing to enable her to present the rules of law which show that at the new trial she will be entitled to have all issues of the pleading submitted to the jury.

   [*553] Kennedy and Haughton demurred to the petition.  Kennedy asserted that the directed verdict in his favor as to the first accident on the highway was a final[***7] decision, and that plaintiff had not appealed therefrom within the time prescribed by [**880] law.  Haughton asserted that all of the issues in the case had been settled as to him, and that the directed verdict in his favor was a final decision, and that plaintiff had not appealed therefrom within the time prescribed by law.

   On December 27, 1955, Judge Michaelson passed an order sustaining the demurrers. It was from that order that plaintiff brought this appeal.

   Plaintiff contends: (1) that after a jury has been discharged for failure to agree, the case on subsequent trial is heard de novo and all of the issues are submitted to the jury as though no trial had previously been held; and (2) that the trial judge in this case had no right to segregate her claims against Kennedy by submitting to the jury only her claim as to the collision which she alleged occurred on the side of the road after the four cars had collided, because by that ruling she will not be able to have a new trial on her entire claim.  She argues that the issues against the four defendants are interrelated, and that without submission of her case as an entirety, she will be prejudiced before the new jury. [***8]

   One of the rules of the Court of Appeals relating to Joinder of Parties and Claims, General Rules of Practice and Procedure, part 2, subd.  3, rule 6, provides:

   "When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision [*554] at any time before the entry of judgment adjudicating all the claims."

   The purpose of this rule, which is identically the same as Rule 54(b) of the Federal Rules of Civil Procedure, is to prevent piecemeal appeals as far as possible, and thereby avoid the confusion, delay and expense which would be caused by having two or more appeals in the same suit.

   In the case at bar no judgment[***9] was entered in favor of either Kennedy or Haughton.  Moreover, there was no express determination that there was no just reason for delay, and no express direction for the entry of judgment. It is therefore clear that the directed verdicts in favor of Kennedy and Haughton did not terminate the action as to any of the claims.  Felder v. D. Loughran Co., 88 U. S. App. D. C. 139, 188 F. 2d 623; Russell v. Texas Co., 9 Cir., 211 F. 2d 740.

    In this situation we cannot consider plaintiff's contentions.  Even if any judgment had been entered, plaintiff would have had the right to appeal only within 30 days after its rendition.  Under our rules, appeals allowed from any judgment or determination of a court of law to the Court of Appeals of Maryland shall be taken within 30 days from the date of such judgment or determination, and not afterwards. Rules of the Court of Appeals, rule 2.

   The rulings of the Court below on the motions filed by Kennedy and Haughton for directed verdicts were made on September 20, 1955.  It was not until seven weeks afterwards that plaintiff filed her petition for clarification of issues. Her petition and the Court's order thereon cannot have the effect[***10] of restoring a right of appeal, even if she had such a right.

   For these reasons we must dismiss the appeal which plaintiff took from the order sustaining the demurrers to her petition.

   Appeal dismissed, with costs. 

SMITH v. STATE 
No. 174, October Term, 1955
 
Court of Appeals of Maryland
 
210 Md. 440; 124 A.2d 839; 1956 Md. LEXIS 477

 July  11, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Order affirmed, with costs, and case remanded.

CORE TERMS:  jury trial, peace, preliminary hearing, elect, duty, right of appeal, appearance, commit, bail, conferred, probable, guilt, recognizance, felonious intent, right to demand, present statute, motor vehicle, edition, inquisitorial, punishable, empowered, repealed, omission, election, session, freely, pray, jail, writ of certiorari, motion to quash

COUNSEL: William J. McWilliams, with whom were McWilliams, Evans & Melvin on the brief, for appellant.

   David Kauffman, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*441] [**839] [***3] This appeal is from an order of the Circuit Court for Anne Arundel County overruling the appellant's motion to quash a writ of certiorari, issued pursuant to a prior order of the Circuit Court, requiring a Justice of the Peace and Trial Magistrate for Anne Arundel County to transmit to the Circuit Court the entire record of proceedings in the case of "State of Maryland v. Capt. John W. Smith."

   The case originated with the filing of a sworn information with the Trial Magistrate and the issuance by him of a warrant charging the defendant, now appellant, [**840] Smith, with the violation of an ordinance of the City of Annapolis in that, [*442] after having been duly summoned to appear and testify before the Mayor and Aldermen, when he appeared, he refused to testify.  (The nature of the inquiry is not shown by the record.  We were informed at the argument that it grew out of the refusal of the appellant, who is the Captain of the West Annapolis Fire Department, to turn out his unit to join in the celebration of a victory by the Naval Academy football team.  We may venture to hope that the importance of the question presented exceeds that of the circumstances from which it is[***4] said to arise.)

   At his appearance before the Trial Magistrate the defendant was represented by able and experienced counsel.  He was informed of the charge against him and was asked how he pleaded.  His counsel entered a plea of not guilty, and the Magistrate then inquired whether the defendant wished to be tried by him (the Magistrate) or by a jury.  His counsel replied: "We would like a jury trial, request a preliminary hearing." The State objected to the granting of the preliminary hearing and contended that the defendant's request for a jury trial took the case out of the jurisdiction of the Magistrate, so that he could not proceed with a preliminary hearing. After argument, the Magistrate granted the request for a preliminary hearing. The State thereupon declined to put on any testimony, and the Magistrate dismissed the warrant.

   The State then appealed to the Circuit Court, and the defendant moved to dismiss the appeal.  That motion was granted, but the Court directed the State to file a petition for a writ of certiorari for further proceedings in the case. Such a petition was filed, the Court ordered the writ to issue, the Trial Magistrate promptly complied with it and the[***5] defendant filed a motion to quash the writ.  This motion was denied.  Judge Michaelson filed an opinion in which he stated that the dismissal of the appeal had been based upon the ground that an appeal from a Trial Magistrate to the Circuit Court was authorized by Code (1951), Article 52, Section 13 (b) only after a trial before the Magistrate.  He held that when the accused had requested a jury trial, he waived his right to any further hearing before the Magistrate and that the Trial Magistrate was then required under Section 13 of Article [*443] 52 of the Code to forward the papers to the Circuit Court and either to commit the defendant, or to admit him to bail, for his appearance in the Circuit Court for trial.  Accordingly, he held that the action of the Magistrate in granting the preliminary hearing and dismissing the warrant exceeded his powers under the Section referred to.  The appeal brings up for review the correctness of this ruling.

   The powers and duties of justices of the peace have developed over many years and a great deal of interesting legal history is concerned with their development.  To attempt to review that history to any substantial extent would prolong[***6] this opinion unduly, particularly in view of our conclusion that the present case is controlled by a statute of comparatively recent origin. We may, however, advert briefly to two historical matters.

   First, at least, up to the time of the American Revolution, the functions of justices of the peace with regard to preliminary hearings in criminal cases were largely governed by two statutes passed, respectively, in 1554 and 1555, 1 & 2 Phil. & Mary, c. 13, s. 4, and 2 & 3 Phil. & Mary, c. 10, both of which were in force in Maryland.  Under these statutes the functions of the magistrate were largely inquisitorial. See Blackstone, Commentaries, Book IV (1769), page 296; Stephen, History of the Criminal Law of England (1889), Vol. I, pages 216-229 (tracing the evolution from the inquisitorial to the judicial type of investigation or hearing); and a note by Professor Waite in 30 Mich. L. Rev. 928, et seq.

   [**841] Second.  Both before and since July 4, 1776, justices of the peace in Maryland have been authorized to try summarily a number of minor offenses.  Statutes authorizing such procedure have not been regarded as contravening the right of trial by jury or any other[***7] rights set forth in the Maryland Declaration of Rights.  One statute providing for such procedure was passed in 1777 at the first session of the Legislature held after the adoption of our original Declaration of Rights and Constitution of 1776.  See State v. Glenn, 54 Md. 572, 602-606.

   Latrobe in his work on The Justices' Practice and Hochheimer in his work on Criminal Law wrote of the situation where the Magistrate has no power to try the accused and [*444] can only commit him to await trial in the Circuit Court (or the Criminal Court in Baltimore City) or admit him to bail for appearance in such Court or else discharge him.  In any such case the accused is, of course, entitled to a preliminary hearing to determine whether he should be committed or held in bail or discharged.  Neither Latrobe nor Hochheimer seems to have considered a situation of the precise kind which we have here -- where the alleged offense is one which a justice of the peace is authorized to try, provided (1) that the accused, after being informed of his right to a trial by jury, freely elects to be tried by the magistrate and (2) that the State does not pray a jury trial, and in such a case[***8] the accused pleads not guilty and elects a jury trial. In the case of Latrobe the reason is probably not far to seek -- he wrote before any statute containing such provision was enacted.  A comparison of the extensive citations from the 8th Edition of Latrobe's Justices' Practice, published in 1889, which the appellant relies upon, with the corresponding sections of the 2nd Edition, published in 1835, will show no greater difference than in capitalization, punctuation, or the spelling of a reference to Blackstone, between the two editions. The forerunner of the present Section 13 of Article 52 of the Code was first enacted by Chapter 326 of the Acts of 1880.  See State v. Ward, 95 Md. 118, at 122, 51 A. 848, at 849. (Sec. 10 of Chapter 415 of the Acts of 1878, which was involved in State v. Glenn, supra, conferred jurisdiction upon justices of the peace to try persons accused of certain minor offenses and gave a right of appeal to the Circuit Court of a County or to the Criminal Court of Baltimore.)

   In Danner v. State, 89 Md. 220, 42 A. 965, a provision of what was then Section 11A of Article 52 of the Code (which, as amended, is now Section 13) in terms conferred[***9] additional jurisdiction on justices of the peace in several counties, concurrent with that of the Circuit Courts in all cases of assault without any felonious intent, in all cases of assault and battery and in cases of petty larceny, when the value of the property stolen did not exceed five dollars.  Petty larceny was a felony.  It was held that it was beyond the power of the Legislature to authorize a justice of the peace to try such a [*445]case, that the accused's waiver of a jury trial was ineffective, and that the right of appeal from the magistrate to a Circuit Court did not gratify the constitutional requirement for a jury trial in such cases.  In considering this phase of the matter the Court quoted that portion of the statute which provided that "if any person brought before him shall, before trial * * * pray a jury trial, it shall be the duty of any such Justice to commit such alleged offender for trial in the Circuit Court, etc." The Court then went on to say: "There is no obligation put upon the Justice to make inquiry as to the probable guilt of the accused, nor is the latter accorded the privilege of demanding such an inquiry." This statement would not have been[***10] called for if the Court had been of the opinion that the right to a preliminary hearing existed apart from the terms of the statute which was under consideration.

   In State v. Ward, 95 Md. 118, 51 A. 848, it is said that prior to the passage of Chapter 326 of the Acts of 1880 (from which [**842] Section 13 of Article 52 of the Code is derived), justices of the peace had no criminal jurisdiction except such as was conferred by the Act which created the offense and imposed the penalty.  It was held that the provisions of the Act of 1880 permitting persons accused of offenses to elect a jury trial applied only to cases which were within the additional jurisdiction conferred upon magistrates by that Act and did not grant such a right in other cases which magistrates were previously empowered to try.  A subsequent amendment of the statute eliminated the reference to additional jurisdiction, and the provisions relating to the election of a jury trial were thereafter held to be applicable to all cases which magistrates were empowered to try.  State v. Beach, 153 Md. 618, 139 A. 355. This view is reinforced and perhaps extended by Chapter 487 of the Acts of 1943 with regard[***11] to cases triable by magistrates (other than motor vehicle cases).  That statute repealed and re-enacted with amendments Section 13 of Article 52, and it also repealed all inconsistent laws and declared the intention to make uniform throughout the State (outside of Baltimore City) the method of trial, the right to demand a jury trial, and the right of appeal in all criminal cases subject to the jurisdiction of Trial Magistrates, except motor [*446] vehicle cases, whether then existing or subsequently defined, unless the statute defining such offenses, by specific reference, otherwise declares.

   Section 13 (a) of Article 52 of the Code (1951), as amended by Chapter 505 of the Acts of 1953, empowers Trial Magistrates (except in the City of Baltimore) to hear, try and determine, and to impose sentence in (a) all cases n1 involving the charge of any offense, crime or misdemeanor not punishable by confinement in the penitentiary as provided by the particular statute defining the offense (and not as provided by Section 794 of Article 27 of the 1951 Code) and not involving a felonious intent [See Yantz v. Warden of Md. House of Correction, 210 Md. 343, 123 A. 2d 601] and (b) all[***12] prosecutions or proceedings for the recovery of any penalty for doing or omitting any act in their respective counties, if the doing or omission of such act is punishable under the penal statute defining the offense (and not under Section 794 of Article 27) by a pecuniary fine or penalty or by imprisonment in jail or in the House of Correction.  All such acts or omissions are declared to be criminal offenses. The power of a Trial Magistrate to act in such cases is limited by a proviso to the effect that he can act only if the accused, after being informed of his right to a jury trial, freely elects to be tried by the Magistrate and if the State does not elect a jury trial.

n1 There are exceptions in some types of cases as noted in connection with the 1943 amendment.

    Section 13 (b) provides in part as follows:

   "and [in] all cases where * * * the accused elects to be tried by jury, or appeals from the judgment of the Trial Magistrate, the Trial Magistrate shall take from the accused his recognizance with[***13] sufficient surety conditioned for his personal appearance to answer said charge at the then [or next] session * * * of the Circuit Court * * *; and in default of the accused entering into such recognizance, the Trial Magistrate shall commit him to jail for his appearance at such Court to answer such charge, and shall at once return the recognizance, if there be one, [*447] and all papers and proceedings in such case, including a copy of his judgment (in appeal cases) * * * to the Clerk of said Court."

   Aside from the fact that provisions respecting the admission of the accused to bail are much more fully spelled out in the present statute than in the original Act of 1880, there is a very strong similarity between the magistrate's duties under the [**843] present Act and his duties under the earlier one which was before the Court in the Danner Case.  Lodgment of a part of the judicial power of the State in justices of the peace is made by Section 1 of Article 4 of the Maryland Constitution, but this is done in general terms and under Section 42 of Article 4 it is within the power of the Legislature to prescribe the jurisdiction and duties of justices of the peace. [***14] Woelfel v. State, 177 Md. 494, at 503, 9 A. 2d 826, at 829.

   We think that the construction placed upon the provisions of the Act of 1880 in the Danner Case that, if the accused elected a jury trial, no duty was imposed upon the magistrate to make inquiry as to the probable guilt of the accused and that the accused had no right to demand such an inquiry, is equally applicable to the present statute. The two courses of action which were open to the accused -- to be tried by the magistrate on a minor offense or to demand a jury trial -- were alternatives, and were the only alternatives open to him under the statute.  We find no basis for interpolating a third alternative -- to elect a jury trial and to demand a preliminary hearing, and we think that the language in the Danner Case negatives such an alternative.  We also note that the magistrate is required to follow precisely the same procedure, which is to transmit the entire record to the Clerk of the Circuit Court, whether the accused elects a jury trial in the first instance or waives a jury trial and elects to be tried by the magistrate in the first instance and then appeals.  It would be an absurdity to say that he[***15] was entitled to a preliminary hearing to determine probable guilt in the latter situation where the magistrate has already found him guilty, yet the same procedure on the part of the magistrate is prescribed in each instance, with only such variations as are necessary to conform with the state of the record in one situation or the other. Under [*448] Section 14 of Article 52, all appeals from a judgment of a Trial Magistrate are to be heard and tried de novo in the Circuit Court (and this is true even if the accused pleads guilty before the magistrate).

   Strictly speaking, the instant case seems to be one of election rather than of waiver.  Therefore, cases on waiver, such as Heath v. State, 198 Md. 455, 85 A. 2d 43, may not be directly in point; but much the same principles are applicable.  Here, the accused had a free choice between valid alternatives, just as the accused had in the Heath Case.

   The appellant relies, among authorities, upon Card v. Salmon, 2 W. L. R. 301, 97 Solicitor's Journal 650, decided in 1953.  Whatever may be the rule in England today, we think that here the question is controlled by our local statute.  A like observation may be made[***16] with regard to authorities from other States.

   In reaching our conclusions we have carefully considered an opinion rendered in 1934 by the then Deputy Attorney General, reported in 19 Opinions of the Attorney General 318, reaching an opposite view with regard to a substantially similar question which arose under the Public Local Laws applicable to Baltimore City; but we are unable to agree with that opinion.

   Since we rest our decision upon the ground that under Section 13 of Article 52 of the Code the accused, charged with a minor offense, was entitled to either a trial by jury or to a trial before the magistrate, with a right of appeal to the Circuit Court, and that the statute contemplates either a full hearing before a magistrate if the latter course is chosen or no hearing at all before the magistrate if, as was the case here, a jury trial is chosen, we find it unnecessary to pass upon the State's contention that a plea of not guilty before the magistrate would of itself amount to a waiver of a right to a preliminary hearing before the magistrate.

   Though there is some question as to whether the order appealed from in this case was a final order, we have concluded [**844] [***17] that this order should be affirmed, rather than that the appeal should be dismissed for lack of finality of the order.

   Order affirmed, with costs, and case remanded. 

BOWERSOCK v. BOWERSOCK 
No. 181, October Term, 1955
 
Court of Appeals of Maryland
 
210 Md. 427; 123 A.2d 909; 1956 Md. LEXIS 476

 July  10, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree reversed in part and affirmed in part, and cause remanded for the passage of a decree in conformity with this opinion.  Costs to be paid by the appellant.

CORE TERMS:  divorce, insanity, non-resident, desertion, permanently, incurable, chancellor, insane, decree, abandonment, psychiatry, confined, guardian ad litem, psychiatrist, prognosis, marriage, replied, notice, order of publication, personal service, insane asylum, years prior, domiciled, matrimonii, permanent, examiner, chancery, vinculo, amend, personam

COUNSEL: Eugene M. Childs, with whom were Childs and Bald on the brief, for appellant.

   Ridgely P. Melvin, Jr., for appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*430] [**910] This is an appeal from a decree dismissing the amended bill of complaint of Robert W. Bowersock, appellant, for a divorce a vinculo matrimonii from his wife, Dorothy Barrett Bowersock, appellee.

   These parties were married on May 20, 1938, in Philadelphia, Pennsylvania. They lived together until 1940.  During those two years the appellee left her husband several times and returned.  She finally left him in the spring of 1940. Three children were born as a result of that marriage, a daughter, Lorraine, eighteen, a daughter, Carolyn, seventeen, and a son, Robert, [***6] sixteen, at the time of the trial below on December 16, 1955.  The husband, who has been a resident of Maryland all his life, testified before an examiner that, after his wife left him in 1940, he tried to persuade her to return to him but she would not do so.  On March 1, 1942, she was committed to Embreeville State Hospital, Embreeville, Pennsylvania, a State mental institution.  She was taken there by her father and sister.  Three or four months previous to her entry there, she had terrible crying spells and wanted to [*431] die.  She has been in that institution since that time.  The appellant and his son live with his aunt, Mrs. Leona Cox, in Anne Arundel County, Maryland.  The two girls have been living with his wife's mother for many years.  His wife, previous to her marriage to him, was married at the age of thirteen years, and was divorced from her first husband.

   On December 13, 1955, the appellant filed an amended bill of complaint in which he alleged the aforesaid marriage, the birth of the aforesaid children, and his residence in the State of Maryland for more than two years.  He further alleged that the appellee without just cause or reason abandoned him, and that [***7]said abandonment had continued uninterruptedly for more than eighteen months prior to the filing of the bill of complaint.  He further alleged that his wife, after said desertion, became permanently and incurably insane without hope of recovery, and as a result had been confined in the aforesaid mental institution since March 1, 1942.  He prayed a divorce a vinculo matrimonii, and the care and custody of his minor children.

   Mrs. Leona Cox, the aunt of the appellant, testified before the examiner that her nephew and his son lived with her.  She further stated that during the marriage he had treated his wife well and she left him time and time again.  The desertion had continued uninterruptedly since 1940.  Her nephew has raised his sixteen year old son.  Harrison J. Gaston testified before the examiner that he had known the parties to this suit for approximately twenty-six years.  He was their mutual friend.  She was interested in her first husband.  The appellant gave his wife no just cause or reason to leave him.  The appellant was a devoted husband and gave his wife everything she wanted.  He has always acted in a proper manner.

   [**911] Dr. Eleanore R. Wright testified[***8] in a deposition that she was a psychiatrist, a graduate of a medical school and clinical director of the Embreeville State Hospital.  She came to that institution on June 27, 1955, and met the appellee in July of that year.  She was familiar with the appellee's case history.  Mrs. Bowersock was admitted to that institution on March 1, 1942, having been mentally depressed for three months.  She had neglected herself and her children.  She had had intervals of mental confusion and had expressed the desire [*432] to die.  She had lost forty pounds in the year before her admission to that institution, and had been there since March 1, 1942.  She testified that the appellee is still mentally ill.  Her thought processes are disassociated.  She is out of contact with reality.  When asked what was her prognosis of Mrs. Bowersock's condition, she replied: "Our term for the prognosis is guarded to poor.  This indicates that we cannot be optimistic about her response." She had had seventy electric convulsive treatments and also, on June 4, 1952, a transorbital leucotomy, which is brain surgery.  Recently she had been given Thorazine, which is a new drug being used in mental illnesses. After[***9] this brain surgery there was no change in her behavior except that she was "more quiet".  She further stated that at the present time appellee was not able to distinguish between right and wrong.  On cross-examination she stated that after each treatment of electric shock, she showed some improvement and also there had been some improvement in her condition since she had been taking Thorazine.  Her present condition was better than it was at the time she was admitted to the hospital.  She could not say when she would be released as cured.  When asked what were her chances of recovery, she replied: "I could only give you a very vague approximation and I would say somewhere between 30 and 50 per cent." When asked whether she could say with any degree of certainty "when she would recover within the limits of that 30 to 50 per cent chance", she replied: "No, sir.  I might clarify that by saying that we have had patients in the hospital for thirty years who suddenly recovered." She could not say that appellee's condition was permanently incurable nor could she say that it was not permanently incurable. The appellee was at the institution on an indefinite commitment.

   Dr. Arthur O. Hecker[***10] testified in a deposition that he was a physician specializing in psychiatry at the Embreeville State Hospital.  He had reviewed Mrs. Bowersock's case history at the time of her commitment on March 1, 1942.  She was mentally ill with schizophrenic reaction.  When asked whether her condition was permanent or temporary, he replied: "Frankly, I would not determine it to be either except to this [*433] extent.  It was certainly not temporary, having existed at least since March 1942 to the present time.  I cannot give a medical opinion that any illness is permanent. However, in view of the prolonged period of symptoms, the chances of recovery are lessened to the chronicity." Her mental judgment is still quite impaired.  When asked what was his prognosis of her condition, he replied: "Ordinarily the prognosis in schizophrenia of this duration and the treatment the patient has received is poor.  She has recently responded somewhat to Thorazine.  Nevertheless, experience would indicate that the prognosis remains poor."

   As a result of the aforesaid testimony the chancellor found that it did not meet the requirements of Code, 1951, Article 16, Section 35, and the facts would not entitle[***11] the appellant to a divorce on the ground of abandonment. Accordingly he dismissed the appellant's amended bill of complaint and allowed a counsel fee of $40.00 to the counsel for appellee.  From that decree the appellant appeals.

   Code, 1951, Article 16, Section 35, supra, Chapter 497 of the Acts of 1941, provides in part: "A divorce a vinculo matrimonii may be granted when either husband or wife has become permanently and incurably insane, provided that no divorce shall be granted under this section unless such permanently incurable insane person shall have been confined in an insane asylum, hospital or other similar institution for a period of not [**912] less than three years prior to the filing of the Bill of Complaint, nor unless the Court shall find from the testimony of two or more physicians competent in psychiatry that such insanity is permanently incurable with no hope of recovery, and provided further, that no such suit shall be maintained unless one of the parties is an actual resident of this State, and shall have resided therein for at least two years immediately prior to the institution of the proceedings.  * * * Upon the return of process duly served, or upon[***12] proof of due publication, as the case may be, the Court shall require the Committee to appear and answer for said defendant, if one has been so appointed, and if not, the Court shall appoint a Guardian ad Litem to appear and answer for said defendant." It also provides that where the plaintiff is the husband, the [*434] court may require him to pay alimony, support and maintenance for the benefit of the wife and also that the court may modify or revoke any order relating to the custody of infant children and their support.  All court costs, including the compensation of the defendant's attorney, shall be paid as the court shall direct.
 
   Upon the petition of the husband, who alleged that his wife had no legal guardian, George J. Crowley was appointed guardian ad litem under the provisions of Article 16, Section 35, supra, for Mrs. Bowersock, and Ridgely P. Melvin, Esquire, was appointed counsel for the guardian ad litem.  Article 16, Section 35, supra, enacted in 1941, first came before this Court in the case of Dodrer v. Dodrer, 183 Md. 413, 37 A. 2d 919, decided June 13, 1944.  In that case the question was whether the defendant had been confined in an insane[***13] asylum, hospital or other similar institution for a period of not less than three years prior to the filing of the bill of complaint.  There, it was pointed out that the determination of causes for which divorces may be granted is a matter for the Legislature.  The policy underlying such determination, whether narrow or broad, restricted or liberal, was for legislative decision.  After discussing the rules to be followed in statutory interpretation, and the requirement of confinement for three years, it was there said:

   "The other proviso is that the court must find from the testimony of two or more physicians competent in psychiatry that the insanity is permanently incurable. This does not mean that, if two psychiatrists testify to that effect, the court must make such a finding.  The court makes its finding from all the facts before it, but this must include such testimony by two psychiatrists. In the case before us we have this testimony."

   The above quoted comment might be interpreted to mean that, unless two psychiatrists testify definitely that the insanity is permanently incurable, with no hope of recovery, the court could not so find.  However, in the case of Roberts v. [***14]  Roberts, 198 Md. 299, 82 A. 2d 120, where the question presented was also whether the wife had been confined for the period of not less than three years prior to the filing of the bill of complaint, this Court there said: "When the [*435] Legislature added to the causes for divorce that of permanent and incurable insanity, it did not leave this question to be determined as other questions are determined, by general proof, but required certain specific facts to be shown.  No divorce on such grounds could be granted unless the person claimed to be insane should first have been confined in an insane asylum, hospital or other similar institution for a period of not less than three years prior to the filing of the bill, and, second, not unless the court should find from the testimony of two or more physicians competent in psychiatry that such insanity is permanently incurable, with no hope of recovery .  We had this statute before us in the case of Dodrer v. Dodrer, 183 Md. 413, 37 A. 2d 919, and held that the confinement included the placing of a patient in a private home under the supervision of the person who conducted the hospital or insane asylum. We did not, however, [***15] and could not, change the positive prohibition of the Legislature against granting a divorce for insanity unless the two mentioned requirements of proof were complied with." (Italics supplied.) We are, therefore, of opinion that the court may determine from the testimony of two or more physicians competent in psychiatry that such insanity is permanently incurable, with no [**913] hope of recovery, although the two psychiatrists do not so directly testify in the words of the statute.

   In the instant case the testimony of Dr. Hecker might support a finding that the insanity of Mrs. Bowersock is permanently incurable, with no hope of recovery.  However, such an inference cannot be drawn from the testimony of Dr. Wright when she says that Mrs. Bowersock has a thirty to fifty percent chance of recovery.  The statute requires testimony from two psychiatrists and, as we have only the testimony of one to that effect, we agree with the chancellor that the divorce should not have been granted on the grounds of insanity.

   As to the divorce on the grounds of desertion, in the opinion originally filed in this case we were of opinion that the chancellor had no jurisdiction to grant a divorce[***16] for desertion. The jurisdictional question was not mentioned in the argument or the briefs.  A motion for reargument was filed by the appellant citing authorities on this point for the first time.  The appellee, [*436] although committed to Embreeville by two physicians, has not been adjudicated insane. Under Code, 1951, Article 16, Section 31, giving the equity court jurisdiction in actions for divorce, it is provided in part: "* * * if the party against whom the bill is filed be a non-resident, or a person who may be proceeded against as a non-resident, then the same process by summons, notice, or otherwise, shall be had to procure the answer and appearance of the defendant, as is had in other cases in chancery; * * *."

   The original bill of complaint filed in this case prayed a divorce solely on the grounds of insanity. Code, 1951, Article 16, Section 149, provides: "In all cases in chancery, if any person non compos mentis and not residing in this State is a defendant, the court may order notice to be given to such non-resident, by publication in some newspaper, to appear and answer such bill or petition, and upon the failure of such non-resident to appear and answer [***17]the bill or petition, such decree may be passed as the circumstances of the case may require; provided no decree shall pass unless the allegation in the bill or petition are fully proved, under a commission to be issued for that purpose, or before one of the examiners of the court; the court shall assign a solicitor for such non-resident defendant to cross-examine the witnesses, which solicitor shall be paid by the plaintiff, or out of the estate of the defendant, at the discretion of the court." Code, 1951, Article 16, Section 160, provides for personal service of the order of publication. The original bill was served upon the appellee as well as upon the superintendent of the hospital where she was confined. In referring to personal service of the order of publication on a non-resident, this Court said in Fisher v. Parr, 92 Md. 245, 272, 48 A. 621: "It is not supposed that it was intended by this enactment to give equity Courts jurisdiction of non-residents in proceedings in personam, but that, as was said in Long v. Home Ins. Co., 114 N. C. 465, 469, 19 S. E. 347, the method of service prescribed by the Act of 1896 'is a convenient and probably a more sure way of bringing[***18] home to the non-resident the notice which formerly was made solely by publication * * * but that the service of process in another State is valid only in those cases in which the publication of the process would be [*437] valid.' As we have already said, however, the actual service of process beyond the limits of the State cannot give our Courts jurisdiction over the persons of non-residents in actions in personam." It was said in Epstein v. Epstein, 193 Md. 164, 170, 66 A. 2d 381: "In a suit for a divorce or separation the only res in Maryland which will support jurisdiction in rem is the marital status when one or both parties are domiciled in Maryland." See Williams v. North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 143 A. L. R. 1273. The husband here has been domiciled in Maryland all of his life.

   Under the provisions of General Equity Rule No. 17 the chancellor allowed the amendment of the bill of complaint.  The bill of complaint was amended praying for a divorce on the grounds of abandonment before the taking of testimony. General [**914] Equity Rule No. 22 provides in part: "In every case where an amendment to the bill shall be[***19] made after answer filed, a written notice of such amendment, or a copy thereof, shall be served upon the defendant or his solicitor of record, * * *." An answer was filed by the guardian ad litem through his attorney to that amended bill of complaint.  It was said in Dougherty v. Dougherty, 187 Md. 21, 29, 48 A. 2d 451: "The decisive question on this appeal is whether testimony should have been admitted to show that complainant was guilty of adultery.  The chancellor refused this testimony because (1) the answer and cross-bill did not allege adultery, and (2) defendant could not properly amend after the trial commenced.  By express provision of statute, either the complainant or defendant in any case in a court of equity has the right to amend the bill of complaint or answer at any time before final decree, so as to bring the merits of the case fairly to trial.  Code, 1939, Art. 16, Sec. 18.  We have held, however, that the right to amend is not a right ex debito, but is subject to the sound discretion of the court.  In other words, it may be stated as a general rule that the chancellor is clothed with discretion in allowing or refusing amendments at any time before final[***20] decree, and such discretion will not be reviewed in the absence of its abuse." We are therefore of opinion that the appellee was properly before the chancellor for the purpose of determining [*438] whether the appellant was entitled to a divorce on the grounds of desertion.

   As to the facts of desertion, the appellee finally left her husband on March 24, 1940.  Chapter 90 of the Acts of 1941, reducing the period of abandonment from three years to eighteen months, Code, 1951, Article 16, Section 33, became effective June 1, 1941.  The eighteen month period of abandonment in this case expired September 24, 1941, and the appellee was not committed to Embreeville until March 1, 1942.  The crying spells did not develop until three or four months before that date, which was after September 24, 1941.  There is no evidence of any insanity until after September, 1941.  There is no evidence that the wife had any intention of returning to her husband.  It has been generally held that a divorce for desertion may be obtained from an insane defendant where the cause of action accrued during the sanity of the defendant, notwithstanding the subsequent insanity. 17 Am. Juris. page 198; 27[***21] C. J. S. page 598; Harrigan v. Harrigan, 135 Cal. 397, 67 P. 506; Steed v. Steed, 54 Utah 244, 181 P. 445; 4 A. L. R. 1334; 19 A. L. R. 2d 171, 174; Toepffer v. Toepffer, 151 Kan. 924, 101 P. 2d 904; Cain v. Milburn, 192 Iowa 705, 185 N. W. 478; King v. King, 214 Ky. 171, 283 S. W. 73; Fisher v. Fisher, 54 W. Va. 146, 46 S. E. 118; Gartner v. Gartner, 109 N. J. Eq. 112, 156 A. 673; Heim v. Heim, 35 Ohio App. 408, 172 N. E. 451. It was said in Wright v. Wright, 125 Va. 526, 99 S. E. 515, 4 A. L. R. 1331: "While it may be regarded as settled by the great weight of authority that the insanity of the defendant is no bar to the prosecution of a suit for divorce for a cause which accrued before such insanity began, yet the precise question presented by this record appears to have arisen in very few cases.  If the desertion had continued for three years before the insanity of the defendant intervened, then the cause of action would have been complete and the insanity would have been no defense." It was said by this Court in Noellert v. Noellert, 169 Md. 559, 561, 562, 182 A. 427: "It will be observed that appellant's allegations are that[***22] subsequent to the abandonment and desertion for which she obtained her decree, appellee was adjudicated [*439] an incompetent, and she now believes that even before the decree and at the time of the abandonment of which she complained in her bill his mental condition was such that she was not justified in seeking a divorce. This is far short of alleging his incompetency at the time of the desertion or within three years thereafter, and for all that is alleged in her petition, defendant may have been entirely sane at the time of the desertion and continued in that state until near the time of his adjudication almost five years later.  Hence the allegations of the petition are not in conflict with the theory that appellee was sane [**915] at the time he deserted appellant and that such sanity continued the full statutory period of three years, and that some time subsequently thereto he became non compos, in which case there seems to be no division of authority that such insanity, although existing at the time the suit for divorce was brought, would not be a bar to the suit.  Wright v. Wright, 125 Va. 526, 99 S. E. 515, 4 A. L. R. 1331, and cases there cited; [***23] 34 A. L. R. p. 221; 9 R. C. L. p. 375; Miller's Equity Procedure, p. 21; 19 C. J. p. 77; Schouler, Marriage, Divorce, Separation (6th Ed.) sec. 1679.  From the authority last cited we quote as follows: 'While a divorce will not be granted for acts committed during insanity, a divorce may be obtained for acts happening prior thereto notwithstanding the subsequent insanity. So desertion may be committed and a divorce obtained therefor although the defendant became insane before the action was brought, where he was of sound mind when the desertion for the statutory period occurred.' See also Stigers v. Brent, 50 Md. 214."

   We are therefore of opinion that the appellant should have been granted a divorce on the grounds of desertion and the decree will be reversed and the case remanded for the passage of such a decree.

   At the argument in this Court, counsel for the appellant suggested that the fee of $40.00 awarded to counsel for the appellee was inadequate and that it be increased here.  As no cross appeal was taken by the appellee from that award, and as no petition was filed below for counsel fees in this Court, the question of counsel fees for appellee's counsel[***24] is [*440] not before us here.  Danziger v. Danziger, 208 Md. 469, 476, 118 A. 2d 653, 656.

   We are also of opinion that the chancellor should retain jurisdiction for the purpose of awarding custody of the infants, if necessity for such award should arise.

   Decree reversed in part and affirmed in part, and cause remanded for the passage of a decree in conformity with this opinion.  Costs to be paid by the appellant. 

SAFEWAY STORES, INC. et al. v. BARRACK 
No. 180, October Term, 1955
 
Court of Appeals of Maryland
 
210 Md. 168; 122 A.2d 457; 1956 Md. LEXIS 449

 May  8, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  malice, probable cause, malicious prosecution, punitive damages, false imprisonment, butter, want of probable cause, pepper, inferred, swear, cart, assault, sufficient evidence, criminal prosecution, legal justification, instigator, counter, paying, girl, ratification, reviewable, self-service, instituted, shoplifters, predicated, acquitted, motive, nasty, compensatory damages, distinguishable

COUNSEL: Calvin H. Cobb, Jr., with whom were R. Tilghman Brice, III, and Arthur B. Hanson on the brief, for the appellants.

   Ridgely P. Melvin, Jr., with whom were McWilliams, Evans & Melvin on the brief, for the appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*171] [**458] This appeal is from a judgment of the Circuit Court for Anne Arundel County in an action in four counts for[***6] malicious prosecution and false imprisonment. The jury rendered a verdict of $2,500.00, which was reduced by remittitur to $1,250.00.  The principal questions raised are as to the legal sufficiency of the evidence and the correctness of the court's charge.

   The plaintiff was a waterman, sixty-three years of age, who lived alone at Edgewater on the South River, about six miles from Annapolis.  For ten years he had made a habit of shopping in Annapolis.  On the morning of September 3, 1954, he entered the Safeway store with two bundles of laundry and a large bag in which were [**459] purchases he had made elsewhere.  He placed these in a pushcart and proceeded to fill it with other articles he selected from the self-service counters. When he approached the check-out stand he left the cart there and went to another part of the store to get a carton in which to place his purchases.  When he returned the girl had checked his purchases and he paid her for them.  When he picked up one of the laundry bundles he testified that a pound of butter fell down on the floor.  This was one of the articles he had selected in the store.  One of the store employees, Mr. Smith, came up at this [***7]time and accused him of trying to steal the butter. Smith was wearing a badge.  The girl said she had not seen the butter in the cart and had not checked it out.  The witness offered to pay for it, but Smith told the girl not to take the money, he was "going to have him locked up".  Smith also produced a box of pepper and accused the witness of taking it.  The witness had not taken the pepper, he never used it.  He went out into the street.  Smith followed him, called him vile names, and ordered him to come inside.  They went to a back room and waited until a police officer arrived.  Smith charged him with stealing a pound of butter and a one ounce box of pepper, [*172] valued at some eighty-four cents.  The officer took him to the police station and put him in a cell, but permitted him to call an attorney who secured his release upon posting collateral.  At the trial before a magistrate on September 20 he was found not guilty.  Smith was the prosecuting witness.  Barrack was never served with a warrant.

   Smith's version of the incident was quite different.  He testified he was watching Barrack and saw him take the butter from one of the counters and put it in a paper bag that[***8] he had brought into the store.  He saw him take the pepper from another counter and put it in his pocket.  After Barrack had checked out he saw him put the butter and pepper in his carton.  Barrack was on his way out when Smith stopped him.  Smith had known Barrack before.  He denied having any ill will against him, "but he got so arrogant and mean and nasty at the check stand that I had to do something with him.  * * * he got so nasty, I got kind of mean myself." The manager of the store came into the back room while he and Barrack were there.  Barrack offered to "pay double the amount of the merchandise rather than have any trouble." Smith testified: "My job is to break up shoplifting." He had instructions from Mr. Anderson, the Retail Operations Manager in Washington, to "use my own discretion if people acted nasty, just do what I wanted to do with them.  * * * I hardly ever lock anybody up who is actually half-way decent and sorry they did it or they have some good excuse and they say they are not going to do it again.  If I locked everybody up I caught, I would probably be in Court all the time." He had a call put in for the police, but did not swear out a warrant, although he[***9] testified at the trial before the magistrate.  He remained in the employ of the appellant until April 7, 1955, and was not discharged then.  "I was in Mr. Anderson's office about a week before that * * * and he told me then he wasn't going to stop any means of helping to protect the company's property."

   Mrs. Nevin, the check-out girl, testified that Barrack had a paper bag in his hands the whole time and did not place it in the cart. She checked out all the articles that were in [*173] the cart, and did not find any butter or pepper there.  Barrack did not pay for these articles.  Mr. Cross, the store manager, testified that Mr. Smith was "on duty" in the store, and told him that Barrack had taken some articles without paying for them.  He was present in the back room with Smith and Barrack but did not call the police.  "Ordinarily Mr. Smith takes care of that on any case of this kind."

    It is elementary that in passing upon a motion for directed verdict or motion for judgment N. O. V. the testimony, and all proper inferences therefrom, must be considered in a light most favorable to the plaintiff's case.  There is no merit in the appellant's contention that "the evidence overwhelmingly[***10] preponderated against the verdict".  The weight and preponderance of the evidence is for the triers of fact and [**460] cannot be reviewed on appeal. Pessagno v. Keyes, 143 Md. 437, 440; E. Coast Lines v. M. & C. C. of Balto., 190 Md. 256. Nor is the question of whether the verdict was excessive open on appeal.  Patapsco Loan Co. v. Hobbs, 134 Md. 222, 227. The case of Heinze v. Murphy, 180 Md. 423, 429, is not to the contrary.  That was a non-jury case where the claim of excessive damages in an assault by a policeman was predicated upon the allowance of punitive as well as compensatory damages. This Court found that a case justifying punitive damages had not been established, but affirmed the judgment for compensatory damages.

   The necessary elements of a case for malicious prosecution of a criminal charge are well established.  There must be (a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) "malice", or a primary purpose in instituting the proceeding other than that of bringing an offender to justice.  [***11] Prosser, Torts (2d ed.), p. 646; Restatement, Torts, § 653; Pessagno v. Keyes, supra; Delk v. Killen, 201 Md. 381, 383. In the kindred action for false imprisonment, there must be a deprivation of the liberty of another without his consent and without legal justification. Although intent is necessary, "malice" is not, nor is probable [*174] cause a defense.  Fleisher v. Ensminger, 140 Md. 604, 620; Prosser, Torts (2d ed.), p. 52.  The chief distinction between the two actions lies in the existence of valid legal authority for the restraint imposed.  Lewin v. Uzuber, 65 Md. 341, 348.

   We think there was legally sufficient evidence to warrant the submission of the case to the jury in each case.  The jury could have found that the plaintiff was restrained from leaving the premises until the police arrived, without legal justification, and put in jail without the service of any warrant.  If they chose to believe Barrack's story they could have found that he had no intention of taking the butter without paying for it and that he did not take the pepper at all.  Smith was the moving cause of his subsequent imprisonment, even though Smith did not swear out any[***12] warrant.  One who instigates or aids and assists in a criminal prosecution may be liable regardless of whether he swears out a warrant.  Mertens v. Mueller, 119 Md. 525, 537; Mertens v. Mueller, 122 Md. 313, 321. See also Restatement, Torts, § 653, and Zenik v. O'Brien, 79 A. 2d 769 (Conn.).

   There was evidence that Smith was employed for the very purpose of apprehending and prosecuting shoplifters, and the jury could properly find that his actions were in the regular course of and within the scope of that employment.  Cf. McCrory Stores v. Satchell, 148 Md. 279, 286, and B., C. & A. Ry. Co. v. Ennalls, 108 Md. 75. In Nance v. Gall, 187 Md. 656, the employee who instituted the proceedings, by swearing out a warrant, had no express or implied authority to do so.  He was a railroad superintendent charged with the general duty of protecting the company's property.  He learned that a logging operator working along the railroad's right of way had cut a tree that in falling took down some of the telegraph wires.  Some time after these had been repaired, and there was no longer any need to protect the company's property, he procured the warrant.  It was held that[***13] there was no evidence of express authority or ratification by the company, and the action was beyond the scope of his general authority.  We think the case is distinguishable. Central [*175] Railway Co. v. Brewer, 78 Md. 394, 406, is distinguishable on the same ground. In the instant case Smith was employed to apprehend and prosecute shoplifters and given a wide discretion in this very field.

   We think the testimony of the plaintiff, if believed, would support a finding [**461] that the plaintiff's prosecution was without probable cause. If the butter were in the cart when the other articles were checked out, there was no basis on which a reasonable man could conclude that Barrack intended to secrete or steal it.  If Barrack never took the pepper from the self-service counter, the inference might be drawn that Smith tried to palm it off on him.

   While the court must determine as a matter of law whether probable cause is established upon a given state of facts, where the facts are disputed the question may properly be submitted to the jury under adequate instructions. Kennedy v. Crouch, 191 Md. 580, 590. In Nance v. Gall, supra (p. 669), and in Straus v. Young,[***14] 36 Md. 246, 255, it was said that acquittal before a magistrate, which is a necessary element of the action, would permit an inference of a want of probable cause, although it has been pointed out that the circumstances on which the instigator acted would not necessarily be germane to the issue in the criminal prosecution and the acquittal may be based on a mere lack of proof beyond a reasonable doubt.  Restatement, Torts, § 667, comment (c).  We have held that malice may be inferred from a lack of probable cause, although want of probable cause cannot be inferred from any degree of malice. Kennedy v. Crouch, supra (p. 587); Medcalfe v. Brooklyn Life Ins. Co., 45 Md. 198, 204; Prosser, Torts (2d ed.), p. 660.  Probable cause is a good defense, although the instigator may have been actuated by malice and the accused was acquitted. Kennedy v. Crouch, supra; Stansbury v. Luttrell, 152 Md. 553, 556. The presumption of malice resulting from the want of probable cause is only prima facie and may be rebutted by the circumstances under which the defendant acted.  Stansbury v. Fogle, 37 Md. 369, 380.

   The appellant strongly attacks the award of punitive damages[***15] [*176]both as against Smith and his employer.  Although the allowance of punitive damages is somewhat anomalous and has been rejected in a few states, it has been generally recognized.  Prosser, Torts (2d ed.), p. 9.  It has long been recognized in Maryland.  In Bernheimer v. Becker, 102 Md. 250, a case of assault and false imprisonment, it was said that to justify an award of punitive damages there must be circumstances tending to show that the wrong was inflicted maliciously or wantonly or with circumstances of contumely and indignity, citing Sloan v. Edwards, 61 Md. 89, 100. In Heinze v. Murphy, supra, a case of assault and false imprisonment against a policeman, it was said (p. 434) that "where damages beyond compensation, to punish the party guilty of a wrongful act, are asked, the evidence must show wanton or malicious motive, and it must be actual and not constructive or implied." On the other hand, in McNamara v. Pabst, 137 Md. 468, 473, a case of malicious prosecution, it was held that a prayer which did not require a finding of malice as a prerequisite to punitive damages was not defective, since such a finding would be implicit in a verdict for [***16]the plaintiff, which would necessarily include a finding of malice.

   The reasoning that would support an award of punitive damages against Smith would not necessarily apply to his employer.  Some courts have held that a principal is not liable for punitive damages unless the principal authorizes, ratifies or participates in the act complained of.  Lake Shore &c. Railway Co. v. Prentice, 147 U.S. 101; Prosser, Torts (2d ed.), p. 21; Restatement, Torts, § 909.  Cf. Wardman-Justice Motors v. Petrie, 39 F. 2d 512 (D. C.), and Safeway Stores v. Gibson, 118 A. 2d 386, 388 (Mun. C. A., D. C.), in which cases the courts found evidence of express authorization or ratification from the terms of employment and the retention of the agent after the incident was reported.  But the Maryland cases take a less strict view.  In Boyer & Co. v. Coxen, 92 Md. 366, 371, punitive damages were allowed against an employer in an assault case, where there was no evidence of authorization, participation or ratification. [**462]There was, of course, evidence that the servant was acting in furtherance of [*177] the master's business, although his action in beating the plaintiff[***17] with a wrench was "wanton, high-handed and outrageous". See also Dennis v. Baltimore Transit Co., 189 Md. 610, 616, and Balt. & Yorktown Turn. v. Boone, 45 Md. 344.

   The court's charge to the jury was on the whole accurate and fair.  After correctly stating the elements of the two causes of action and the rule as to burden of proof, the court charged that if the jury should find for the plaintiff as to the false imprisonment, in order to award punitive damages they would have to find that the acts were done wantonly, wilfully and maliciously. As to the malicious prosecution counts, the jury was instructed that they must find a want of probable cause, plus malice, but that malice might be inferred from a want of probable cause. After defining probable cause, the court instructed the jury that this does not mean "'sufficient cause,' as there are acquittals of people charged with crime when there may have been probable cause for prosecution, but not sufficient cause for conviction." The court also charged that if they found for the plaintiff on the malicious prosecution counts, they should not award any separate damages for the false imprisonment, but bring in one verdict, [***18] "if you find for the plaintiff in the entire situation after you have weighed all the evidence".

   The appellant objects to the use of the phrase "from public motives", in the definition of probable cause. It is sufficient to observe that this language was specifically approved in Mertens v. Mueller, supra (119 Md. 525, 535).  The objection to the definition of malice is likewise without merit, under the cases cited.  The objection that the court allowed an award of punitive damages against the employer for malicious prosecution is also without merit.  This instruction was predicated upon a finding that the employee was acting within the scope of his employment and without probable cause. The argument that punitive damages could not be found without a showing of "actual or express" malice, is answered by McNamara v. Pabst, supra, so far as the malicious prosecution is concerned, and the court charged that actual malice was necessary as to the false imprisonment. Moreover, there [*178] was no objection to the instruction as to a single verdict, which the jury followed.

   Judgment affirmed, with costs. 

COLEMAN v. STATE 
No. 110, October Term, 1955
 
Court of Appeals of Maryland
 
209 Md. 379; 121 A.2d 254; 1956 Md. LEXIS 311

 March  15, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  truck, accomplice, convicted, clearly erroneous, statutory burglary, Criminal Law, misdemeanor, jumped, bomb, new trial, television, ninety, drove, boxes, commission of a crime, criminal intent, abettor, aider, General Rules of Practice, newly discovered evidence, judgment of conviction, breaking and entering, accessory, unlawfully, knowingly, non-jury, sentence, street, driver, crash

COUNSEL: Fred E. Weisgal, with whom was Stanley Sollins on the brief, for the appellant.

   Frank T. Gray, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney General, C. Osborne Duvall, State's Attorney for Anne Arundel County, and Clarence L. Johnson, Assistant State's Attorney, on the brief, for the appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*381] [**255] This is an appeal by William A. Coleman, appellant, from a judgment and sentence, of the trial court sitting without a jury, for breaking and entering the store of Consumers Buying Association, Inc., (Consumers), with intent feloniously to steal certain property therein, in Glen Burnie, Anne Arundel County.

   The facts of the case are substantially as follows.  Robert W. Griffith, [***5]a police officer, testified that about [*382] 1:30 A. M. on April 7, 1955, he observed a truck proceeding the wrong way on a one way street in Glen Burnie.  He waved to the truck to stop and the driver of the truck tried unsuccessfully to pin him between his car and the truck. The truck then proceeded at a fast rate of speed on that "dead end" street. When the "dead end" was reached four persons jumped out of the truck and ran through the woods. The truck contained five television sets, three portable record players, two portable radios, one table model radio and a lady's brown suitcase.  He called a number of police cars to assist him in finding the four people who jumped out of the truck. About a half hour later Loretta Cox, and about three-quarters of an hour later Robert Dellavox, were both picked up in the vicinity.  Officer Griffith could identify only one occupant of the truck at the time it passed him, that being Harry Myers.

   Mr. Morton Forman, an employee of Consumers, testified that the store was closed about 6 P. M. on April 6, 1955.  He returned to the store the following morning about 8:45 A. M. and noticed that articles were missing and there were marks at the[***6] edge of the rear door.  He later went to the Ferndale Police Station where he identified the articles which had been found in the truck by Officer Griffith as the property of Consumers.

   Loretta Cox, sixteen years of age at the time the crime was committed and seventeen at the time of the trial below on August 26, 1955, testified that she knew Harry Myers and William A. Coleman, the appellant.  At about 11 P. M. on April 6, 1955, she was on Linden Avenue in Baltimore.  Myers, Coleman and Dellavox drove up in a truck and asked her to go for a ride.  She had known these boys previously.  They drove around for a short time and they then drove to Glen Burnie.  They parked the truck back of a store and the boys went in and brought out some coffee.  They talked there together about twenty minutes. Robert Dellavox remained in the truck with her.  Myers and Coleman got out and brought back boxes which they put in the back of the truck. She found out [*383]later that these contained television sets.  She did not do anything. She could not carry [**256] the boxes. When asked whether she knew what they were doing when they left the truck, she replied: "I didn't know for sure, but [***7]after I heard the crash and saw them come back * * * They broke in. * * * Well, I went back later, it was a window or a door." When asked "Had there been any discussion between you and either of these boys, or any of the boys among themselves in your presence before they left you in the truck?", she replied: "They were talking about televisions, but I didn't hear anything special." After the boxes were placed in the truck they drove off.  As they were driving the wrong way on the street the officer told them to stop.  Myers, who was driving the truck, put on speed.  She was on the front seat with Coleman and Myers and Dellavox was in the rear.  "The truck must have wrecked or something. We jumped out and started running." She was picked up by the police about forty-five minutes later.  On cross examination, when asked what she was tried for in Anne Arundel County, she stated: "breaking and entering." She said she did not plead guilty.  She admitted that she did not like Coleman very much. "He was rotten to me after this mess." She later said that she was not formally charged with any crime but was tried in the Juvenile Court in Anne Arundel County for being a delinquent child.  She[***8] had never been tried in any court other than the Juvenile Court in Anne Arundel County.  Officer Griffith, when recalled, testified that she was never charged with any crime but was tried in the Juvenile Court.  There is nothing in the record here to show that she was ever tried for breaking and entry or what disposition was made of the case in the Juvenile Court.

   The appellant contends that there was not sufficient evidence to convict him because he was convicted solely as the result of the uncorroborated testimony of Loretta Cox, an accomplice to the crime charged against him.  The State admits in this case that the only evidence against the appellant was that of Loretta Cox.

   [*384] Of course, unless there is some testimony to corroborate an accomplice, the law does not permit a conviction to stand.  Lanasa v. State, 109 Md. 602, 613, 71 A. 1058; Luery v. State, 116 Md. 284, 81 A. 681; Wolf v. State, 143 Md. 489, 504, 122 A. 641; Folb v. State, 169 Md. 209, 211, 181 A. 225; Myerson v. State, 181 Md. 105, 112, 28 A. 2d 833; Juratovac v. State, 193 Md. 561, 564, 69 A. 2d 247; Watson v. State, 208 Md. 210, 217, 117 A. 2d 549, 552. The primary question[***9] before the trial judge was whether Loretta Cox was an accomplice of the appellant.

   The crime for which the appellant was convicted, Code, 1951, Article 27, Section 38, statutory burglary, is a misdemeanor. Bowser v. State, 136 Md. 342, 110 A. 854; Hickman v. Brady, 188 Md. 103, 52 A. 2d 72; State ex rel. Zukowski v. Warden, 193 Md. 721, 68 A. 2d 675; Debinski v. State, 194 Md. 355, 71 A. 2d 460. The offense for which the appellant here was convicted being a misdemeanor, all accessories were chargeable as principals.  Roddy v. Finnegan, 43 Md. 490, 503, 504; Seward v. State, 208 Md. 341, 118 A. 2d 505.

   In the case of Anello v. State, 201 Md. 164, 93 A. 2d 71, the appellant was convicted of larceny of use of property which was a misdemeanor. It was there said: "It is clear that no one, whether principal perpetrator or aider or abettor, can violate this statute unless he possesses criminal intent. The legal definition of the word 'aider' is not different from its meaning in common parlance.  It means one who assists, supports or supplements the efforts of another.  The word 'abettor' means in law one who instigates, advises or encourages the commission[***10] of a crime. Thus the word 'abet' may import that one is present at the commission of a crime without giving active assistance.  Creasy v. Commonwealth, 166 Va. 721, 186 S. E. 63; State v. Epps, 213 N. C. 709, 197 S. E. 580; State ex rel. Martin v. Tally, 102 Ala. 25, 15 So. 722, 737; State v. Western Union Telegraph Co., 13 N. J. Super. 172, 80 A. 2d 342, 355. * * * To be an aider or abettor it is not essential that there be a prearranged concert of action, although, in the absence of such action, it is essential [*385] that one should in some way advocate [**257] or encourage the commission of the crime.  McKinney v. Commonwealth, 284 Ky. 16, 143 S. W. 2d 745." In State ex rel. Wisconsin Development Authority v. Dammann, 228 Wis. 147, 277 N. W. 278, 280 N. W. 698, it was held by the Supreme Court of Wisconsin that the word "encourage" had no technical meaning.  The cases of United States v. Strong, (D. C.), 263 F. 789, and United States v. Ault, (D. C.), 263 F. 800, 811, adopted Webster's definition of "encourage" to mean "giving courage to; inspiring with courage, spirit, or hope." Seward v. State, supra, and cases there cited.

   It is[***11] stated in 2 Wharton, Criminal Evidence, 229, Sec. 448, et seq. (12th Ed.): "An accomplice is a person who knowingly, voluntarily, and with common intent with the principal offender unites with him in the commission of the crime.  The term 'accomplice' does not include a person who has guilty knowledge, or is morally delinquent, or who was even an admitted participant in a related but distinct offense.  To constitute one an accomplice, he must perform some act or take some part in the commission of the crime or owe some duty to the person in danger that makes it incumbent on him to prevent its commission.  An accomplice is 'one culpably implicated in, or who unlawfully co-operates, aids, abets, or insists in, the commission of the crime charged.'

   "The generally accepted test as to whether a witness is an accomplice is whether he himself could have been convicted for the offense, either as principal or accessory."

   In Anello v. State, supra, the accused was convicted of unlawfully carrying away a Cadillac automobile out of the custody and use of the owner.  The police pursued the automobile and three men jumped out and ran.  Anello was one of the men caught.  He claimed[***12] that he did not know or suspect that the car was not in the legal custody of the driver until the driver jumped out of the car.  In that case the appellant had had considerable experience in the unauthorized use of automobiles.  He had been convicted of unlawfully taking nine cars.  He had also [*386] been convicted on two charges of burglary and for disorderly conduct.  The statements he made to the police and to the court were inconsistent and incredible.  This Court held that it would be straining one's credulity to believe that this man, with his criminal record, could get into an expensive sedan after midnight, with a man he claimed he knew only by the name of Sam, and ride in it until two o'clock in the morning without having any criminal intent. Also the facts that the car was "hotwired" and the man ran supported the inference that the appellant knew the car had been unlawfully taken.  We there held that the trial judge was not clearly erroneous in convicting the appellant.

   In Seward v. State, supra, the accused, who was convicted of malicious destruction of property, knew all about the bombs which were used, who was making them and who was setting them off.  He also[***13] knew that one of the boys in the car had bombs with him.  The bombing was discussed and contemplated.  At one time he got out of the car when the intention was to place a bomb in a trash can.  Instead of leaving the other boys, he returned to the car which was placed in a position for easy exit while the boy with the bomb in full view took two or three steps and threw it in a water tower.  Appellant remained in the car in order to hear the explosion.  We there held that we could not say that the trial judge was clearly wrong in finding that the appellant in some way encouraged the commission of the crime.

   In Watson v. State, supra, Watson was convicted of the murder of a baby.  It was claimed that Polly Conway, one of the witnesses, was an accomplice and that the accused could not be convicted upon her uncorroborated testimony.  In that case there was no evidence that Polly Conway knew that the appellant intended to kill the child until he got the tub of water and put the child in it.  There was no evidence that she aided or abetted the crime or encouraged it.  She was merely a neighbor who had come to assist a woman while she was giving birth to a child without the aid of a doctor. [***14] [**258] She admitted that she made [*387] no objection when the appellant placed the baby in the tub of water and that she did not notify the police.  It was said in that case in holding that she was not an accomplice: "To be an accomplice a person must participate in the commission of a crime knowingly, voluntarily, and with common criminal intent with the principal offender, or must in some way advocate or encourage the commission of the crime.  Anello v. State, 201 Md. 164, 168, 93 A. 2d 71; Butt v. State, 81 Ark. 173, 98 S. W. 723, 727; Miller v. Commonwealth, 240 Ky. 355, 42 S. W. 2d 523; Hicks v. State, 126 Tenn. 359, 149 S. W. 1055; State v. Cartright, 188 Iowa 579, 174 N. W. 586."
 
   In the instant case Loretta Cox said she knew nothing about the intent of the boys to take the television sets and did not know that the store had been broken into until after she heard the crash and went back later to the premises.  She was not charged with the crime but with being a juvenile delinquent under Code, 1951, Article 26, Section 51.  Any inference that she might have been the lookout could be negatived by the fact that Robert Dellavox stayed in the truck [***15]with her while the breaking took place.

   This case was tried by the trial judge without a jury.  This Court should not reverse a judgment of conviction in a non-jury case unless it finds that the trial court's conclusion was clearly erroneous. General Rules of Practice and Procedure, Part 4, Rule 7(c); Edwards v. State, 198 Md. 132, 81 A. 2d 631, 83 A. 2d 578, 26 A. L. R. 2d 874; Kaufman v. State, 199 Md. 35, 85 A. 2d 446; Anello v. State, supra; Willis v. State, 205 Md. 118, 106 A. 2d 85. If the record shows any evidence or proper inferences from the evidence upon which the trial court could find the defendant guilty, this Court cannot find that the decision was clearly erroneous. Floyd v. State, 205 Md. 573, 582, 109 A. 2d 729; Seward v. State, supra. We cannot say in this case that the trial judge was clearly wrong in finding that Loretta Cox was not an accomplice to the crime for which the appellant was convicted.

   [*388] This case was argued in this Court on February 8, 1956.  On February 16, 1956, the attorney for the appellant forwarded to us an affidavit purportedly made by Loretta Cox that same day, which might indicate that she had knowledge[***16] of the intent to commit the crime and that she was guilty of perjury in her testimony before the trial judge in the instant case.  He asks that this Court pass an order staying its decision and remanding the case to the trial court in order that he could file a motion for a new trial on the basis of newly discovered evidence.

   In Madison v. State, 200 Md. 1, 87 A. 2d 593, Madison was found guilty of murder in the first degree by a jury on June 7, 1951, and on October 24th he was sentenced to be hanged.  On April 4, 1952, this Court affirmed the judgment. After a date for his execution had been set, an affidavit was secured on February 15, 1954, from one of the material witnesses which might have indicated that she committed perjury at the trial.  On February 16, 1954, the appellant filed a motion in the trial court to strike out the judgment and sentence and for a new trial. On March 9, 1954, the Court with one judge dissenting, denied the motion to strike out the judgment and an appeal was again taken to this Court.  We there held in Madison v. State, 205 Md. 425, 109 A. 2d 96, that a common law court had no power to strike out or modify a judgment after the expiration of[***17] the term in which it was rendered except on the grounds of fraud, surprise or mistake.  The obvious purpose of this rule was to secure stability for the judgments of the courts.  We also pointed out that, although a writ of coram nobis was not filed, it would not lie to determine whether any witnesses testified falsely at the trial or to present newly discovered evidence. It was there said: "The purpose of the writ is to bring before the court facts which were not brought into issue at the trial of the case, and which were material to the validity and regularity of the proceedings, and which, if known by the court, would have prevented the judgment.  It is manifest that if the writ were available to allow the court in which the judgment was entered to decide subsequently whether [*389] the [**259] witnesses who testified at the trial had testified falsely, and, if it should decide that they had, to strike out the judgment, then the judgment might be the beginning, rather than the end, of litigation.  Keane v. State, 164 Md. 685, 689, 166 A. 410; Bernard v. State, 193 Md. 1, 65 A. 2d 297." It was also said in that case: "When a convicted defendant moves to set[***18] aside his conviction on the ground that it was procured by the use of perjured testimony, the burden is on him to show not only that material perjured testimony was used to convict him, but also that it was knowingly and intentionally used by the prosecuting authorities.  Reeder v. Warden of Maryland Penitentiary, 196 Md. 683, 77 A. 2d 1; Story v. Burford, 10 Cir., 178 F. 2d 911, certiorari denied, 338 U.S. 951, 70 S. Ct. 482, 94 L. Ed. 587; Hinley v. Burford, 10 Cir., 183 F. 2d 581; Wild v. State of Oklahoma, 10 Cir., 187 F. 2d 409; United States v. Spadafora, 7 Cir., 200 F. 2d 140." We held in the Madison case, supra, that we had no power to review the motion.  We find no authority which would enable us to grant the petition of the appellant, were we disposed to do so.

   Without finding that, if the matters set forth in Loretta Cox's affidavit are true, she was an accomplice in this case, we might point out that Rule 10(c) of the Criminal Rules of Practice and Procedure provides: "In all other criminal cases the court may reduce a sentence within ninety (90) days after the sentence is imposed, or within ninety (90) days after receipt by the court[***19] of a mandate issued upon affirmance of the judgment or dismissal of appeal." The judgment will be affirmed.

   Judgment affirmed, with costs. 

WOELFEL v. MAYOR AND ALDERMEN OF THE CITY OF ANNAPOLIS 
No. 157, October Term, 1955
 
Court of Appeals of Maryland
 
209 Md. 314; 121 A.2d 235; 1956 Md. LEXIS 304

 February  10, 1956, Decided  
 March  12, 1956, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

CORE TERMS:  municipal, charter, voter, municipality, Municipal Home Rule Amendment, repeal, rate of taxation, enact, borrowing, amend, referendum, maximum amount, excessive, sentence, decree, laws relating, maximum limit, regulating, authorize, effective, ordinance, voting, challenged ordinance, special case, per curiam, inclusive, bonded indebtedness, municipal election, proposed amendment, ordinance adopted

COUNSEL: Thomas J. Curley, for appellant.

   H. Warren Buckler, Jr., and John B. Wright, with whom were Niles, Barton, Yost & Dankmeyer, on the brief, for appellee.

   Brief on behalf of Mayor and Council of Easton as amicus curiae filed by L. Clark Ewing, Attorney for Mayor and Council of Easton.

   Brief on behalf of the Commissioners of Thurmont as amicus curiae filed by Thomas S. Glass and Weinberg & Glass, Solicitors for the Commissioners of Thurmont.

JUDGES: Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*316] [**236] This case may be described as a sequel to Hitchins v. City of Cumberland, 208 Md. 134, 117 A. 2d 854. It originated as a special case stated filed pursuant to Code (1951), Article 16, Sections 238-239, in the Circuit Court for Anne Arundel County, in which George B. Woelfel is the complainant and the Mayor and Aldermen of[***4] the City of Annapolis (referred to below as the "City of Annapolis", or, more briefly, as the "City" or "Annapolis") is the respondent.  The object of the suit was to obtain a determination: (1) of the validity of certain amendments to the Charter of Annapolis which the City undertook to adopt pursuant to the Municipal Home Rule Amendment, Article XI-E of the Constitution of Maryland, and an implementing statute enacted pursuant thereto, Chapter 423 of the Acts of 1955, codified as Sections 9-43, inclusive, of Article 23 A of the Code (1955 Supp.), and (2) of the validity of an ordinance adopted on the premise that these amendments were valid.  The particular Sections involved are Nos. 11-18, which deal with charter amendments.  All of the amendments challenged in this suit were initiated by the legislative body of the City in accordance with Section 13 of Article 23 A.  No referendum was held on any of these amendments, and each of them became effective after due publication of notice in accordance with Section 13.  A referendum vote could have [**237] been had under Section 13 on each amendment, on demand of twenty per cent or more of the qualified voters of the City, but no[***5] such demand was made.  The Circuit Court entered a decree declaring each of the amendments and the challenged ordinance to be valid.  The complainant appealed from that decree. Briefs were filed on behalf of the Mayor and Council of Easton and the Commissioners of Thurmont, as amici curiae.  Each of them is a municipal corporation [*317] subject to the provisions of the Municipal Home Rule Amendment and each of them had a problem similar to that of the City of Annapolis.  At the request of counsel for the complainant and for the City of Annapolis, we advanced the case for hearing and after full argument we affirmed the decree of the Circuit Court by a per curiam order.

   All of the resolutions under attack were adopted by the City on May 17, 1955, which was approximately a month after the effective date of Chapter 423 of the Acts of 1955, which was enacted as an emergency measure.  All but one were, in terms, charter amendments.  The other resolution was also in fact a charter amendment, since it amended a special Act (Chapter 492 of the Acts of 1951) which had authorized the City to borrow up to $300,000 for certain parking projects, to issue bonds therefor and to levy[***6] ad valorem taxes to pay the principal and interest, and which had exempted bonds issued thereunder from referendum requirements and tax limitations contained in the Charter of Annapolis.

   The Hitchins Case established the validity and effectiveness of Sections 11-18, inclusive, of Article 23 A as the means of amending the charters of municipalities subject to Article XI-E of the Constitution and within the definition of a "municipal corporation" contained in Section 9 of Article 23 A, in respect of matters falling within the scope of Section 3 of Article XI-E. That Section provides that:

   "Any such municipal corporation, now existing or hereafter created, shall have the power and authority, (a) to amend or repeal an existing charter or local laws relating to the incorporation, organization, government, or affairs of said municipal corporation heretofore enacted by the General Assembly of Maryland, and (b) to adopt a new charter, and to amend or repeal any charter adopted under the provisions of this article."

   [*318] The complainant contended that charter amendments of the types here under attack could not be made under Section 3 of Article XI-E of the Constitution[***7] and Section 13 of Article 23 A of the Code, but could be made only under Section 5 of Article XI-E by Act of the General Assembly approved on a referendum by a majority of the voters of the municipal corporation voting on the question.

    The particular charter amendments here involved deal, in general, with: (1) increasing the borrowing limit of the City on short term loans; (2) restricting borrowing power previously granted by a special act to the extent that such power had not already been exercised; (3) increasing the limit on the rate of taxation; (4) increasing the authorized bonded indebtedness; and (5) eliminating mandatory requirements for referenda on bond issues and limitation on the entire amount of public debt.  All of these are brought into the special case stated and a copy of each of them is filed as an exhibit; but any attack on the first is no more than a by-product of the attack on the last three, since a decision on their validity, which was specifically asked, would unavoidably have a bearing on the validity of the first.  There is no serious attack, if any at all, on the second amendment.  It is closely related in subject matter to the ordinance, since the amendment[***8] surrendered an unused power to borrow for parking projects and the ordinance authorizes a larger amount of borrowing for similar purposes.

   The provisions of Section 5 of Article XI-E which are pertinent to the complainant's contentions are these:

   "Notwithstanding any other provisions in this article, the General Assembly may enact, amend, or repeal [**238] local laws placing a maximum limit on the rate at which property taxes may be imposed by any such municipal corporation and regulating the maximum amount of debt which may be incurred by any municipal corporation.  However, no such local law shall become [*319] effective in regard to a municipal corporation until and unless it shall have been approved at a regular or special municipal election by a majority of the voters of that municipal corporation voting on the question."

   The difference between this case and the Hitchins Case is simply this: here Section 5 is directly involved; there it was not.

   The amendments here involved are valid under Section 3 and the Hitchins Case, unless Section 5 requires an opposite result.  We hold that it does not.

   The appellant's fundamental contention is that under Section[***9] 5 of Article XI-E, exclusive power to enact, amend or repeal limitations contained in a municipal charter upon the rate of taxation of property or upon the maximum amount of debt is reserved to the General Assembly and to a majority of the voters of the municipality. We do not think that this construction of Section 5 is supportable.

   We think that the language of Section 3 is sufficiently broad to encompass the types of amendments referred to in the first two sentences of Section 5, and that the reservation of power contained in Section 5 is merely permissive.  It says that the General Assembly may enact, not that only the General Assembly may enact. The purpose of the provision seems to be merely to enable the General Assembly and a majority of the voters of a particular municipality who vote on the question to apply a brake to excessive taxation or excessive borrowing, if need therefor should arise.  This, we think, is the meaning of the language of the Section, and it is in harmony with the manifest general purpose of the Municipal Home Rule Amendment that municipalities shall govern themselves in local matters.  In short, we see no reason for reading into the amendment [***10]a word which simply is not there, such as "only" or "exclusively".

    The language of the concluding sentence of Section 5 confirms our view.  It states that "All charter provisions [*320] enacted under the authority of Section 3 of this Article shall be subject to any local laws enacted by the General Assembly and approved by the municipal voters under the provisions of this section." If Section 3 did not authorize the adoption, repeal or amendment of charter provisions dealing with limitations on the rate of taxation of property or the amount of municipal debt, or if the first two sentences of Section 5 barred action under Section 3, this concluding sentence of Section 5 would be utterly unnecessary.

   If we had any doubt as to the correct construction of Section 5 and needed extrinsic aid to ascertain its meaning, an examination of the history of the Municipal Home Rule Amendment would furnish it and would confirm our view.  As we said in the Hitchins Case, that amendment was proposed by the Commission on the Administrative Organization of the State, usually known as the Sobeloff Commission.  The Commission's Second Report made in June, 1952, advocated such an amendment and[***11] incorporated a draft of one.  The actual amendment as proposed by the General Assembly and as approved by the people does not differ in any respect here material from the form of amendment proposed by the Sobeloff Commission.  At pages 29-30 of the Report referred to, in discussing the charter amending power to be conferred under Section 3 and the limitation thereon provided by Section 5, the Commission said:

   "Specifically, it is proposed that the Constitution be amended to authorize all incorporated municipalities to change their charters or adopt new ones through local action.  The General Assembly would be prohibited from enacting local laws relating to municipalities * * *.  * * * As exceptions to the prohibitions in the [**239] proposed amendment, the General Assembly, if it chose, could continue to enact local laws setting maximum tax and debt limits for municipalities, subject to local voter approval.  * * *

   [*321] "The heart of the proposed amendment is contained in section 3." (Italics ours.)

   The amendments under which the challenged ordinance were adopted were valid; and it is conceded that if they were valid, the ordinance, too, is valid.

   For the reasons[***12] above stated we affirmed the decree of the Circuit Court by a per curiam order as above stated. 

BOWIE v. BOWIE et al. 
No. 80, October Term, 1955
 
Court of Appeals of Maryland
 
208 Md. 623; 119 A.2d 436; 1956 Md. LEXIS 266

 January  11, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  deed, grantor, remainder, covenant, conveyed, life estate, demurrer, reserved, power of disposition, present intention, tracts of land, enjoyment, commence, convey, declaratory decree, order sustaining, circumstances surrounding, condemnation proceeding, testamentary intent, written instrument, remainder interest, introduce evidence, granting clause, habendum clause, plain meaning, final order, life tenant, pass title, conveyance, admissible

COUNSEL: Eugene M. Childs and LeRoy Bald, with whom were Morgan L. Amaimo and Childs & Bald on the brief, for the appellant.

   Charles P. Coady, Jr., and Rignal W. Baldwin, with whom were Semmes, Bowen & Semmes and Coady & Farley on the brief, for the appellees.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*625] [**436] This appeal is from an order sustaining a demurrer to[***4] a bill of complaint filed on [**437] December 29, 1954 praying a declaratory decree for the construction of a deed. Such an order is appealable in equity, despite the failure to pass a final order dismissing the bill.  Karger v. Stead, 192 Md. 230, 232; Young v. Cockman, 182 Md. 246, 249.

   John Bowie, father of the parties to this suit and a widower, executed a deed to the appellees of two tracts of land located in Anne Arundel County on October 3, 1944.  The instrument was duly recorded on November 2, 1944.  He died intestate on April 3, 1953 leaving as his only heirs at law four children, all sui juris, who are parties to this suit, although Henry Bowie has taken no active part therein.  There has been no administration upon the estate of John Bowie.

   The instrument begins with the words "This Deed".  The granting clause recites: "Witnesseth, that for and in consideration of the sum of one dollar ($1.00) and other good and valuable considerations thereunto moving from the parties of the second part unto the parties [sic] of the first part, the receipt of which is hereby acknowledged, the said John Bowie, does bargain and sell and by these presents does grant and[***5] convey, unto John Bowie, Jr. and Frances Bowie Baldwin, the parties of the second part, all of the rest and remainder, after the death of the said John Bowie, in and to all of those two tracts of land * * *." Two specific tracts are then described.

   The habendum clause provides: "To have and to hold all the rest and remainder after the death of the grantor herein, in the above described land and premises unto and to the proper use and benefit of the said John Bowie, Jr. and Frances Bowie Baldwin, as tenants in common, their heirs and assigns forever in fee simple." The instrument also contains these covenants: "And the said party of the first part does hereby covenant to warrant specially the remainder in said property herein conveyed, and that he will execute such other and further assurances as may be requisite."

   [*626] The appellant contends that the instrument cannot be given effect as a deed, because it shows merely a testamentary intent to pass title in the event of the grantor's death.  It is alleged that the instrument "has no legal force or effect other than to constitute a cloud upon the petitioner's title to a one-fourth undivided interest in said property." We think[***6] the contention is without merit.  Code (1951), Article 21, Section 13, cited by the appellant, merely provides that deeds, if duly executed, acknowledged and recorded, shall be effective when they describe, in addition to the names of the parties and a description of the property sufficient to identify it with reasonable certainty, "the interest or estate intended thereby to be conveyed." Code (1951), Article 21, Section 17, states that the word "grant" shall be construed to pass the whole interest or estate, "unless there be limitations or reservations showing by implication or otherwise, a different intent." In the instant case there is a manifest design on the part of the grantor to convey an interest in the described property, which would be utterly frustrated by a construction that would nullify the conveyance. Cf. Hammond v. Hammond, 159 Md. 563, 565, and note 31 A. L. R. 2d 532, 552.

   The interest is aptly described as a "remainder", which is a word of art, limited by the words "after the death of the grantor".  We think a life estate is reserved by implication.  Words in a devise that call for a gift over upon or after the death of the first taker have often been construed[***7] to create a life estate by implication.  See Restatement, Property, § 116; Miller, Construction of Wills, § 115; and Tiffany, Real Property (3d ed.), § 52.  We see no reason why the same construction should not be given to a conveyance by deed. Cf. Merck v. Merck, 65 S. E. 347 (S. C.).  The question is simply one of intention, for it is clear that [**438] an estate may be created to commence in enjoyment upon the grantor's death.  Beranek v. Caccimaici, 157 Md. 144, 146. See also Tiffany, Real Property (3d ed.), § 359.  This is true even where a power of disposition is reserved to the life tenant. Takacs v. Doerfler, 187 Md. 62, 66. [*627] In the instant case we not only have the word "remainder", but the term is explained in the covenant clause as "the remainder in said property herein conveyed", which clearly imports a present intention to convey. Another applicable rule of construction is that a deed should be construed most strongly against the grantor. Maryland State Fair v. Schmidt, 147 Md. 613, 621; Hewitt's Appeal, 55 Md. 509, 513.

   Since we think the language of the deed is clear, it is unnecessary to discuss the appellees' [***8] contention that the deed should be given effect in any event as a covenant to stand seized, citing among other cases, Murray v. Kerney, 115 Md. 514, 518.

   The appellant contends that the Chancellor should not have decided the case on demurrer, but should have required an answer and have permitted the appellant to introduce evidence to aid in the construction of the deed, or have permitted amendment of the bill.  We find no merit in these contentions.  It is well settled that parol evidence is not admissible to vary the plain meaning of a written instrument, as the cases heretofore cited demonstrate.  See also Weiprecht v. Gill, 191 Md. 478, 484. If there were other circumstances surrounding the execution of the deed that might be relevant, it was incumbent upon the complainant to allege them.  There was no proffer of this, nor does it appear that the Chancellor was ever asked for leave to amend.

   The only extraneous circumstance mentioned in the bill, is an allegation that John Bowie, in his lifetime and after the recording of the deed here in question, disposed of some 30 acres to the United States Government.  But it appears that this was as a result of a condemnation proceeding[***9] to which the appellees were made parties along with John Bowie, so that the disposition is without significance.

   Order affirmed, with costs. 

HOLLAND et ux. v. BILLINGSLEY et ux. 
No. 82, October Term, 1955
 
Court of Appeals of Maryland
 
208 Md. 635; 119 A.2d 380; 1956 Md. LEXIS 268

 January  11, 1956, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Macgill, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  advertisement, tax sale, parcel, tax roll, decree of foreclosure, acre, decree, street number, situated, Maryland Tax Sale Act, right of redemption, parcels of land, redemption, foreclose, rescind, laches, omission, locate, void, foreclosing, unimproved, rescinded, purchasers, incorrectly, foreclosure proceedings, general knowledge, acres of land, null and void, decimal point, general rule

COUNSEL: Linwood L. Clark, for appellants.

   Ridgely P. Melvin, Jr., with whom were McWilliams, Evans & Melvin on the brief, for appellees.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*637] [**380] This is a proceeding in a tax foreclosure suit to set aside the tax sale of two parcels of land in Anne Arundel County, Maryland, and to rescind the decree of foreclosure.

   The land was owned by Rev. James H. Billingsley, a resident of Virginia, at the time of his death in October, 1947.  By his will he left his entire estate to his widow, Mrs. Margaret M. Billingsley, and their only child, James H. Billingsley, [***5] Jr. Rev. Billingsley owned at the time of his death three unimproved parcels of land aggregating 4.14 acres. The three parcels were assessed on the Collector's tax roll to James [**381] H. Billingsley and his first wife, Edith May Billingsley.

   [*638] In December, 1947, the Orphans' Court of Anne Arundel County granted ancillary letters of administration c. t. a. on Rev. Billingsley's estate to his widow, and she administered the part of the estate located in Maryland.  She paid the taxes on the parcels of land for the years 1948 and 1949.

   In 1949 Mrs. Billingsley conveyed by three deeds certain portions of two of the three parcels of land. Although she and her son retained three parcels, which were assessed at a total of $582, they did not pay any taxes thereon for the years 1950, 1951, and 1952.  Accordingly County Treasurer Joseph H. Griscom, Sr., advertised them for sale at auction for nonpayment of taxes.  He sold them on October 14, 1952, to A. Holland.

   The parcels were described on the tax roll as follows:

   (1) Lot No. 2, containing 1.51 acres of land, situated at Annapolis Neck in the Second District (now in the Sixth District), assessed to Edith Gross.

   (2) Lot[***6] 1.638 acres, and part of Lot No. 2, approximately .519 acre, situated at Arnold in the Third District, assessed to James H. Billingsley and Edith May Billingsley, his wife.

   (3) One lot of 1 acre, situated at Arnold in the Third District, assessed to James H. Billingsley and Edith May Billingsley, his wife.

   While the parcels were listed separately on the tax roll, the County Treasurer offered the second and third parcels together and sold them for the sum of $70.

   On November 13, 1953, Alexander Holland, Jr., and Minnie Holland, his wife, filed a bill of complaint in the Circuit Court for Anne Arundel County against James H. Billingsley and Edith May Billingsley, his wife, and Edith Gross to foreclose all rights of redemption which they had in the land.  Complainants alleged that the two certificates of tax sale which the County Treasurer issued to A. Holland were assigned by him to complainants; and that the property had not been redeemed, although more than one year and a day had passed since the date of the sale.

   [*639] On March 3, 1954, the Court signed a decree foreclosing all rights of redemption of James H. Billingsley and Edith May Billingsley, his wife, defendants, [***7] and declaring that an absolute and indefeasible title in fee simple was vested in Alexander Holland, Jr., and wife, complainants.

   On April 6, 1954, Edith Gross filed a petition praying that she be permitted to redeem Lot No. 2, consisting of 1.51 acres of land, alleging that she had paid the taxes for 1952 before the County Treasurer sold the lot for nonpayment of taxes for 1951 and 1952.  When it was discovered that the County Treasurer had sold her lot in error, complainants did not dispute her right to redeem.

   On June 14, 1954, Margaret M. Billingsley and her son, James H. Billingsley, Jr., filed a petition to set aside the sale of the other two parcels and to rescind the decree of foreclosure. Petitioners showed that the advertisement of sale did not describe the property accurately.  They also showed that the advertisement of sale named John H. Billingsley and Edith M. Billingsley as the owners of the property, whereas the names of James H. Billingsley and Edith M. Billingsley appeared on the Collector's tax roll as the owners of the property.

   The chancellor, being of the opinion that the errors were substantial, declared the tax sale null and void and rescinded the decree[***8] of foreclosure. Holland and his wife appealed here from the decree of annulment. They contend that the errors in the advertisement of sale were "minor variances" which were not sufficient to invalidate the sale.

   The Maryland Tax Sale Act explicitly directs that the defendants in any proceeding to foreclose the right of redemption shall be: "The owner of the property as disclosed by a search of the Land Records of the County, of the records of the Register [**382] of Wills of the County, and of the records of any court of law or equity of the County".  Code 1951, art. 81, sec. 101(a).

   [*640] The attorney for respondents acknowledged that he overlooked the will of Rev. Billingsley in the office of the Register of Wills of Anne Arundel County.  For that reason respondents failed to name Rev. Billingsley's surviving wife, Margaret M. Billingsley, and their son, James H. Billingsley, Jr., who were the owners of the parcels, as the parties defendant.  Thus the decree of foreclosure was properly rescinded.

   Respondents contended that petitioners were barred by laches. There is no merit in their contention.  The decree foreclosing the rights of redemption was entered on March[***9] 3, 1954.  It was not until April 5, 1954, that petitioners were notified that their property had been sold for taxes.  The information was received by Mrs. Billingsley in a letter from the attorney who had assisted her in the ancillary administration of her husband's estate. Petitioners filed their petition to set aside the sale and to rescind the decree of foreclosure on June 14, 1954.  Since petitioners filed their petition less than two months and a half after being informed of the sale, and there was no evidence that any prejudice had been caused respondents, petitioners cannot be held to be barred by laches.

   The Maryland Tax Sale Act, Code 1951, art. 81, sec. 75(e), provides that the advertisement of a tax sale shall contain the following description with substantial accuracy:

   "(1) A description of the property by giving the street number of the improvement and the frontage and depth of the lot, as the same appears on the Collector's tax roll."

   * * *

   "(4) If the property be unimproved, or has no street number, the notice shall describe the same as it is described on the Collector's tax roll, and no unimproved property, or property having no street number, need be described [***10]by metes and bounds.  * * *"

   [*641] The general rule is that the advertisement of a tax sale must describe with reasonable certainty the property to be sold, so that from an examination of the foreclosure proceedings a person of ordinary intelligence can locate the property sought to be foreclosed.  The purpose of the law requiring that an advertisement of a tax sale shall contain a description of the property is two fold: (1) to warn the owner that his property is to be sold, so that he can prevent the sale by paying the taxes, and (2) to advise prospective purchasers what property is to be offered for sale, so that they can investigate the property and determine whether they want to bid for it.

   The property should be so described as to admit of its identification by recourse to official records or at least by some means which may be referred to as common or general knowledge. Brinkley v. Halliburton, 129 Ark. 334, 196 S. W. 118, 1 A. L. R. 1225; Numitor Gold Mining Co. v. Katzer, 83 Cal. App. 161, 256 P. 464; Napier v. Runkel, 9 Wash. 2d 246, 114 P. 2d 534, 137 A. L. R. 175. The description of the property is sufficient if it fairly designates it for the information[***11] of those interested, and will thus enable the owner and prospective purchasers to identify and locate the land to be sold with substantial certainty.  Free v. Greene, 175 Md. 36, 199 A. 857, 117 A. L. R. 717; City of Boston v. Boston Port Development Co., 308 Mass. 72, 30 N. E. 2d 896, 133 A. L. R. 515.

   The law is well established that an inadequate description in the advertisement of sale will render the tax sale void. In Alexander v. Walter, 8 Gill 239, 260, 50 Am. Dec. 688, this Court held that the advertisement of a lot in Baltimore at tax sale which did not give the dimensions of the lot was indefinite in its terms and was a fatal objection to the validity of the sale.

   In Josenhans, Inc., v. Jenkins, 203 Md. 465, 102 A. 2d 257, where [**383] the advertisement of the sale of real property for unpaid taxes assessed against it referred incorrectly to Frederick W. Josenhans, the taxpayer to whom the property was assessed, as Fred W. Josenhouse, and [*642] referred incorrectly to the property as part of "Pine Grove," instead of "Addition to Sweaty Banks," the Court held that the statute governing tax sales in Harford County was not complied with and accordingly[***12] the sale was null and void.

   In the instant case one of the parcels sold by the County Treasurer was described on his tax roll as "part of Lot 2, approximately .519 acre at Arnold", while the advertisement of sale described this parcel as "part of Lot 2, approx. 519 at Arnold." We agree with petitioners that since the figure "519" did not refer to anything, it was meaningless for descriptive purposes.  We hold that the omission of a decimal point before the figure "519" and the omission of the word "acre" made the advertisement defective.  Moreover, there was nothing in the advertisement specifically describing where the land was situated and what part of Lot 2 was to be offered for sale.

   The Tax Sale Act expressly directs that if it is necessary to properly describe the property, the Collector shall procure a description and plat of the same from the County or City Surveyor.  If it is necessary to procure a description from the County or City Surveyor, the said description shall be kept among the records of the Collector's office and the published notice of sale shall contain a statement to the effect that a detailed description of the property to be sold, as prepared by the County[***13] or City Surveyor, is on file at the Collector's office and may be examined by anyone interested therein.  Code 1951, art. 81, sec. 75(e) (4).

   As the advertisement of sale was fatally defective because of its failure to properly describe the property to be sold, it is unnecessary to discuss the effect of the error in the names of the persons who appeared on the tax roll in 1952 as the owners of the property.

   For the reasons we have stated, the decree of the chancellor annulling the tax sale and rescinding the decree of foreclosure will be affirmed.

   Decree affirmed, with costs. 

RUMPLE v. HENRY H. MEYER COMPANY, INC., et al. 
No. 41, October Term, 1955
 
Court of Appeals of Maryland
 
208 Md. 350; 118 A.2d 486; 1955 Md. LEXIS 258

 December  1, 1955, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment reversed and case remanded, with costs to appellant.

CORE TERMS:  claimant, truck, shop, duty, deviation, customer, trip, driving, transportation, drive, tavern, route, happened, drove, personal pleasure, employment contract, undisputed, travelling, immaterial, resumed, journey, started, beer, amusement, decedent, deceased, highway, killed, Workmen's Compensation Act, means of transportation

COUNSEL: W. Lee Harrison and Richard C. Murray, with whom was Albert J. Goodman on the brief, for the appellant.

   Talbot W. Banks, with whom were Clark, Smith & Prendergast on the brief, for the appellees.

JUDGES: Collins, Henderson and Hammond, JJ., Prescott, J., Associate Judge of the Sixth Judicial Circuit, and Warnken, J., Associate Judge of the Eighth Judicial Circuit, both specially assigned.  Warnken, J., by special assignment, delivered the opinion of the Court.

OPINIONBY: WARNKEN

OPINION: [*353] [**486] This case involves a claim under the Workmen's Compensation Act, which is Article 101 of the Annotated Code of Maryland, 1951 Edition.  The question is whether the accidental personal injury [**487] which the appellant[***6] (claimant) sustained, arose out of and in the course of his employment.  (Section 14 of Art. 101.) The State Industrial Accident Commission said it did and the lower court said it did not.  The latter ruling was made after the jury failed to agree and each party had filed [*354]a motion for judgment pursuant to Rule 8, III Trials, Part Three of the General Rules of Practice and Procedure.  From the order entering judgment for the employer and the insurer and overruling the decision of the State Industrial Accident Commission and also overruling the claimant's motion for judgment, the latter has appealed.

   At the hearing before the Commission only the claimant testified.  In the trial below the claimant and a county police officer, who found the claimant after the accident in a field in an unconscious condition, were the only witnesses:

   The material facts are as follows:

   The Henry H. Meyer Company, Inc., employer, is engaged in the business of selling and servicing construction equipment such as cranes, shovels and loaders.  Its shop is located at Arbutus, Baltimore County.  Claimant was 38 and unmarried at the time of the accident, September 14, 1953, and lived at Odenton, [***7] Anne Arundel County.  He had been working for the employer since April, 1950.  He described his duties as service and maintenance man.  He would help to unload new equipment delivered to a customer and stay with it a couple of days to service it, i. e., to see that the customer got the right performance out of the machine and that it was given the proper lubrication and adjustment. Where it was possible claimant made repairs and adjustments in the field or at the customer's location.  When not so engaged he worked in the employer's shop at Arbutus.  The out-of-shop jobs caused claimant to travel to Washington and various points in the states of Virginia, Delaware and Pennsylvania.  Such trips were made by automobile in which claimant kept his tools that were worth about $1500.

   Claimant was on call 24 hours a day.  He worked any time that a customer called and there was work to be done, including nights and Sundays, and he received telephone calls at his home.  In the beginning of his [*355] employment he used his own pickup truck for transportation to jobs away from the shop. The employer paid claimant a mileage allowance for such trips which just about covered the upkeep[***8] of the truck but not running repairs or new tires.  He also used his truck between the shop and his home.

   Claimant's boss, who was shop superintendent, decided to discontinue the mileage arrangement and proposed that the employer would provide claimant with a truck and pay all expenses including gasoline, oil, tires and everything, and that claimant could drive it to and from work and drive it just the same as if it were his own truck. The proposal was accepted by claimant and pursuant thereto several trucks had been furnished by the employer, the last, a 1953 Ford, about two or three months before the accident, which was driven less than 1000 miles.  Claimant said one of the purposes of being given the truck was to use it to go back and forth to work between his home and the shop. Claimant travelled to the job sites either directly from his home or from the shop and the customer was charged according to which was closer.  On such trips directly from home his time began when he left home and ended when he returned home. Otherwise his time began when he reached the shop and ended when he left the shop. On the Saturday before the accident claimant was instructed to make a service[***9] trip on Monday to Frederick, where he was to arrive at 8:00 A.M.  This would necessitate his leaving home between 6:00 and 6:30 A.M.

   On Sunday claimant worked in the shop until noon.  He punched his time card at that time and his pay ceased and would not have been resumed until he left his home the following morning to go to Frederick.  Upon leaving the shop claimant, with two others who had worked in the shop that morning, went in the 1953 Ford truck, which [**488] had been provided for him by the employer, to Tom's Tavern at 1107 S. Paca Street, Baltimore, arriving there about 12:30 P.M. Each of [*356] them had two beers. The companions separately left to go home, the last about 2:30 or 3:00 P.M.  Shortly thereafter claimant drove out to Rudy's, on the Old Annapolis Road, and got his dinner, being there from about 3:00 to 4:30 P.M.  He then stopped at the yard of one of his employer's customers to see a timekeeper or superintendent of the customer and got back to Tom's Tavern around 8:00 or 9:00 P.M.  Claimant sat around there and talked, drinking only soft drinks, until it closed, after midnight, and then started to drive home.  After travelling about ten miles on the[***10] route which he daily used between the shop and his home, the right front tire "busted", causing the truck to strike and shear in half a telephone pole on the right side of the road.  Claimant was severely injured.  A police officer, who was called to the scene of the accident about 1:45 A.M. on Monday, and found claimant unconscious, said he noticed the smell of alcohol on his breath, but could not definitely say he was under the influence.  Claimant said he was not intoxicated, and had only had the two beers, previously mentioned, in the afternoon at the tavern, which does not sell hard liquor.  Tom's Tavern is not in the direction of claimant's home.  He said one of his fellow workers, who went to the tavern with him that Sunday, lives very near the tavern and it was practically a daily routine for them to go to the tavern and talk over jobs.

   The motion of each party for judgment was necessarily based on the premise that the facts are undisputed and the question involved is one of law.  If the facts are undisputed and there is no dispute as to any material inferences to be drawn from the facts, the question involved becomes one of law and should be decided by the court.  Harrison [***11]  v. Central Const. Co., 135 Md. 170, 180; Atlantic Refining Co. v. Forrester, 180 Md. 517, 523; Dunstan v. Bethlehem Steel Co., 187 Md. 571, 577; Greenwalt v. Brauns Building Specialties Corp., 203 Md. 313, 318-319. As we find there is no dispute [*357] with respect to the material facts or the inferences to be drawn therefrom, we will proceed to decide the legal question involved.

   The courts have qualified or adopted exceptions to the general rule that injuries sustained by employees while going to or returning from their regular place of work do not arise out of and in the course of their employment, as the hazards they encounter on such trips are ordinarily not incidents to the employer's business.  One of the exceptions that is now uniformly recognized and applied is that where the employer furnishes the employee free transportation to and from his work as an incident to the employment, an injury sustained by the employee during such transportation arises out of and in the course of his employment.  And the employee is deemed to be on duty during transportation. Watson v. Grimm, 200 Md. 461, 467-469. The fact that the employee is not being paid wages at[***12] the time of the accident is immaterial. Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 482. In Heaps v. Cobb, 185 Md. 372, 383, an employee of the City was killed while riding to the office in his own car in the morning to keep an appointment (which is the same as reporting for work). It was the custom of the City to furnish an automobile to take the employee to the office and to his home.  It was held that deceased was "in the actual performance of duty" when he met his death.  The quoted provision of the Employees' Retirement System was treated as legally the same as the provision of the Workmen's Compensation Act involved in the case at bar.  Where an automobile is furnished by the employer as the means of transportation, and the employee sustains an injury while driving it, either during or after a deviation from the usual or most direct route home, the legal result as to whether the accident arose out of and in the course of his employment will usually depend upon the particular circumstances.  Thus a prior adjudication is frequently not too persuasive or helpful, as the decision in each case is dependent upon its own facts.

   [*358] [**489] The employer's[***13] principal contention is: "Obviously, even though the appellant's use of the truck was with his employer's consent, the exercise of that license for personal purposes did not place the appellant within the scope of his employment.  No obligation or duty of his work required the appellant to be on the highway in the middle of the night when this accident occurred." As the accident happened at the precise spot and in the same way as it could have happened if the claimant had driven directly home upon leaving the shop, the effect of the employer's contention must be that the delay caused by the temporary deviation for personal purposes broke the connecting link between claimant and his employment, not only during the period of deviation, but thereafter and while he was travelling towards his home on the route which he always used.  There is no exact method of determining the legal effect of a deviation. It depends upon the circumstances; the nature of the work and the terms of the contract of employment being most important.  Watson v. Grimm, supra, p. 466.

   Thirty years ago in Fletcher v. Meredith, 148 Md. 580, 583, this court, in a suit for personal injuries caused by an automobile, [***14] clearly stated that it depends upon the circumstances as to whether there has been a resumption of the employer's service:

   "But the opinion of this Court is that the weight of authority, and the better reasoning, are to the effect that the bare fact of return toward the garage after a personal use by the employee [with employer's consent] does not alone constitute resumption of the employer's service; that it may in some circumstances, and in others it may not.  It would seem possible that an employer's service could be terminated at a distant point, and the car or truck then delivered over to the use of the employee until ultimately returned to the garage."

   [*359] In Greenwald, Inc. v. Powdermaker, 170 Md. 173, a workmen's compensation case, we held that a meat salesman who, after calling on retailers, deviated to collect some personal house rents and was killed while driving home with the intention, as was his custom, to get lunch and to telephone to customers, was engaged in the course of his employment at the time of his death. 

   In the instant case the employment contract was changed at the instance of the employer.  The claimant had been making the trips to[***15] and from home in his own truck and at his own expense.  The employer not only furnished a truck for transportation to jobs away from the shop, but specifically included, without any expense to claimant, the latter's right (1) to drive to and from work and (2) to drive it just the same as if it were his own truck. There is nothing in this arrangement to even suggest that the claimant was required, upon discontinuing work for the day, to go directly home.  Nor does the nature of the work indicate that it is either necessary or desirable.  In short, it cannot be found that it was the employer's intention or to his benefit that the claimant should not take the necessary time out on the journey home to engage in personal pleasure or business.  On the contrary it would be quite unrealistic, as well as an additional expense to the employer, if the claimant first drove home and then virtually retraced his steps to visit Tom's Tavern. The employer's effort to segregate from the total arrangement concerning use of the truck, the trips between the shop and claimant's home, and characterize such use as permissive rather than as part of the employment contract, has no support in the evidence[***16] and comes too late in the particular branch of the subject to be seriously considered.  It is now firmly established as a legal principle by the courts that under such an employment arrangement as exists in this case, the claimant is on duty and, therefore, in the course of his employment while travelling directly to or from his work.

   [*360] Assuming for the purpose of the discussion, but not so deciding, that during the time claimant was visiting the several places above mentioned he was not in the [**490] duty of the employer, nevertheless he was, in our opinion, in the course of his employment when the accident happened. At that time claimant was doing just what the employment arrangement provided for -- driving home.  The reason for the delay in reaching that point is immaterial under the facts of this case.  In Meyer v. Royalton Oil Co., 167 Minn. 515, 516 (1926), a deviation case, the court in deciding for the employee a contention similar to the one made in this case, said that "it was concededly his [employee's] duty to take the truck to Royalton and he had no fixed time for doing so." (Italics supplied.) Strained reasons of either fact or law which would[***17] deny the claim should be rejected because the Act should be so interpreted and construed as to effectuate its general purpose.  Code 1951, Art. 101, sec. 64.

   In most of the cases where, as a result of the employment contract, the employee was in the duty of the employer while driving the latter's or his own automobile the legal effect of a deviation from the direct route for the personal pleasure of the employee was not based on the length of time of the deviation. Perhaps a reference to some of the cases most in point will be illustrative.

   In Webb v. North Side Amusement Co., 298 Pa. 58 (Supreme Court of Pa., 1929), the deceased was a chauffeur for an amusement company and also a private driver for its general manager.  He drove the general manager and others to New York for a business trip, and on Friday when the business was concluded he drove them to Atlantic City for recreational purposes.  They remained from Friday until Sunday afternoon when their homeward journey to Pittsburgh began.  At the time of the accident, in which the chauffeur was killed, they were on the most used and shortest motor route [*361] between New York and Pittsburgh.  It was held that the parties[***18] had returned to the service of the amusement company at the time of the accident.

   In White, Adm. v. Frank Z. Sindlinger, Inc., 30 N. J. Super. 525 (1954), the employee was furnished a pickup truck for transportation of himself and other employees to and from work.  The truck was garaged at the decedent's home. During several hours after quitting work the decedent and one or two others made several stops for the purpose of buying and consuming beer. Some part of the time he was driving one of the employees to the latter's home.  While the decedent was on the road leading to his home the car turned over and caused his death.  The Court found there was a deviation but that it was not unduly extended.  It said that when he started on his way home he was back in the course of his employment and that his death followed as a rational sequence from a risk connected with the employment; that the nature of his duties exposed him to the highway danger.

   The case of Beem v. Lee Mercantile Co., 337 Mo. 114 (1935), is quite similar to the case at bar.  Beem was a salesman who covered certain rural districts by automobile.  He called on some customers, had dinner at his mother-in-law's [***19]home at Pleasant Hill, made up his orders and reports and mailed same at about 9:30 P.M.  Beem then went to a restaurant and played cards for his own amusement until about 12:30 A.M. at which time he started to drive ostensibly to his home at Harrisonville which was his usual route. He was found dead in his car, which was on the road near Harrisonville, having been shot and robbed.  It was held that he had resumed his duties and his death arose out of and in the course of his employment.

   The employer in the instant case cites Duggan v. Toombs-Fay Sash & Door Co., 228 Mo. App. 61 (1933), decided by an intermediate appellate court.  A close reading of the opinion will disclose that the employee [*362] had not resumed his employment at the time of the accident.  The Duggan case was also relied on by the employer in Beem v. Lee Mercantile Co., supra. In the opinion in the latter case, the highest court of the state succinctly disposed of the Duggan case by stating that Duggan and his wife "took a sort of joy ride" and "it was on this joy ride that the [**491] accident happened." (337 Mo. 123.) 

   In McKinney v. Dorlac, et al., 48 N. M. 149, 156 (1944), the[***20] employee, being paid for the day, while travelling in his own car to another city stopped on the way at a bar for an hour or more.  The court said it "was not so great a deviation from the pursuit of his journey to bar recovery;" that "the deceased was justified in doing that which a reasonable person might do under like circumstances and still be engaged in his master's business."

   Dooley v. Smith Transfer, 26 N. J. Misc. 129, a decision of the New Jersey Workmen's Compensation Bureau, is cited in behalf of the employer.  There was a period of about 9 1/2 hours between the employee's last business act and the injury he suffered on the route home.  The Court in White, Adm. v. Sindlinger, supra, in referring to the Dooley case, mentioned that the deputy director found that the amount of intoxicants consumed by Dooley "had created a situation amounting to wilful misconduct which brought the injury upon himself." (30 N. J. 529.)

   The case of Atlantic Refining Co. v. Forrester, 180 Md. 517, is heavily relied on by the employer.  The claim was denied because at the time of the accident, Forrester, the employee, was on the highway for his own pleasure and benefit.  After[***21] closing the filling station, where Forrester was working, at 11 P.M. Roberts, the owner, in his truck, drove with Forrester to a tavern. About two hours later they set out for a restaurant, which was found to be closed, and then they started for an all night diner.  Before reaching the latter the accident [*363] happened. The truck was not Forrester's and he was not even on his way to the hotel at which he was staying.  It could not be found from the employment contract or the nature of his duties that Forrester was in the service of his employer at the time of the accident.  The case is quite different from the case at bar.

    We find as a matter of law that the accident sustained by the claimant arose out of and in the course of his employment.  Therefore, the trial judge erred in granting the employer's motion for judgment.  The similar motion of the claimant should have been granted.  The judgment of the court below is reversed, and the case remanded for the entry of a judgment for the appellant, affirming the order of the Commission.

   Judgment reversed and case remanded, with costs to appellant. 

SIMON DISTRIBUTING CORPORATION v. BAY RIDGE CIVICASSOCIATION, INC. et al. 
No. 132, October Term, 1954
 
Court of Appeals of Maryland
 
207 Md. 472; 114 A.2d 829; 1955 Md. LEXIS 325

 June  22, 1955, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  right of way, gate, plat, chain, path, bed, peninsula, easement, decree, water, obstruction, waterfront, developer, erected, rights of way, removable, unobstructed, horseshoe, streets, parkers, erect, servient tenement, right to maintain, western side, terminates, river, inconvenience, obstructed, enjoyment, turnabout

COUNSEL: Matthew S. Evans and William J. McWilliams, with whom were McWilliams, Evans & Melvin on the brief, for the appellant.

   John G. Rouse, Jr., with whom were Rouse & Morton on the brief, for the appellees.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*474] [**830] This is a controversy between owners of lots in a waterfront development as to whether or not a right of way may be obstructed by a gate or a removable chain suspended between posts on either side of the right of way. From a decree declaring that the right of way might not be so obstructed the defendant appeals.

   The development which is known as Bay Ridge, is located in Anne Arundel County.  In part it fronts on Chesapeake Bay and the Severn River and[***5] in part it fronts on a body of water known as Lake Ogleton, which is connected by a channel with the River and Bay.  One arm or cove of Lake Ogleton is bordered on three sides -- west, south and east -- by the Bay Ridge development. A road called "Lake Drive" runs around this cove more or less in the shape of a horseshoe. At each end of the horseshoe, Lake Drive runs roughly through the center of a peninsula with lots on each side running down to the water. On the eastern side of the horseshoe the peninsula lies between Lake Ogleton and the River and Bay; on the western side the peninsula juts out into Lake Ogleton. Lake Drive does not run to the end of either peninsula. On the eastern side it ends at a cross-way [*475] called "Sands Path", and on the western side it ends at a cross-way called "Worden Path".  Each of these ways runs across its peninsula from the water's edge on one side to the water's edge on the other.

   This case concerns the northern tip of the western side of the horseshoe. The defendant owns all of the lots to the north of Worden Path -- that is, the whole tip of the peninsula beyond the end of Lake Drive.  It also owns five lots south of Worden Path, [***6] three on one side of Lake Drive and two on the other. It thus owns all of the lots abutting on Worden Path and on both sides of the last hundred and fifty or so feet of Lake Drive.  It wishes to put up a chain between posts near the southern end of these lots, thus restricting the access to the stub end of Lake Drive and to Worden Path. The defendant's president and his family occupy a summer residence on the corporation's property north of Worden Path.

   The individual plaintiffs are the owners of two waterfront lots to the south of the defendant's property lying on the west side of Lake Drive, and the other plaintiff, Bay Ridge Civic Association, Inc., owns property in another part of the development and is a community association of which some one hundred and twenty-five Bay Ridge lot owners are members.

   The development of Bay Ridge began in 1922, when the original developer, Bay Ridge Realty Corporation acquired three hundred and eighty acres of land and subdivided [**831] the tract into numerous lots and roads, streets and paths. It had a plat made and sold lots by reference thereto.  Between 1924 and 1934 it filed for record four separate plats of parts of the tract, one [***7]of which, made in 1924 and filed in 1931, covered the area here involved.  The owner negatived any dedication of the roads, streets or paths. The first lots were sold in 1922 and were described by reference to the plat. After the various small plats were recorded sales and convayances of lots in Bay Ridge were made by reference [*476] to the recorded plats. The defendant acquired its lots north of the "T" made by Worden Path's crossing the end of River Drive in April, 1951, and acquired its lots south of Worden Path in 1951, 1952, 1953 and 1954 (the last after this suit had been filed.

   Despite the avoidance of dedication of the beds of roads and streets shown on the plats, the then successor in interest of the original developer in 1951 conveyed some roads, including Lake Drive, to the County Commissioners of Anne Arundel County for use as public roads.  In April, 1953, the successor of the original developer conveyed the bed of Worden Path by a quit-claim deed to the defendant; and in July, 1953, on petition of the defendant, the County Commissioners closed the stub end of Lake Drive lying between the lots south of Worden Path then owned by the defendant, and in August, 1953, [***8] conveyed the bed of this closed portion of Lake Drive to the appellant.  The decree of the trial court declared that the defendant owned the beds of the Drive and Path in fee simple subject to the easements of the plaintiffs and other lot owners in Bay Ridge to the wholly unobstructed use of Lake Drive and Worden Path to get to and from Lake Ogleton and for any other purpose reasonably incident to the proper use and enjoyment of their lots.  The plaintiffs did not take a cross-appeal from that part of the Decree which established the defendant's ownership of the beds of these roads or ways.

   Lake Drive is shown on the plats as fifty feet wide and Worden Path as thirty feet wide.  Lake Drive is actually paved as a road for a width of about twenty feet.  Worden Path is unpaved and is considerably overgrown, despite some cleaning out of underbrush by the defendant.  It can be traversed on foot, but is not fit for use by automobiles.  A turnabout has developed for use by cars and trucks at or near the intersection of Lake Drive and Worden Path. In part it is on one of the defendant's lots south of Worden Path.

   [*477] The defendant's desire to obstruct Lake Drive comes from the fact [***9]that "parkers", who are described as members of the general public and not Bay Ridge residents, make use of Lake Drive and the turnabout area far into the night as a lovers' lane; and since their conduct is said to be at times less than exemplary and they leave broken bottles, beer cans and other trash behind them, Mr. Simon and his family have experienced considerable annoyance.

   There is no real dispute as to the law.  It was recently stated by Judge Delaplaine in Bishields v. Campbell, 200 Md. 622, at 624-625, 91 A. 2d 922, when that case came before this Court on a second appeal:

   "As the second decree has given rise to controversy over the meaning of 'free use of the roadway,' we think it appropriate to state the general principle that a right of way is merely a right of passage and the owner of the land is entitled to use it for any purpose that does not unreasonably interfer with the use of the easement. Hence, it is held in this State that, in the absence of an agreement or surrounding circumstances to the contrary, the owner of the servient estate has the right to maintain gates on a right of way at the points where the way begins and terminates. Baker v. Frick,[***10] 45 Md. 337, 341, 24 Am. Rep. 506. Of course, if a grant, construed in connection with the surrounding circumstances, shows an intention that no gate shall be erected, such a showing of intention is controlling.  It is equally [**832] true that the fact that a gate was standing at the time of a grant is a circumstance that strengthens the presumption that the parties contemplated that a gate might thereafter be maintained."
 
See also Tiffany, Real Property, 3rd Ed., Vol. 3, Sec. 812, page 357; Restatement, Property, Servitudes, Section 486; 17 Am. Jur., Easements, Section 121; 28 C. J. S., [*478] Easements, Section 98 (1) (b); 73 A. L. R. 778, Annotation, "Right to maintain gates or bars across right of way." The difficulty comes over the application of the law -- in other words, does the grant, construed in connection with the surrounding circumstances, show an intention that no gate or other obstruction shall be erected?

   The defendant-appellant contends that there is no agreement and that there are no surrounding circumstances to deprive it of the right to place a removable chain across the right of way at the point where it joins the public[***11] road portion of Lake Drive, and urges that the inconvenience to other lot owners in Bay Ridge would be very slight in comparison with the advantage to the defendant of excluding undesirables.  The plaintiffs-appellees take the opposite position and contend that the grant, which they say is contained in the plat, construed in connection with the surrounding circumstances, shows an intention that no gate, chain or other obstruction should be erected. In a full and characteristically vigorous opinion the late Judge James Clark, who heard the case in the Circuit Court, in substance adopted the views for which the plaintiffs now contend.

   There is force in the contentions of each side.  Worden Path ends in a marsh at each end and there are at present no boating or bathing facilities at either end.  The type of obstruction which the defendant seeks to erect would cause no interference to pedestrians who could walk around the outside of either gatepost without having to touch the chain. The members of the Simon household and other visiting their residence, including persons having occasion to make deliveries there, would probably suffer more inconvenience from the chain than would anyone [***12] else; and little use seems to be made of the right of way by other residents of Bay Ridge.

   The defendant relies, among other authorities recognizing the general rule that the owner of the servient tenement may erect gates at the termini of a right of [*479] way over his land, upon a dictum in Walton, et al. v. Poplas, et al., 32 Del. Ch. 292, 85 A. 2d 75, decided in 1951.  That case involved a development in which the plaintiffs had right of way over walkways at the rear of defendants' lots.  Several gates had been erected, and it was possible that if the defendants were entitled to maintain them, persons seeking to reach a common parking area might have to open and close seven or eight gates. The court held that this would be too great a burden.  The dictum upon which the defendant relies is that "If the difficulty * * * were caused entirely by one gate, a court might be constrained to hold that the inconvenience caused to the dominant tenement by the erection of a swinging gate would be much less important than the protection which would be afforded to the servient tenement in the use of the property involved." This is a carefully guarded statement which lends some support, [***13] but not a great deal, to the defendant's contention.

   In Baker v. Frick, 45 Md. 337, cited and followed in the Bishields case, a majority of the Court held that there was nothing in the agreements between the parties under which a right of way was granted that necessarily deprived the owner of the servient tenement of the right to erect gates at the termini of the right of way, and that his right to do so depended upon other considerations. The Court cited Chancellor Kent (3 Kent, 419, 420) in support of the rule that "'Nothing passes as incident to such a grant, but that which is necessary for its reasonable and proper enjoyment.'" It then added: "What is necessary for such reasonable and proper enjoyment of the way granted, and the limitations thereby [**833] imposed on the use of the land by the proprietor, depends upon the terms of the grant, the purposes for which it was made, the nature and situation of the property subject to the easement, and the manner in which it has been used and occupied."

   [*480] In this State the importance of access to the water in a waterfront development has been clearly recognized.  North Beach v. North Chesapeake Beach Land [***14]  & Improvement Co., 172 Md. 101, 191 A. 71; Williams Realty Co. v. Robey, 175 Md. 532, 2 A. 2d 683; Klein v. Dove, 205 Md. 285, 107 A. 2d 82. The last of these cases dealt with a right of way. The Circuit Court for Anne Arundel County there held that the plaintiffs were entitled, in common with others, to use a part of the development known as the "lake area" which gave access to the river and were entitled to an unobstructed right of way over a strip of land adjoining the defendant's lot and entered a decree to that effect, which also required the defendants to remove obstructions from the right of way and restrained them from interfering with the plaintiffs' right of way. The decree was affirmed on appeal.  In that case the right of way had been so thoroughly obstructed as to prevent its use at all, and the controversy turned largely on the defendants' claim that they had a right to block it entirely, which claim both the Circuit Court and this Court rejected. The issue there went far beyond the right to maintain a swinging gate or a removable chain.

   Applying the tests set forth in Baker v. Frick, we find that the property retained by the grantor of the easement[***15] (the developer) was simply title to the bed of the roads or paths over which rights of way were granted by sales made on the basis of the plats. The grantor-developer obviously had no use for the property otherwise than as roads or paths, and hence had no apparent purpose to serve by putting up gates or chains at any point.  The main purposes of the rights of way in this waterfront were evidently to enable lot owners and their families to get about in the development and to get to the water. Gates, chains or like obstructions across any roads or paths could only defeat this purpose or makes its attainment more difficult.  The fair inference from the showing of these ways on the plats was, we [*481] think, that they should be unobstructed, and we do not see how the defendant's acquisition of title to the beds of Worden Path and a portion of Lake Drive could alter the representations made to other purchasers of lots by the plats upon the faith of which lots in the development were sold.

   We are not unmindful of the unpleasantness to which the occupants of the defendant's property have been or may be exposed by visits of "parkers" having no right to use Lake Drive or Worden Path, [***16] but we do not think that the rights of other lot owners in Bay Ridge can be taken away from them in order to prevent trespasses by others.  We may also observe that we see no reason why the defendant may not erect a fence or posts or other obstacles to prevent the use of its property for a turnaround by others, including the owners of lots in Bay Ridge.  Their rights to use Lake Drive and Worden Path do not authorize them to use any part of their neighbor's property as an addition to the road.

   In accordance with the views above expressed the decree of the Circuit Court will be affirmed.

   Decree affirmed, with costs. 

BALILES v. BRYANT 
No. 116, October Term, 1954
 
Court of Appeals of Maryland
 
207 Md. 332; 114 A.2d 601; 1955 Md. LEXIS 310

 June  9, 1955, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment reversed, with costs, and case remanded for further proceedings.

CORE TERMS:  broker, cottage, renewal, license, real estate, one-half, new trial, employer-broker, licensed real estate broker, contract of sale, employee-saleswoman, saleswoman, salesman, improved, sale of certain, procuring, coupled, General Rules of Practice, improperly granted, sufficient to warrant, entitled to recover, obstante veredicto, evidence adduced, duly licensed, work done, conversation, transmission, misconduct, estopped, slight

COUNSEL: C. Maurice Weidemeyer, with whom was Basil E. Moore, Jr., on the brief, for the appellant.

   No brief and no appearance for the appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins and Hammond, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*334] [**601] This is an appeal by the plaintiff below from an order granting a motion for a judgment non obstante veredicto and directing the entry of judgment for the defendant.  The suit was brought to recover one-half of the commissions on the sale of several lots improved by a cottage at Beverly Beach.  The plaintiff-appellant, Mrs. Lottie V. Baliles, was a real estate salesman who had been employed by the defendant-appellee, George E. Bryant, a licensed real estate broker. The sale price of the property was $15,000, commissions thereon at 5% amounted to $750, and there was no dispute that, if the plaintiff was entitled to recover at all, she was entitled to one-half of the commissions, [***5] namely, $375.

   [**602] There was some question as to whether or not the plaintiff was authorized to act as a real estate salesman at the time when the contract of sale was entered into.  The appellee has blown hot and cold on this question. Though there was much testimony on the subject, during the cross-examination of the appellee his counsel denied that the appellee was "making a contention about the license," but in his motion for a directed verdict he specifically invoked Code (1951), Article 56, Section 235, which bars suits for compensation for any act or service the doing or rendering of which is prohibited to persons other than licensed real estate brokers or salesmen, unless the person asserting the claim was duly licensed as such broker or salesman prior to the time of offering to perform any such act or service or of procuring any agreement for the payment of compensation for such [*335] act or service.  However, the appellee took no exceptions to the instructions of the trial court relating to this (or any other) phase of the case, nor did his motion for a judgment n. o. v. refer to this question.  Since the appellee filed no brief and was not represented [***6]in this Court, his position on this point remains somewhat obscure; but his failure to renew his objection on this score in his motion for a judgment n. o. v. strongly suggests that he abandoned the point and thereby returned to the position formerly stated by his counsel.

   Whatever his ultimate position may have been, the record shows that the plaintiff was duly licensed as a real estate salesman in the employ of the defendant in 1952.  Her license expired on April 30, 1953, and there was testimony on her behalf that at the end of April or in the first part of May she paid over to the defendant the amount of the $5.00 license renewal fee for transmission to the Real Estate Commission.  He denied this, but certainly the conflict of testimony was sufficient to take this issue to the jury, if the license had to be renewed at all prior to the date of the contract of sale which gives rise to this suit.  If the plaintiff's lack of a renewal of her license was due to the failure of the defendant to send in her application and renewal fee, he would, we think, be estopped to raise the objection, even though the renewal was not actually issued until October, 1953, as appears to have been [***7]the case.  The trial court submitted the case to the jury on instructions substantially in accordance with these views, and the verdict of the jury was in favor of the plaintiff.

   We find it unnecessary in view of the foregoing to decide the question as to whether or not it would have been necessary for the plaintiff to apply for a renewal before the date of the contract of sale in order to avoid the bar of Section 235 of Article 56 of the 1951 Code.  This would involve the construction of Sections 234, 235, 237 and 238.  See an interesting annotation on the effect of the absence of a license as affecting a broker's right to compensation in 169 A. L. R., beginning at 767, [*336] and the case to which that annotation is appended, which involved a somewhat different statute from that in force in Maryland.

   On the merits of the claim we think that the same rule is to be applied as between the defendant employer-broker and the plaintiff employee-salesman as would apply between an owner and a broker. See Bowie v. Martin, 199 Md. 58, 85 A. 2d 786, where the same rule was applied as between a broker to whom the owner had an exclusive agency and another broker who asserted an agreement[***8] with the first broker under which the second claimed to be entitled to one-half of the commissions on a sale of the property there in question.

   There was a conflict in the testimony as to whether or not the plaintiff was the procuring cause of the sale.  The purchasers were a Mr. and Mrs. Collison who lived in the vicinity of the cottage which they contracted to buy. The defendant testified that negotiations leading up to the contract originated from prior conversations in which Mr. Collison had asked him to be on the lookout for a cottage for him and from his (Bryant's) telephoning Mr. Collison about the cottage on the day when he was authorized to sell it and before he had even put up a sign on it.  He contended that Mrs. Baliles had nothing to do with [**603] effecting the sale.  Mr. Collison testified that he was familiar with the cottage, as he had helped to build it about seventeen or eighteen years previously and had done other work on it from time to time thereafter.  He also testified that he saw two brokers' signs on the property -- Mr. Bryant's and another's -- on the morning of he day after Mr. Bryant had been authorized to list the property.  Mr. Bryant's testimony[***9] showed that he knew the property was also to be listed with the other broker, a Mr. Criser, and there seems to be no doubt that it was.  Mr. Collison further testified that after seeing the two brokers' signs on the cottage, he went at once to Mrs. Baliles' office, which was nearby, that he knew that she worked for Mr. Bryant and that he wanted her to get one-half of the commission on the [*337] sale.  It appears that the plaintiff and Mr. Collison were friends, and each of them testified that she was a customer of his store at Beverly Beach.  Mr. Collison stated he wished to throw business her way as a matter of reciprocity.  Mrs. Baliles and Mrs. Collison were not friendly, and Mrs. Baliles had no direct dealings with Mrs. Collison in this matter.

   It is clear from the testimony that the first news that Mrs. Baliles had that this cottage was for sale came to her from Mr. Collison after he had seen Mr. Bryant's sign.  She did not know the offering price and she did not have a key to the cottage. However, she and Mr. Collison both testified that they went over together and looked at the property and that thereafter he then drove to Mr. Bryant's office to get the key and further[***10] information.  Mr. Collison, who had worked for Mr. Bryant some years previously, testified that he told Mr. Bryant on this visit that he wanted Mrs. Baliles to have her share of the commission, and that Mr. Bryant replied, "There's no doubt about that." He also testified that he and Mr. Bryant then came back to the cottage and that later in the day they both visited Mrs. Baliles at her office at Beverly Beach, but that nothing more was said at that time about commissions, as he thought it was all understood.  Mrs. Baliles, on the other hand, testified that during the conversation in her office Mr. Collison told Mr. Bryant that he (Collison) "wanted me [Mrs. Baliles] to get the commission, that's why he was buying through him [Mr. Bryant], otherwise he would have bought through Mr. Criser." The credibility of the witnesses was, of course, for the jury.

   No extensive citation of authority is needed in support of the rule that in deciding whether or not to grant a demurrer prayer or a motion for a judgment non obstante veredicto, the court should resolve doubts in favor of the plaintiff and should assume the truth of all evidence and such inferences as may naturally and legitimately[***11] be drawn therefrom which tend to support the plaintiff's right to recover.  See, for example, Beck v. [*338] Baltimore Transit Co., 190 Md. 506, 58 A. 2d 909; Kremer v. Fleetway Cab Co., 197 Md. 557, 79 A. 2d 853; Stottlemyer v. Groh, 201 Md. 414, 94 A. 2d 449.

   Although the amount of work done or of the efforts made by the plaintiff to bring about the sale appears to have been very slight, we think that the evidence adduced by the plaintiff to show that the business came to the defendant through the plaintiff and that otherwise it would have gone to the other broker was sufficient to warrant the submission of the case to the jury and to sustain its verdict, and hence that the motion for a judgment n. o. v. ought not to have been granted and that the judgment for the defendant should be reversed.

   However, a motion for a new trial was coupled with the defandant's motion for a judgment n. o. v. as permitted by Rule 8(a) of Part Three, Subdivision III of the General Rules of Practice and Procedure.  This motion raised two points in addition to the question presented by the motion for judgment n. o. v.

   These pertain to alleged misconduct affecting the jury. [***12] The motion for a new trial does not appear to have been ruled upon by the trial court.  Under paragraph (c) of Rule 8 above referred to, and in accordance [**604]with the practice followed in Kremer v. Fleetway Cab Co., supra, and True v. Westernport, 196 Md. 280, 76 A. 2d 135, we shall remand the case for consideration by the Circuit Court of these two points raised by the motion for a new trial.

   Judgment reversed, with costs, and case remanded for further proceedings. 

BRASHEARS et al. v. COLLISON et al.  (Two Appeals in OneRecord) 
No. 136, October Term, 1954
 
Court of Appeals of Maryland
 
207 Md. 339; 115 A.2d 289; 1955 Md. LEXIS 311

 June  9, 1955, Decided

   SUBSEQUENT HISTORY: [***1]

   Petition for Clarification of Opinion Filed June 14, 1955, Granted June 21, 1955, and Opinion Amended in Part.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed in part and reversed in part and case remanded for further proceedings, costs to be paid by Thomas E. Collison and Etta Mae Collison.

CORE TERMS:  tax sale, grandchildren, right of redemption, decree of foreclosure, decree, foreclose, laches, certificate, died, property sold, life tenant, residuary, testator, devisee, foreclosure proceedings, fee simple, foreclosure, holder, statute of limitations, right to redeem, redemption, chancellor, devise, order of publication, certificate of sale, remainder interest, vested remainder, null and void, final decree, non-payment

COUNSEL: Marvin I. Anderson and Malcolm B. Smith for B. Raymond Brashears and the other petitioners.

   George B. Woelfel, with whom was Thomas J. Curley on the brief, for Thomas E. Collison and Etta Mae Collison, his wife.

   Wilmer D. Pyles, with whom was Arthur G. Lambert on the brief, for J. D. Hedin and Emma J. Hedin, his wife.

   Charles F. Stein, with whom was O. Bowie Duckett on the brief, for the National Central Bank of Baltimore.

   C. Maurice Weidemeyer, with whom was Basil E. Moore, Jr., on the brief, for Harry Orme and Cora V. Orme, his wife.

 JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*342] [**291] [***7] This is an appeal from a decree denying the reopening of a decree of foreclosure of property sold at tax sale as to some interested parties, and reopening and declaring null and void the decree of foreclosure as to other parties.

   The facts of the case are substantially as follows.  Nicholas G. Collison died testate in Anne Arundel County on or about May 30, 1908, seized and possessed, among other things, of certain real estate including a tract of [*343]land containing approximately twenty acres in Anne Arundel County.  By his last will and testament, dated February 26, 1907, he devised this twenty acre tract of land to his son, David W. Collison, "for and during his, the said David W's life and at his death to go to his children lawfully begotten share and share alike the Child or Children of any deceased child of said David's to take the parents share." After a number of other devises and bequests, he devised and bequeathed all the rest and residue of his estate "to be divided equally share and share alike among those of my grandchildren, only, who are heretofore named in this Will, said shares to be paid or deposited in the manner prescribed in the specific bequests and devises[***8] to them severally made." This will was admitted to probate on June 9, 1908, and David W. Collison qualified as executor.  He paid the taxes on the land through the year 1936 but failed to pay the taxes thereon for the years 1937 and 1938.  The Treasurer of Anne Arundel County on October 10, 1938, sold the property for non-payment of taxes for $36.00, being the amount in arrears including interest and costs, to Minnie E. Collison, the wife of David W. Collison, and one of the appellees here.  This sale was reported to the Circuit Court for Anne Arundel County and an order passed on November 2, 1939, ratifying and confirming the sale.  The Treasurer and County Commissioners of Anne Arundel County by deed dated December 19, 1939, conveyed the property to Minnie E. Collison in fee simple.

   Under the provisions of Chapter 761, of the Acts of 1943, known as the Tax Sales Act, Code, 1951, Article 81, Section 72-90 inclusive, which provided a proceeding wherein the equity of redemption of former owners of real estate sold at tax sale could be foreclosed, a tax sales certificate was issued on September 8, 1944, to Minnie E. Collison, showing the sale of the real estate purchased by her at[***9] the tax sale. The said Minnie E. Collison, on September 20, 1944, assigned the certificate of tax sale to Thomas E. Collison, a nephew of her husband, but not one of the grandchildren named in the [*344] will of Nicholas G. Collison.  Three days later, on September 23, 1944, Thomas E. Collison and Etta Mae Collison, his wife, among the appellees, and the cross-appellants in this case, filed a bill of complaint against his uncle, David W. Collison, the life tenant "and all persons having or claiming to have any interest in the property assessed to David W. Collison '20 acres and improvements, Mayo District No. 1,' * * *." They asked that the right of redemption in said property be foreclosed.  This bill of complaint recited, among other things, the fact that the tax sale was made to Minnie E. Collison, who was the wife of David W. Collison, "who held a life interest therein under the will of his father, Nicholas G. Collison, * * * to go to his children lawfully begotten share and share alike * * *" and that the said David W. Collison was still living and had no children prior to the tax sale nor did he have any children at the time the bill of complaint was filed.  The order of [***10]publication was published "warning all persons having or claiming to have an interest in the property to answer the bill of complaint or to redeem the property on or before the thirtieth day of November, 1944." A decree pro confesso was taken against David W. Collison "and all persons having or claiming to have an interest in the property" on December 1, 1944.  On December 28, 1944, a final decree of foreclosure was entered and the solicitor for Thomas E. Collison and wife was appointed to convey the real estate to the said Thomas E. Collison and wife in fee simple. This decree of foreclosure provided in part that "all [**292] rights of redemption of all Defendants whether named or not and of all persons having or claiming to have any interest in the property * * * be and they are hereby forever foreclosed." The trustee, on January 8, 1945, executed a deed in fee simple to Thomas E. Collison and wife for the said twenty acres of land.

   Since the execution of that deed Thomas E. Collison and wife have been in possession of the property, built a store thereon, have had plats prepared, and caused [*345] it to be subdivided into lots.  They are still in possession of some of[***11] these lots but have made conveyances of others.  On March 2, 1946, they conveyed to Marshall Barnes and wife three lots which were mortgaged by Barnes and wife to the Annapolis Banking and Trust Company, one of the appellees here.  On January 19, 1950, Barnes and wife conveyed the lots, subject to the aforesaid mortgage, to Paul D. Collison and wife, two of the appellees here.  On February 3, 1950, Thomas E. Collison and wife conveyed to Harry Orme and wife, appellees herein, nine lots subject to a purchase money mortgage to Thomas E. Collison and wife.  On February 28, 1950, Thomas E. Collison and wife conveyed eight lots to J. H. Hedin, one of the appellees here, which are subject to a mortgage to the National Central Bank of Baltimore, one of the appellees.

   David W. Collison died on or about July 30, 1950, without leaving any child or children or descendants surviving.  The only child ever born to David W. Collison died in infancy in 1896, twelve years before the death of Nicholson G. Collison.  On September 19, 1953, some of the residuary devisees in the will of Nicholas G. Collison filed a bill of complaint wherein they prayed that the tax sale herein and the proceedings for[***12] the foreclosure of the right of redemption be declared null and void, and the property sold for the purposes of partition.  A demurrer was sustained to that bill.  On March 16, 1954, four of the grandchildren, named as residuary devisees in the will of Nicholas G. Collison, filed a petition in the foreclosure case praying that the proceeding therein be reopened; that the tax sales be declared null and void; and for other and further relief.  After answer filed, testimony was taken in open court by the chancellor. He decreed on October 15, 1954, that the petition be dismissed as to so much of the land as was conveyed by Thomas E. Collison and Etta Mae Collison, his wife, to the Barnes, the Ormes and J. D. Hedin.  He further decreed that the decree of foreclosure be reopened and declared null and void as to the petitioners, appellants [*346] here, as to all the lands other than the parts conveyed by Thomas E. Collison and wife to the said Barnes, Ormes and J. D. Hedin, and that Thomas E. Collison and wife pay the costs of the proceedings.

   From that decree the appellants, petitioners, B. Raymond Brashears and Rose Brashears, his wie; David Clifton Dawson and Yetive C. Dawson, his[***13] wife; Elsie Winstead Hutchinson and Orion Neely Hutchinson, her husband; Myrtle Collison Young and William O. Young, her husband, hereinafter designated as appellants, and Thomas E. Collison and Etta Mae Collison, his wife, hereinafter designated as cross-appellants, appeal to this Court.

   Chapter 761, Section 90M, of the Acts of 1943, Code, 1951, Article 81, Section 111, provides: "(Decree of Court Conclusive.) No application shall be thereafter entertained to reopen any final decree rendered under the provisions of this sub-title except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose. If the final decree of the court foreclosing all rights of redemption is set aside on the ground of lack of jurisdiction, the amount required to redeem shall be the amount required by the provisions of this sub-title, and in addition thereto, the reasonable value, at the date the decree is set aside, of all improvements made on the property by the purchaser and his successors in interest."

   It is provided by Chapter 761, Section 90C, of the Acts of 1943, Code, 1951, Article 81, Section 101, as follows: "(Parties.) The plaintiff in any proceeding to foreclose[***14] the right of redemption shall be the holder of the certificate of sale. The defendants [**293] in any such proceeding shall be the following: (a) The owner of the property as disclosed by a search of the Land Records of the County, of the records of the Register of Wills of the County, and of the records of any court of law or equity of the County.  (b) If the property be subject to a ground rent, the parties defendant shall be the owner of the fee simple title and the owner of the leasehold title as [*347] disclosed by a search of the Land Records of the County, of the records of the Register of Wills of the County and the records of any court of law or equity of the County.  (c) Any mortgagee of the property or his assignee of record, named as such in any unreleased mortgage record among the Land Records of the County. (d) The State of Maryland may be made a party defendant in any action to foreclose the right of redemption. It shall not be necessary to name as defendant any other person having or claiming to have any right, title, interest, claim, lien or equity of redemption in and to the property sold by the Collector.  Any or all of such persons may be included as[***15] defendants by the designation 'all persons having or claiming to have any interest in property . . . (giving a description of the property in substantially the same form as the description which appears on the Collector's tax bill).' Any or all such persons may be designated throughout the proceeding by the above designation and the cause may proceed against them by publication under order of court as hereinafter provided."

   The first question before us is whether the appellants, the grandchildren named in the will of Nicholas G. Collison as residuary legatees, were necessary parties defendant in the proceedings to foreclose the right of redemption.

   We are of opinion, as found by the chancellor, that the petitioners here were necessary defendants in the foreclosure proceedings and, therefore, as to them the court had no jurisdiction to forclose the right of redemption, they being owners of a remainder interest in the property sold at tax sale. The decree of foreclosure as to them was null and void. It was said by this Court in Ringgold v. Carvel, 196 Md. 262, 273, 76 A. 2d 327: "The will under consideration devises a contingent remainder to the grandson's children and grandchildren[***16] living at the time of his death, and by the residuary clause gives the reversionary interest to his son for life with remainder to the son's children and grandchildren [*348] living at the time of his death.  We hold that where there is a devise to one person for life with a contingent remainder to his surviving children in fee simple, and a residuary devise (including the reversion after the life estate) to another, and the life tenant had no children, the residuary devisee takes the fee simple as a vested remainder. In the language of Professor Tiffany, such devise presents 'a case of the limitation of a vested remainder subsequent to the limitation of a contingent remainder in fee simple.' 2 Tiffany, Real Property, 3d Ed., sec. 333." See also Barnum v. Barnum, 42 Md. 251, 312, 313; Miller, Construction of Wills, Sections 216, 217, 218.  The statute above quoted specifically provides that owners of property as disclosed by a search of the records of the Register of Wills of the county shall be made parties defendant in any proceeding to foreclose the right of redemption. A search of such records of the Register of Wills would show that Raymond Brashears, David C. Dawson, [***17] Elsie Petty, now Elsie Winstead Hutchinson, and Myrtle Collison, now Myrtle Collison Young, were named among the grandchildren of Nicholas G. Collison in his will and as residuary legatees. They were not named as defendants, no sub-poenas were issued against them or any of them, and no order of publication was published against them or any of them by name.  As to them the court was, therefore, without jurisdiction to pass the decree of foreclosure here attacked.  It is said in 169 A. L. R., page 717: "It has generally been held that a life tenant and the remaindermen must be made parties to an action for the recovery of taxes, or the foreclosure of a tax lien, in order to subject [**294] their interest to the payment of the taxes or foreclose their interest in the property." City of Louisville v. Kohnhorst's Adm'x., (Kentucky), 76 S. W. 43; Moore County v. Burns, 224 N. C. 700, 32 S. E. 2d 225; Williams v. Hedrick, 96 Fed. 657, 37 C. C. A. 552, (C. C. A. 7th, 1899), rehearing denied, 101 Fed. 876, 42 C. C. A. 75, (C. C. A. 7th, 1900); Gunter v. Townsend, 202 Ala. 160, 79 So. 644, (1918); Bradley v. Goff, 243 Mo. 95, 147 [*349]S. W. 1012, (1912); McCune [***18]  v. Goodwillie, 204 Mo. 306, 102 S. W. 997, (1907); Board of Commissioners of Roxboro v. Bumpass, 233 N. C. 190, 63 S. E. 2d 144, (1951); Eason v. Spence, 232 N. C. 579, 61 S. E. 2d 717, (1950).  It was said in Powell v. Turpin, 224 N. C. 67, 29 S. E. 2d 26, 28, a tax sale case, quoting from Card v. Finch, 142 N. C. 140, 54 S. E. 1009: "'It is axiomatic, at least in American jurisprudence, that a judgment rendered by a court against a citizen affecting his vested rights in an action or proceeding to which he is not a party is absolutely void, and may be treated as a nullity, whenever it is brought to the attention of the court.'" Shaffer v. Schaleben, (Texas), 236 S. W. 2d 234.

   Counsel for Thomas E. Collison and Etta Mae Collison, his wife, not presently representing them in the case before this Court, who filed the foreclosure proceedings for them, testified in effect that in his opinion it was not necessary to make the grandchildren named in the will of Nicholas G. Collison parties defendant.  The chancellor, in his opinion, in finding that the decree was obtained by fraud in law, said the following: "He [the solicitor for Thomas E. Collison and wife] decided[***19] that it was not necessary to make said grandchildren parties defendant by name and have subpoenas personally served on those who were residents of Maryland, or to actually name those who were non-residents in the order of publication. I have no doubt that in so doing he conscientiously believed that he was right.  I do not mean, for an instant, to suggest that [he] deliberately intended to perpetrate a fraud.  I know him too well for that.  But, I do think that he was wrong in his opinion, and that said decree, having been obtained without said grandchildren being named as defendants when he knew who they were and could easily have obtained their addresses if he had tried, said decree must be regarded as having been obtained by fraud in law.  * * * A decree obtained without making those persons parties whose rights are affected by it is, as to them, fraudulent.  * * * It was argued by counsel for Mr. and Mrs. Thomas E. [*350] Collison that they, having procured and relied on the advise of counsel, cannot be charged with fraud in obtaining the decree. I cannot follow him in that." In the case of Donnelly v. Baltimore Trust Co., 102 Md. 1, 12, 13, 61 A. 301, an action for [***20]deceit, it was said: "Is it to be said then that when a client makes a statement based on the opinion of reputable and competent attorneys, as he understands it, a copy of which is inserted in the document in which the statement is made, his act is to be declared fraudulent, even if it be admitted that he was mistaken in his construction of the opinion?  It would seem to be clear that it could not be so declared -- at least not unless the opinion was not open to the construction he placed on it, which we have intimated above was not the case.  This Court has in substance stated the same doctrine a number of times, but the latest expression by it is in Boulden v. Stilwell, 100 Md. 543, where it is said 'The foundation of the action is actual fraud, and nothing short of this will suffice.  Consequently a misrepresentation believed by the speaker to be true, though induced by his ignorance or negligence, will not sustain an action for deceit.  There must be either knowledge of the falsity of the representation, or such reckless indifference to truth in making it as is held equivalent to actual knowledge.' See also Cahill v. Applegarth, 98 Md. 493, and cases there cited.  Of[***21] course the law does not excuse a person in all cases merely because he relied on the opinion of his attorney, but he is not liable in this form of action -- which has as its basis actual fraud -- when he has acted on the opinion of his attorneys in making a statement, if he did so honestly.  In Derry v. [**295] Peek, 14 App. Cas. 337, LORD HERSCHELL thus explained what is meant by a statement made recklessly or without care: 'To make a statement careless whether it be true or false, and therefore without any real belief in its truth, appears to me to be an essentially different thing from making, through want of care, a false statement, which is nevertheless honestly believed to be true.' So, without further discussion of it, we [*351] are of opinion that there was not legally sufficient evidence tending to show fraud in this representation to justify the submission of it to the jury." It was said in Elwell v. Russell, 71 Conn. 462, 42 A. 862: "No fraud can be imputed by law to one who makes representations as to the title to real estate in honest reliance on the certificate of the town clerk and the advice of counsel." See also Lane v. Fenn, 65 Misc. 336, [***22] 120 N. Y. S. 237, affirmed 146 App. Div. 205, 130 N. Y. S. 995; Elliott v. Sullivan, 156 Mo. App. 496, 137 S. W. 287, 289. We must, therefore, hold that the decree here attacked was not obtained by fraud.

   The chancellor further found that the petitioning grandchildren, the appellants here, were barred by laches from then coming in and questioning the decree of foreclosure. With this conclusion we do not agree.  It is provided by Code, 1951, Article 81, Section 98, in part as follows: "(Proceeding to Foreclose Right of Redemption -- Must Be Brought within Two Years.) The holder of any certificate of sale, his heirs or assigns, may at any time after the expiration of one year and a day from the date of sale, file a bill in equity to foreclose all rights of redemption of the property to which such certificate relates, as hereinafter provided.  The right to redeem shall, nevertheless, exist and continue until finally barred by the decree of the court of equity in which the foreclosure proceeding is filed.  Unless a proceeding to foreclose the right of redemption is filed within two years of the date of the certificate of sale, the said certificate shall be void and any and all[***23] right, title and interest of the holder of the certificate of sale of his predecessors thereof, in and to the property sold shall cease and all money received by the Collector on account of the said sale shall be deemed forfeited, and shall be applied by the Collector on the taxes in arrears on said property; * * *." (Italics supplied.) It is provided by Article 81, Section 90, supra, in part as follows: "(Right of Redemption. Certificate of Redemption.) The owner or other person having an estate or interest in the property [*352] sold by the Collector may redeem the said property at any time until the right of redemption has been finally foreclosed under the provisions of this sub-title, by paying to the Collector the amount required for redemption as hereinafter set forth." (Italics supplied.) These sections specifically provide that the right to redeem shall exist and continue until finally barred by the decree of foreclosure. The burden is on the holder of the certificate of tax sale to bring the foreclosure proceedings.

   Laches is an equitable doctrine and its application depends upon the facts and circumstances of each case.  Its purpose is to do justice and it[***24] is never invoked unless it accomplishes that end.  Connelly v. Connelly, 190 Md. 79, 84, 57 A. 2d 276. It was said in Long v. Long, 62 Md. 33, 69: "It was not therefore until the termination of the life estates, that the parties so claiming and holding could be regarded as holding by wrong as against those in remainder.  In other words, the remaindermen in fee had no right of entry until the previous equitable life estates, protected by the legal estate in the trustee, had expired.  Preston v. Evans, 56 Md. 476; Jackson v. Schoonmaker, 4 John. 390. And it has been deliberately held by this Court, that a court of equity in applying the Statute of Limitations analogically, as to the right of entry, will not permit the claim of a party to be affected by any devolution of time short of that which would have barred him at law in an action of ejectment. Dugan v. Gittings, 3 Gill, 138, 161; Needles v. Martin, 33 Md. 619." Houck v. Houck, 112 Md. 122, 133, 76 A. 581. "Obviously, then, there must be a legal duty to do some act, a failure to do that duty and attendant circumstances which cause prejudice to an adverse party [**296] befor the doctrine can be [***25]successfully invoked.  Mere lapse of time, without more, unless of sufficient duration to amount to and constitute the bar of the statute of limitations, will not be sufficient." Demuth v. Old Town Bank, 85 Md. 315, 327, 37 A. 266. It is stated in 85 C. J. S., Section 853, page 232: "The method of foreclosure of the right to redeem lies within the legislative discretion, [*353]and the method prescribed by the statute must be followed." It is said in Napier v. City of Springfield, (1939), Mass., 23 N. E. 2d 157: "The general trend of decisions indicates that once a valid assessment of taxes and a sale for nonpayment of the same have been made, the method of foreclosure of the right to redeem lies within the legislative discretion." McHale v. Treworgy, (1950), Mass., 90 N. E. 2d 908; Werner v. Werner, 74 N. D. 565, 23 N. W. 2d 757; City of Charlotte v. Kavanaugh, 221 N. C. 259, 20 S. E. 2d 97.

   It was said in Fisher v. Davis, (1930), 77 Utah 81, 291 Pac. 493: "The plaintiff has argued in his brief that the defendant's title is barred by laches. It is not contended that the statute of limitations has run or adverse possession been established.  It is merely[***26] contended that, because defendant permitted the tax sale proceedings to be had without objection and without the assertion of his title, he ought not now, in equity be permitted to assert his title.  This contention is without merit.  The defendant's claim is one of legal title, and is governed by the statute of limitations. Laches apply to equitable demands.  If a legal right gets into equity, the statute governs." The appellees rely strongly on the case of Nohl v. Holloway, (1937), 179 Okla. 512, 66 P. 2d 497. In that case the owner of the land did not place the deed on record for twenty-two years and never paid any taxes on it.  That case does not seem helpful here.  Compare Phelan v. Roberts, (1938), 182 Okla. 202, 77 P. 2d 9; Street v. Dexter, (1938), 182 Okla. 360, 77 P. 2d 707; Jones v. McNabb, (1938), 184 Okla. 9, 84 P. 2d 429; Dickerson v. Fears, (1951), 205 Okla. 181, 236 P. 2d 472.

   The chancellor, in finding that laches applied here in his opinion, quoted the following: "'Irrespective of the statute of limitations, or in cases where the statute does not apply, the owner of land sold for taxes will be denied relief against the sale where he has delayed[***27] for a great and unreasonable length of time to seek redress; more especially * * * where it has passed into the hands of [*354] innocent purchasers from him in good faith. * * *'" The life tenant here, David W. Collison, died on July 30, 1950.  Until that time the petitioners did not know whether they would be divested of their vested remainder. Some of the residuary devisees took their first action against the decree of foreclosure on September 19, 1953.  There is no statute which provides any limitation against the right of the owner to redeem his property. He is barred only by a valid decree of foreclosure. We are not of the opinion that the petitioners have delayed for a great and unreasonable length of time in seeking redress.

   We are, therefore, of opinion that the decree of foreclosure passed on December 28, 1944, for lack of jurisdiction, should be reopened as to all parties shown to be the owners of the property as disclosed by a search of the Land Records, the records of the Register of Wills, and the records of the court of law or equity of Anne Arundel County, not specifically named as parties defendant.  The decree will therefore be affirmed in part and reversed [***28]in part, and the case remanded for further proceedings.

   Decree affirmed in part and reversed in part and case remanded for further proceedings, costs to be paid by Thomas E. Collison and Etta Mae Collison. 

LAQUE v. STATE (Five Appeals in One Record) 
No. 107, October Term, 1954
 
Court of Appeals of Maryland
 
207 Md. 242; 113 A.2d 893; 1955 Md. LEXIS 300

 May  16, 1955, Decided

   SUBSEQUENT HISTORY: [***1]

   Petition for Certiorari Filed August 12, 1955.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  ordinance, non-conforming, yard, salvage, zoning ordinance, special exception, junk yard, junk, certificate of occupancy, lawful, zoning, certificate, possible defense, summoned, admissible, zoned, heavy, Criminal Law, constitutional right, judicial review, continuance, affirming, deprived, highway, urges, ample opportunity, general welfare, effective date, entire record, full hearing

COUNSEL: I. Duke Avnet, with whom were James C. Morton, Jr., and Avnet & Avnet on the brief, for the appellant.

   Norman P. Ramsey, Assistant Attorney General, with whom were C. Ferdinand Sybert, Attorney [***8]  General, C. Osborne Duvall, State's Attorney for Anne Arundel County, and Clarence L. Johnson, Assistant State's Attorney, on the brief, for the appellee.

JUDGES: Brune, C. J., and Delaplaine and Collins, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*246] [**894] On August 2nd, 1954, five separate warrants were issued by a trial magistrate of Anne Arundel County for the arrest of the appellant on charges that on each of five different dates (April 13, April 22, May 11, July 2 and July 29, all in 1954) at premises on Belle Grove Road, in that County, he "did unlawfully operate a junk and/or salvage yard in violation of Section IV-C-1 (d) of the Zoning Ordinance of Anne Arundel County." In each case the appellant prayed a jury trial, the case was transferred to the Circuit Court for Anne Arundel County and the appellant was found guilty by the jury in each case.  In one case he was sentenced to a fine of $25 and costs and to six months in jail, the jail sentence to be suspended upon payment of the fine and costs, and the appellant was placed on probation.  In three of the other cases he was fined $25 and costs, and in the fourth he was fined[***9] $100 and costs.

   Before the cases went to trial before the jury the appellant filed a motion to dismiss, which was denied, in [*247] which he asserted that he was not a proper party defendant, that the "ordinance and/or statute under which he has been charged" violated the Constitutions of the United States and of Maryland and specifically asserted that "it" deprived him of property without due process of law, denied him the equal protection of the laws and operated against him as an ex post facto law.  He further asserted that the statute and ordinance are too vague and indefinite to be valid, that the "exercise and application of the ordinance and/or statute" [**895] violated his constitutional rights and privileges, that the application of the "ordinance and/or statute" constituted an abuse of the power and discretion vested in the persons enforcing the "ordinance and/or statute" and that the charges were so vague and indefinite as to make it impossible for the accused to be informed of the charges against him and thereby prevented him from properly making a defense thereto.

   Turning back to the terms of the warrant we note that the defendant is charged with operating[***10] "a junk and/or salvage yard in violation of Section IV-C-1 (d) of the Zoning Ordinance of Anne Arundel County." The testimony shows that part of the appellant's property is zoned "heavy commercial," part as "agricultural" and a small part as "cottage residential." The Zoning Ordinance does not permit a junk or salvage yard to be located in any area zoned under any of these classifications unless either (1) such a "lawful non-conforming use" existed on the effective date of the Ordinance, July 1, 1952 (See Section I-D), or (2) in the case of property zoned as "heavy commercial" and meeting certain other requirements, a "special exception" allowing such use is granted by the Board of Appeals.  (See Section IV-C-1 (d).

   Section IV-C-1 (d) reads as follows:
 
"C -- Powers of the Board of Appeals are as follows: 1. The Board shall have the power to hear and decide, in accordance with the provisions of this Ordinance, requests for special exceptions [*248] or for interpretation of the zoning map or for decisions upon other special questions upon which the Board is authorized to pass.  The special exceptions are as follows:

   * * *

   (d) Junk or Salvage yards.

   * * *

   The following[***11] minimum standards shall be met by each application for any special exceptions above listed:

   * * *

    (d) For Junk or Salvage Yards such a use may be authorized:

   1. Only in a heavy commercial or industrial zone.

   2. Where the yard itself be invisible from and at least three hundred (300) feet distant from any state or county highway.

   3. Where the general welfare, in the judgment of the Board of Appeals, will not be injured by proximity to populated areas or other circumstances."

   The prohibitions against junk yards in areas zoned as "agricultural," "cottage type residential," and "heavy commercial" are contained in Section II A 1 (b) (1), Section II B 2 a (2) (1) and Section II E 1 (b) (1), respectively. The provisions of Section IV-C deal with the powers of the Board of Appeals and sub-division 1 (d) thereof deals only with limitations on the power of the Board to grant "special exceptions" for the use of property as a junk yard or salvage yard. The charge in the warrants has been treated by the appellant, and also by the State, as sufficient to set forth an offense.  The appellant's brief states that "In this case, Appellant was being prosecuted criminally under the penalty [***12]section of the ordinance which makes it a misdemeanor to operate a salvage or junk yard without approval by the Zoning Board."

   Grammatically, the charge in the warrants is open to serious criticism since the appellant obviously could not, [*249] by operating a junk yard, violate provisions of the ordinance defining or limiting the powers of the Board to grant a permit or "special exception" to operate one.  However, the elliptical form in which the charge is stated does not appear to have misled the appellant, as is indicated by his construction of the warrants, as stated in his brief; and he has not raised either in the trial court or in this Court any objections to the warrant on the grammatical grounds which we have noted.  Had they been raised in the trial court it appears that the charges could have been corrected by amendment of the warrants at any time before final judgment under Code [**896](1951), Article 52, Section 20.  The case was tried upon the meaning of the charges as stated in the appellant's brief; and so construed, they do state an offense under the Zoning Ordinance. This construction, we think, is sustainable, though the matter has presented considerable[***13] difficulty, and this form of expressing a charge is one which is certainly not to be recommended. *

* See Leet v. State, 203 Md. 285, 289-290, 100 A. 2d 789, 791; Hurwitz v. State, 200 Md. 578, 92 A. 2d 575; Rule 3 (b) (2) of the Rules of Criminal Procedure.

   There are two different bases upon which the sanction of the Board of Appeals might be obtained for the operation of a junk yard or salvage yard. One is that of a lawful non-conforming use; the other is a "special exception."

   Section I-D of the Zoning Ordinance provides that "A lawful non-conforming use existing on the effective date of the adoption of these regulations may continue; * * *." That date was July 1, 1952.  The appellant argues that this is the controlling date, but his argument overlooks the definition of a "lawful non-conforming use." This is set forth in Section I-B (a n) as "Any lawful use existing prior to the initial passage of the zoning ordinance and contrary to the zoning restrictions of said ordinance." The date of "the initial[***14] passage of the zoning ordinance" was apparently December 2nd, 1947.  Under the amended ordinance adopted July 1, 1952, it was necessary for the appellant to obtain a "certificate [*250] of occupancy" for the use of the property as a junk or storage yard in order to continue such use.  See Section I-C 2(b).  To obtain such a certificate, proof would be required of the non-conforming use on December 2nd, 1947, and of its non-abandonment for a period of as much as a year thereafter.  The appellant sought such a certificate and the Board of Appeals held a hearing on his application, as a result of which it found that the alleged non-conforming use was not established and accordingly on December 4th, 1953, denied the application.  The applicant then appealed to the Circuit Court for Anne Arundel County, and the action of the Board of Appeals was affirmed by the Court on March 11th, 1954.

   The other possible form of approval which might be obtained for the operation of a junk or salvage yard is a "special exception." Such an exception is not permissible under the terms of the Zoning Ordinance unless the property in question is zoned as "heavy commercial" or "industrial" and then is[***15] permissible only if the yard is "invisible from and at least three hundred (300) feet distant from any state or county highway." The final clause of Section IV-C-1 (d), paragraph (3), requires as an additional condition for the issuance of a special exception permit that, in the judgment of the Board of Appeals, the general welfare "will not be injured by proximity to populated areas or other circumstances." It is this last clause against which the appellant directs most of his attacks based upon constitutional grounds.

   The record of the Board of Appeals hearing which was introduced in evidence shows that about a year before Mr. Laque's unsuccessful effort to establish a non-conforming use he had made an unsuccessful effort to obtain from the Board of Appeals a "special exception" to use his property for the salvage of automobile parts.  There is nothing to indicate that he took any appeal from this adverse ruling of the Board.

   It was thus established that the appellant had neither a certificate of occupancy showing a non-conforming use nor a "special exception" permit to operate a junk or [*251] salvage yard. Hence his operations, if they amounted to the maintenance or operation[***16] of such a yard, were in violation of the ordinance and neither of the possible exceptions was available to him.  He testified in substance that he did not run a junk yard because his method of operation was merely to salvage and sell usable parts from old automobiles which remained only temporarily on his lot, and that when such parts had been sold he removed the automobile bodies to a junk yard. We think that this is too fine a distinction and that, on his own testimony, he was maintaining and operating a junk or salvage yard.

   [**897] The appellant's principal argument is that he should be permitted in this case to relitigate the question of whether or not he had established a non-conforming use of the property as a salvage or junk yard. As already pointed out, he selects July 1, 1952, as the decisive date; but because of the definition of a "lawful non-conforming use" we think that December 2, 1947, is the controlling date on this point.  He asserts that he has been deprived of a constitutional right, because he was not permitted to relitigate this question so fully as he wished to.  We do not agree.

   The Zoning Ordinance of July 1, 1952, clearly recognized and offered protection[***17] to any lawful non-conforming use in existence on that date, and provided for the protection of such uses as had existed on December 2, 1947 and had not thereafter been abandoned.  This Court has recognized that non-conforming uses are rights which are entitled to protection.  Amereihn v. Kotras, 194 Md. 591, 71 A. 2d 865; Higgins v. City of Baltimore, 206 Md. 89, 110 A. 2d 503. In neither of these cases did the provisions of the ordinance involved require any action on the part of the person claiming the use at a time material to the decision of the case.  The 1952 Anne Arundel County Ordinance, unlike its 1947 predecessor, required "certificates of occupancy" for the use of land for other than agricultural or residential uses (or uses accessory thereto).  It also makes provision for obtaining such certificates from administrative officials, [*252] and Section 614 of the Code of Public Local Laws of Anne Arundel County provided for judicial review of the action of the Board of Appeals.  Mr. Laque followed these procedures, and he appealed from the Board of Appeals to the Circuit Court where he was entitled to full hearing and to produce additional testimony.  He has had[***18] his day in court on his alleged constitutional rights, and the determination has been adverse to him. We know of no rule of law which requires that he be offered the right to relitigate the question as often as he pleases.  The point at issue is really not one of protecting a judgment from collateral attack; the question is simply whether or not he has been deprived of an opportunity to assert in a judicial proceeding a right which he claims and has thereby been denied due process of law.  We think that clearly he has had such an opportunity.  See Yakus v. U. S., 321 U.S. 414.

   The situation is simply that the appellant does not have a "certificate of occupancy" authorizing the use of the property as a junk yard. He has been afforded a full and fair opportunity to get one, including a judicial review of his application for it.  The absence of such a certificate bars him from one of the two defenses which he might have under the ordinance. It so happens that this defense is outside the scope of Section IV-C-1 (d); but if he had such a certificate it would be a defense against a charge based upon his operating a junk yard without a "special exception" permit from the Board, because [***19]no such permit would then be needed.

   This reduces him to the one other possible defense -- a "special exception" permit to operate a junk yard. It is perfectly clear that he does not have one. The ordinance offers him ample opportunity to get one by the same kind of procedures which were available to him in connection with his effort to establish a non-conforming use.  The evidence shows that he tried to get one from the Board and that his application was denied.  There is nothing to indicate that he took or attempted to take an appeal from that adverse decision. Every objection to Section IV-C-1 (d) or its application which he urges [*253]here was available to him in those proceedings.  The State urges that he is obligated to exhaust the administrative remedies available to him and thereafter to pursue the statutory method of appeal and judicial review which was available to him under the procedure provided by Article 66 B of the Code and the ordinance, and denies his right to make a collateral attack on the ordinance as a defense to a criminal prosecution.  In this contention it relies largely on Kahl v. Consolidated Gas Elec. Lt. & Power Co., 191 Md. 249, 60 A. 2d [***20] 754; Applestein v. Baltimore, 156 Md. 40, [**898] 143 A. 666; and Anne Arundel County v. Snyder, 186 Md. 342, 46 A. 2d 689. None of those cases was a criminal case and they are therefore not directly in point. However, where, as here, there was ample opportunity to present and litigate all of the contentions now presented, we think the same reasoning is applicable. See also Yakus v. U. S., supra.

   Even if this rule were not applicable, it would seem that in order to present an adequate defense to the charge of operating a junk yard without a "special exception" permit, the appellant would have to show at least that the challenged portion of the ordinance is invalid and that he is entitled to proceed without a permit thereunder.  He would promptly encounter two obstacles: first, the separability clause of the ordinance; and, second, the perfectly clear and explicit requirements that a junk yard must not be visible from a State or county highway and must be at least 300 feet distant from one.  The evidence seems to show rather clearly that the portion of the appellant's tract used for the purposes charged fronts on a public street and is 200 feet in depth.  The [***21]argument of vagueness which the appellant directs against the provision requiring consideration by the Board of "the general welfare" therefore need not be reached.  The appellant has made no argument against the validity of the three hundred foot requirement and has merely questioned whether "an attractive fence" which would cut off visibility would satisfy the ordinance. There is no evidence that there was one at the time of the alleged offenses.  We are not prepared to hold that [*254] on their face these explicit provisions are so arbitrary or unreasonable as to be void, and we do not find any deprivation of any constitutional right of the appellant by reason of the "special exception" permit requirements of the ordinance.

   The appellant urges several grounds for a reversal of the judgment.

   One is the admission of the record of the proceedings before the Board of Appeals on his application for a certificate of occupancy. While there may be some question as to the admissibility of the entire record, we think that the order or resolution based thereon was admissible to negative one possible defense to the charge and that the admission of the entire record is not shown to[***22] have been prejudicial to the appellant and his objection to its admission made at the trial appears to have been based on materiality rather than prejudice.  For the same reason that we think the resolution of the Board was admissible we think the decree of the Circuit Court affirming the Board's action was admissible.

   The appellant also complains that he was not allowed to testify in support of his claim that he had established a non-conforming use.  The record shows that he did testify somewhat extensively on this subject.  In addition, as what we have already said will indicate, it is not controlling in our view, whether the Board did or did not reach the correct conclusion on that subject; the important facts are that after a full hearing and after review of the Board's decision by the Circuit Court, he does not have a certificate of occupancy based upon an alleged non-conforming use and that neither the Board's action nor that of the Circuit Court in affirming the Board is before us for review in this case.

   The appellant also objected to being required to go to trial in the absence of certain witnesses who had not been summoned. No explanation was offered as to why they had[***23] not been summoned earlier, despite the fact that it seems perfectly clear that the defendant had notice that his case was to come up on that day.  Matters of continuance are ordinarily within the discretion of the [*255] trial judge and it has not been shown that he abused his discretion in this case.  Compare Plank v. Summers, 205 Md. 598, 109 A. 2d 914. It appears, though it is by no means clear, that the absent witnesses were to be interrogated about the alleged non-conforming use.  No amount of such testimony would have supplied the absence of the certificate of occupancy.

   We are of the opinion that the judgments should be affirmed.

   Judgments affirmed, with costs. 

NOWELL, Administrator, et al. v. LARRIMORE et al.; LARRIMOREv. COHEN (Two Appeals In One Record) 
No. 37, October Term, 1954
 
Court of Appeals of Maryland
 
205 Md. 613; 109 A.2d 747; 1954 Md. LEXIS 309

 December  14, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeals from the Circuit Court of  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  decree, deed, mortgage, executor, chancellor, administrator, decedent, lived, father-in-law, died, forever barred, decreed, deeded, aunt, executrix, transfer of property, constructive trust, statutory bar, deficiency judgment, required to pay, adequate care, gift, cross-examination, conveyance, conveyed, deceased, daughter, furnish, bed, reasonable to assume

COUNSEL: Linwood S. Clark, for appellants.

   Thomas J. Curley, with whom was George B. Woelfel, on the brief, for appellee, Nannie B. Larrimore.

   James C. Morton, Jr., with whom were Rouse and Morton, on the brief, for appellees, Joseph G. Cohen and Minnie Cohen.

JUDGES: Bbune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*616] [**748] Here are appeals from two decrees affecting two lots of land in Anne Arundel County.  The two cases were consolidated and heard together in open court before the chancellor.

   In the first case the appellants, Elmer Ellsworth Nowell, Administrator, D. B. N. C. T. A. of the Estate of James R. Larrimore, [***6] deceased, and James F. Larrimore, on April 1, 1952, filed their third amended bill of complaint against the appellees, Nannie B. Larrimore and Joseph G. Cohen and Minnie Cohen, his wife, praying that Lot No. 3 in a Subdivision of Larrimore's Point be impressed with a trust for the support of James R. Larrimore at a reasonable charge while a patient at the Homewood Convalescing Home, (the Home), operated by the aforesaid Joseph G. Cohen and Minnie Cohen, from November 15, 1950, to April 13, 1951, and for other and further relief.  After a hearing in open court before the chancellor, the bill of complaint was dismissed by decree. From that decree appellants appeal.  In the second case James F. Larrimore, appellant, filed a bill of complaint on February 14, 1953, against Joseph C. Cohen and Minnie Cohen, appellees, asking that the deed of November 29, 1950, to Lot No. 5 of the Subdivision of Larrimore's Point, from James R. Larrimore to them, while in the Home, be decreed to be in the nature of a mortgage to secure the reasonable cost of James R. Larrimore's support and care by the Cohens; that said claim for support be forever barred and nonenforceable; that the plaintiff as devisee[***7] be decree to have ownership of Lot No. 5; and for other and further relief.

   Previously, on December 11, 1952, the appellants here had filed an amended bill of complaint against Mr. and Mrs. Cohen wherein they sought to have the deed made by James R. Larrimore, hereinafter referred to as Mr. [*617] Larrimore, to the Cohens on November 29, 1950, stricken down on the ground that Mr. Larrimore was, at the time he executed said deed, incompetent to execute a valid deed or contract.  On [**749] January 23, 1953, a decree was filed dismissing the bill in that case, and no appeal was taken from that decree.

   The facts in the first case are in part as follows.  The deceased, Mr. Larrimore, owned and lived on a nine acre tract of land at Larrimore's Point on Glebe Creek in Anne Arundel County.  In May of 1934 this land was surveyed and sub-divided into six lots, the plat being recorded.  The home which he occupied was on Lot No. 3.  On June 7, 1934, he conveyed Lot No. 1 to his son, Edward W. Larrimore and Alma Larrimore, his wife; and Lots No. 2 and 6 to his son, Walter E. Larrimore and Nannie B. Larrimore, his wife.  Mr. Larrimore's wife died March 31, 1935.  Before that date Walter[***8] had erected a home on Lot No. 2. After his wife's death, Mr. Larrimore continued to live in his home on Lot No. 3, but took his meals at the home of his son, Walter, except when his daughter, Anna Marie Denzler, who lived in Delaware, came to visit him in the summers, and except for the two winters when Edward and his wife, Alma, lived with him.  The visits of Marie ceased about 1941.

   Mr. Larrimore, with his sons, William and Walter, and their wives, on January 28, 1946, went to the office of the late Arthur Trader, an attorney in Annapolis, and executed deeds of Lot No. 4 to William and his wife, Mabel, and Lot No. 3, Mr. Larrimore's home property, to Walter and his wife, Nannie.  On the same date he executed a will bequeathing to his daughter, Anna Marie Denzler, the sum of $10.00; devising to his son, James F. Larrimore, Lot No. 5; leaving any personal estate to be equally divided among his children; and naming his son, Walter, as executor. At the time of the conveyance of Lot No. 3, Mr. Larrimore's house was in very bad condition.  After Walter rebuilt it, he and his family moved in with his father and Walter rented his house.  Walter died on April 8, 1948, and his wife, [*618] [***9] Nannie, with her son, Walter Garrett Larrimore, his wife, their two small children, and Nannie's aunt, continued to live in Mr. Larrimore's home.  On April 1, 1952, the third amended bill of complaint as aforesaid was filed, Mr. Larrimore having died on April 13, 1951.  In the said bill it was alleged that on January 12, 1951, a letter was mailed by the State's Attorney of Anne Arundel County to the attorney for James F. Larrimore informing him that the Home, operated by Mr. and Mrs. Cohen, was pressing him to prosecute the children of Mr. Larrimore for failure to support their father and pay for his nursing and medicines which at that time amounted to $428.00.

   Mabel Larrimore, the wife of William, testified that she was in the office of Mr. Trader on January 28, 1946, when the deeds were signed.  She said the next week she and her husband went to see Walter and in the presence of Nannie, his wife, Walter told her and her husband that he knew they had been surprised, that his father had given him the home place in consideration of the fact that Walter and Nannie were going to repair it, that his father was going to live with him, and that they were going to take care of his father[***10] for the rest of his life.  William Larrimore testified that Walter and his wife said they had told Mr. Larrimore that, if he would give them the home place, they would fix it up, would take care of him, and make a home for him, as long as he lived. He further testified that Nannie said she had told her father-in-law that she loved him and the only reason she wanted the house was to move there and take care of him.  Edward Larrimore testified that at one time he asked his father why he deeded Lot No. 3 to Walter and his wife.  His father told him that Nannie and Walter would take care of him the balance of his life, and that his father wept and said he knew he had done the wrong thing.

   Nannie B. Larrimore, one of the defendants and appellees here, testified that Mr. Larrimore was very ill in 1944 with bronchial pneumonia and worked very [*619]little from that time on.  She took him to her home and kept him from the first of January, 1944, until the first of April that year, nursing him night and day, and from that time on he was not able to make enough money to support himself.  He never gave her any money because he had none.  He [**750]deeded the property to her and her[***11] husband in 1946.  He told Walter that he wanted him to have the home as he was no longer able to keep it up and pay the taxes.  They made no promises whatsoever.  Her husband had been waiting on his father for the past thirteen years, even washing for him. During that time Mr. Larrimore ate three meals a day at her home.  She said they intended to rebuild Mr. Larrimore's home and that he was to live with them but no agreement was made to take care of him.  She and her husband spent about $15,000.00 in repairing Mr. Larrimore's home in addition to the labor of her husband and son.  In 1944 the house leaked to such an extent that she was required to move Mr. Larrimore's bed from place to place to keep him dry.  At that time she had to furnish him with bed clothes.  There was no promise made that they would support and take care of him the rest of his life.  She said she did not make the statement testified to by Mabel, that she may have said that her father-in-law was to live with them but nothing was said about taking care of him.  At one stage of the cross-examination she admitted that she promised to live in the home with Mr. Larrimore and care for him, but denied that "it was for[***12] the rest of his life".  She further testified, when asked about the statement which William had made, that they intended to move to Mr. Larrimore's house and give him a home but that she was not able to take care of him.  He needed medical care which she could not give.  After the death of her husband in 1948, her son, who was attending law school and also working, and the son's wife who was also working, provided the money for the home.  In addition she received $75.00 a month rent for their former home.  In 1949 she became very ill, was confined to her bed, and had to take care of Mr. Larrimore [*620]and her two infant grandchildren.  Her aunt had to stay home from work to take care of her.  At that time, on the advice of Dr. Basil, she put her father-in-law, then about eighty-eight years of age, in the Home for the period of about one month.  She asked William to help with his expenses and William paid $42.00 for one week's care and said that was all he was going to pay unless the others would pay something.  Mr. Larrimore cried and said he thought it was proper for his other sons to do something for him, to pay his hospital bills, and he was sorry he had not given the entire[***13] property to her and her husband.  On November 15, 1950, the condition of her father-in-law became such that she could not go in his room and had to hire a woman to clean him.  She solicited the sons for help but received nothing.  On orders from Dr. Basil, she called an ambulance.  She had previously talked to Mrs. Cohen and told her that her father-in-law had no money but had a piece of property which he had offered to her and which she would not accept.  She asked Mrs. Cohen if she would take him under those conditions.  As a result of that conversation Mr. Larrimore was placed in the Cohen home.  He was at that time in a much worse condition than when previously placed there in 1949.  Mr. Larrimore remained in the Home about five months and died on April 13, 1951.

   Walter Garrett Larrimore, the son of Walter and Nannie, now a member of the Bar, testified that the house on Lot No. 3 was completely run down in 1946 when his father and mother acquired it.  They had to tear down the whole house except the chimney, a few floor joists on the second floor, and a little siding on one side.  The repairs cost over $15,000.00.  He said his grandfather had eaten with them since his grandmother[***14] died in 1935 except for the few summers when his Aunt Marie came down to the property and the two winters that his Uncle Edward and Aunt Alma had lived with him.  At the time of the hearing this house was mortgaged [*621] in the amount of $8,000.00.  There is no testimony as to the value of the house on Lot No. 3.

   Mrs. Newton B. Collinson, a disinterested witness and a former friend of Mr. Larrimore's wife, testified that she heard Mr. Larrimore say he had given the home to Walter and Nannie because Nannie would take care of him.

   It is true that we have held in a number of recent cases that while a transfer [**751] of property from a parent to a child is generally considered as a gift, this is not the case where by reason of circumstances and conditions the child is the dominant party.  Where the parol evidence establishes that such transfer was made under an agreement, the courts will hold that the transfer is subject to a constructive trust and will impress the property with a trust to the end that the agreement of the parties may be carried out so far as possible.  O'Connor v. Estevez, 182 Md. 541, 35 A. 2d 148; Grimes v. Grimes, 184 Md. 59, 40 A. 2d 58; Rice [***15]  v. Rice, 184 Md. 403, 41 A. 2d 371; Bass v. Smith, 189 Md. 461, 56 A. 2d 800; Brandenburg v. Harshman, 193 Md. 104, 65 A. 2d 906. Assuming, without deciding, that Walter and Nannie Larrimore promised at the time Lot No. 3 was conveyed to them, as Nannie admitted at one time in her cross-examination, to live in the home with Mr. Larrimore and care for him, we are of opinion that this agreement was carried out by Walter and Nannie.  The fact that Walter and Nannie gave Mr. Larrimore adequate care while living with them on Lot No. 3 is not disputed here.

   The testimony that Walter and Nannie agreed to care for Mr. Larrimore for the rest of his life and that such an obligation required them to pay the costs of his care in the Home is not convincing.  Although William and Mabel stated that Walter and Nannie agreed to care for Mr. Larrimore for the rest of his life, this is emphatically denied by Nannie.  Furthermore, when Nannie went to them at the time Mr. Larrimore was in the Home for about one month and asked them to help with [*622] his expenses there, William paid $42.00 of this expense and said nothing about the alleged agreement that Nannie should pay this.  If, at[***16] that time William and Mabel had thought she was under any such contractual obligation, it is reasonable to assume that something would have been said by them about such an obligation.  Furthermore, as pointed out by the chancellor, Walter was not an educated man and it is hardly reasonable to assume that he would have used the words "in consideration of", as testified to by Mabel.  The most persuasive reason for deciding that Walter and Nannie did not promise to care for Mr. Larrimore for the rest of his life and that such care included paying for his expenses while in the Home is the fact that Mr. Larrimore himself, while in the Home, conveyed to the Cohens his remaining lot in payment for his care there.  No one knew better than he the agreement which he had made with Walter and Nannie.  He was later determined, judicially, to be competent to execute the deed. If he thought that such an agreement existed, as alleged by the appellants, he would have expected that Nannie and her property be responsible for this, and would not have made the conveyance to the Cohens. Furthermore, as pointed out by the chancellor, it has been generally held that under an agreement to furnish care and[***17] support to an aged or infirm parent, the promisor is not required to pay money for that support, when such parent cannot be given adequate care in that home and it is necessary to send him elsewhere for treatment.  The duty consists only of giving the parent care and support in the family, unless it is otherwise agreed, 50 American Jurisprudence, page 876; Merchants National Bank v. Crist, 140 Iowa 308, 118 N. W. 394, 23 L. R. A. (N. S.) 526. It was said in La Rocque v. Martin, 344 Ill. 522, 176 N. E. 734: "* * * by the use of the words 'takes care of me till I die' he had in mind the ordinary care and attention that he had theretofore been receiving as a member of the household." Tibbetts v. Curtis, 116 Me. 336, 101 A. 1023. It was said in Brandenburg v. Harshman, supra: [*623] "After the death of the daughter, the granddaughter carried out the actual or implied arrangement to take care of the appellee, until such time as it became impossible for her to do it.  When it became impossible, then a new situation arose." We are therefore of opinion that the chancellor was correct in dismissing the bill of complaint in this first case.

   In the second case, although[***18] the chancellor in his opinion held that the conveyance on November 29, 1950, of Lot [**752] No. 5 from Mr. Larrimore to the Cohens should not be declared to be a mortgage, he provided in his decree that, if James F. Larrimore, to whom Lot No. 5 was devised in Mr. Larrimore's will, paid to the Cohens or into the registry of the court the sum of $1,391.59 with interest from April 13, 1951, and all taxes and costs, the said Cohens should convey to the said James F. Larrimore Lot No. 5 aforesaid free and clear of all claims of the said Cohens and that, if James F. Larrimore failed to make said payments within thirty days, the Cohens should hold said property free and clear of any claim of James F. Larrimore.  We are advised that James F. Larrimore, in order to protect his rights, has paid this amount into the court, not thereby waiving any right to dispute the decree and to appeal. The Cohens, as appellees, have not appealed from that decree. Therefore, they cannot here contest the lien placed by the decree on Lot No. 5.  Rossi v. Mewshaw, 195 Md. 323, 328, 329, 73 A. 2d 458; Victor Lynn Lines, Inc. v. State, 199 Md. 468, 478, 87 A. 2d 165. As was said in Harrison v. Robinette[***19] , 167 Md. 73, 173 A. 60, at page 83: "* * * a decree may not be reversed for the benefit of one who did not appeal therefrom, even though as to him it was both erroneous and injurious.  Frederick County v. Page, 163 Md. 619, 631, 164 A. 182; Gordon v. Miller, 14 Md. 204; Lanahan v. Latrobe, 7 Md. 268; 4 C. J. 697." Pratt v. Johnson, 6 Md. 397; Syfer v. Fidelity Trust Co., 184 Md. 391, 397, 41 A. 2d 393. We must therefore consider the property deeded to the Cohens as security for payment of the sum specified in the decree.

   [*624] Six days after the death of Mr. Larrimore, the Cohens filed in the Orphans' Court for Anne Arundel County their claim in the amount of $1,475.09 against Mr. Larrimore's estate for his care in their Home.  This claim was immediately rejected in whole by his administrator in writing and no suit was entered by the Cohens to collect.  Code, (1951), Article 93, Sections 114 and 115, provide that where such a claim is exhibited against an administrator or executor in any form and he shall refuse payment thereof in writing, "such claim shall be forever barred unless the creditor shall bring suit upon the same within nine months after[***20] such rejection." The appellant claims that by not entering suit within the nine month period nothing is owing to the Cohens on this claim and, therefore, he should be decreed to have ownership of Lot No. 5 with the right of disposition, and with an injunction against future assertion by the Cohens of said claim by action at law suit, in equity, or otherwise.

   It has been repeatedly held by this Court that Sections 114 and 115, supra, create a statutory bar as distinguished from a mere period of limitations which may be waived.  It extinguishes the right to sue, not merely the remedy. Maskell v. Hill, 189 Md. 327, 337, 55 A. 2d 842; Donnally v. Welfare Board, 200 Md. 534, 540, 541, 92 A. 2d 354. The purpose of these sections is to prevent a creditor with a controverted claim from unduly prolonging the settlement of the decedent's estate.  Davis v. Winter, 172 Md. 341, 348, 191 A. 902. The effect of these sections, as stated in Zollickoffer v. Seth, 44 Md. 359, is that "* * * not only is the executor exonerated, but he is required to pay out or distribute the money retained, and the creditor is forever barred all right of recovery against the assets of the estate[***21] , no matter in whose hands they are found." (Italics supplied).  This statement was repeated in the case of Baker v. Cooper, 166 Md. 1, 15, 16, 170 A. 556.

   Here, the effect of the decree of the chancellor was to hold that the lien on the lot was a mortgage to secure [*625] the payment of a debt.  We have been unable to locate any authority which holds that, if a decedent at the time of his death is a mortgagor, the mortgagee by filing proof of the indebtedness which the mortgage secures against the estate and not suing within the statutory period, is prevented from collecting from the security held under the mortgage. There are several cases which hold to the contrary.  In speaking of claims against a decedent's estate, it is said in 34 [**753] C. J. S. at page 742: "* * * the short statute of limitations does not operate against an action to foreclose a mortgage or other lien on property of decedent, where no deficiency judgment is sought or granted." Here, no deficiency judgment is sought against Mr. Larrimore's estate.  In Fox v. Bernard, 29 Nev. 127, 85 Pac. 351, it is said at page 352: "It is also urged that suit was not begun within the time required by the[***22] provisions of the probate act after the rejection of the claim by the executrix. Whether this is so is immaterial for although she as executrix is named as a party defendant, the allegations of the complaint and the decree may be considered as running against the property only.  No judgment for any deficiency after sale or otherwise against the estate is demanded or given by the decree, which is directed only against the premises, and plaintiff's rights to this extent would not be curtailed nor affected by failure to present a claim to the executrix, nor by her rejection of the claim filed, nor by his omission to sue within the time prescribed for commencing actions on rejected claims against estates of deceased persons, as is necessary when it is desired to reach the assets of the estate.  The case of Devereaux Mortgage Co. v. Huggins, 46 Idaho 74, 266 Pac. 421, involved an action to foreclose a mortgage on real estate and to recover judgment for any deficiency against the estate of the deceased, the mortgage claim having been filed in the estate and rejected.  Suit was not brought within the statutory period.  The court there decreed foreclosure and sale of the mortgaged property[***23] to satisfy the amount due the mortgagor, but denied any other or further relief.  [*626] See also Ware v. Weatherby's Ex'rs., N. J., 45 A. 914. We are of opinion that the lien upon Lot No. 5, as decreed by the chancellor, is not barred.

   The appellant further claims that he should not be compelled to pay appellees their full claim with interest and costs or lose Lot No. 5, devised to him, without at least a trial of the rejected and disputed claim on its merits in an appropriate proceeding.  Testimony was here offered that Mr. Larrimore with his own consent was placed in the Home and that he received care and treatment there.  Mrs. Cohen testified that Mr. Larrimore was charged $51.50 per week. There is no testimony here to show that this was not a fair charge for the services rendered, although Mrs. Cohen was questioned on cross-examination by appellant's attorney as to the reasonableness of the charge.  The decrees will be affirmed.

   Decree affirmed, with costs. 

MARTIN et ux. v. WEINBERG et al. 
No. 19, October Term, 1954
 
Court of Appeals of Maryland
 
205 Md. 519; 109 A.2d 576; 1954 Md. LEXIS 298

 December  8, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  deed, heirs, plat, grantee, parking lot, assigns, block, dwelling house, dwelling, resurvey, grantor, unrestricted, conveyed, neighborhood, zoning, bind, restrictions imposed, three-fourths, chancellor, conveyances, purchaser, parking, erected, corner, decree, build, erect, reasonable construction, construed together, general purpose

COUNSEL: W. Harvey Beardmore and [***6] Edwin H. Brownley, with whom was Albert J. Goodman on the brief, for the appellants.

   James C. Morton, Jr., with whom were Rouse & Morton on the brief, for the appellees.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*522] [**576] This appeal is from a decree permanently enjoining the appellants from using lots 27 and 28, Block O, Murray Hill, in the City of Annapolis, for a parking lot. The question turns on the validity and enforceability of certain restrictions in the deeds.

   In 1890, the owners of nine of the ten tracts into which a larger tract had been [**577] divided by the heirs of James Murray, subdivided these tracts into lots according to a plat known as "Melvin's plan of Murray Hill", which was placed on record in 1896.  In 1914, four exchange deeds, which further partitioned certain of the lots among some of the Murray heirs, were placed on record.  Each deed contained restrictions, of which the following are typical:

   "Upon these express conditions, nevertheless, that the said Sarah Murray Hartshorne, her heirs and assigns, shall not build[***7] or erect, or suffer to be built or erected, a building of any character whatever in those portions of Lots Number '22' in Block 'I', and Number '3', in Block 'K', lying between the Northeasterly line of Southgate [*523] Avenue and a building line parallel therewith and distant twenty-five (25) feet Northeasterly therefrom; * * * nor in those portions of Lots Numbers 19, 21, 35 and 37 in Block 'O' lying between the Southwesterly line of Steele Avenue and a building line parallel therewith and distant twenty (20) feet Southwesterly therefrom.

   "And Further, shall not build or erect or suffer to be built or erected, more than one dwelling house, with the necessary outbuildings incident thereto, on each of Lots Number 22, in Block 'I' * * *, Numbers 19, 21, 35 and 37 in Block 'O', all of which said dwelling houses shall be used for residence purposes only; and which said dwelling houses in each of Lots Number 22 in Block 'I', * * * shall cost not less than Three Thousand ($3,000.00) Dollars each and those on each of Lots Numbers * * * 19, 21, 35 and 37 in Block 'O', shall cost not less than two thousand ($2,000.00) each."

   It is conceded that not all of the lots conveyed were made[***8] subject to the restriction as to use for residence purposes, but it may be stated generally that the restriction applied to all lots fronting on Southgate and Steele Avenues, with the exception of lots 39, 41, 43, 45 and 47 in Block O, adjacent to the rear of certain business properties fronting on West Street, and three lots in Block K, in the same situation.  It is true that there were also a few lots in Block O not conveyed in the four deeds and hence unrestricted.

   It was shown in the testimony that a resurvey was made in 1932 and placed on record in 1938.  This was occasioned by the opening of a new diagonal street known as Fifth Street, and included a renumbering of the lots in the various blocks. Lots 27 and 28, Block O, fronting on Steele Avenue, now comprise all of lots 31, 33, 35 and 37 of the original plat, except for the portions now in the bed of Fifth Street and in the new lots across said street.  In addition, lot 27 comprises a small corner of lot 32, formerly fronting on Stewart Avenue, which was unrestricted, and a small corner of lot 39, which was likewise unrestricted. 

   [*524] This suit was originally instituted by the appellees against Robert Taylor and Clara[***9] E. Taylor, his wife, who acquired lots 27 and 28 from the Murray heirs. The deed of lot 28 to the Taylors in 1952 contained the provision "subject to restrictions of record pertaining to this development".  This sale was effected in 1938 by Mr. Lazenby, a real estate agent.  A letter to him from the Murray heirs stated that "lot 28 is made up of portions of lots 33, 35, 37 and 39, as shown on the original plat of Murray Hill," and the division of the proceeds was agreed upon.  He testified that he advised the purchasers the property was restricted to use for residence purposes only.  The appellants purchased lots 27 and 28 from the Taylors in 1953, while the present suit was pending.  There can be no doubt that they had actual knowledge of the claimed restriction.

   The appellants do not challenge the fact that the appellees are assignees from the Murray heirs of lots in the immediate vicinity, but contend that the restriction is ineffective because it does not bind the heirs and assigns of the grantors, although it does expressly bind the heirs and assigns of the grantees. Another clause in each deed recited that "The interest hereby conveyed by the said parties of the first part[***10] in the above described premises, being an undivided three-fourths (3/4) interest [**578] therein now vested in them, and the other undivided one-fourth (1/4) interest being now vested in said parties of the second part, the purpose of this deed is to vest in said parties of the second part the whole title to said described premises in severalty." Each grantee thus retained a one-fourth interest in the particular lots wherein the three-fourths interest was conveyed, and in turn conveyed his undivided interest in the other lots.  We think the deeds must be construed together. "Deeds made by tenants in common among themselves for the partition of land should be construed together as one instrument, and the general intent of all the deeds should govern." 4 Thompson, Real Property (perm. ed.) § 1963.  Before the conveyances the [*525] four heirs held all of the lots involved in common.  After the conveyances, each was the grantee of a three-fourths interest from the other heirs. We find from the deeds themselves, and the surrounding circumstances, clear evidence of an intention to bind all of the lots involved. Cf. Silberman v. Uhrlaub, 102 N. Y. S. 299, 116 App. Div. [***11] 869. The situation is unlike that where land is retained by a grantor without a covenant to bind his assigns. Here no purchaser from any of the parties could take title to any lot except by assignment from a grantee. In legal effect, we think the acceptance of mutual deeds subject to the conditions stated amounted to promises by the grantees, their heirs and assigns, to abide by the restrictions.  Levy v. Dundalk Co., 177 Md. 636, 646. Since the promises can be implied from the deeds and surrounding circumstances it is unnecessary to rely upon a uniform general scheme or plan of development.  Raney v. Tompkins, 197 Md. 98, 101, 103; Middleton Realty Co. v. Roland Park, 197 Md. 87, 94; Clem v. Valentine, 155 Md. 19, 28. But it may be noted that the fact that a few lots in the tract are unrestricted would not necessarily negative an intention to restrict the lots designated in accordance with a general plan, Schlicht v. Wengert, 178 Md. 629, 636, particularly where there is a rational basis for a distinction, or where other owners are not parties to the plan.  Cf. Kleis v. Katcef, 160 Md. 627, 634.

   The appellants contend that if the use of the lots was restricted[***12] under the original deeds, the filing of the resurvey plat, changing the numbers and dimensions of the lots in question, abolished the restrictions.  We find no merit in the contention.  It is true that it would be necessary to closely compare the two plats, even to "superimpose the resurvey over the original plat", as suggested, in order to determine the exact extent of the restricted areas.  When this is done, of course, it appears that small corners of the new lots are made up from unrestricted lots, but the Chancellor's decree took this into account.  Questions of locations and restrictions [*526] in deeds and plats are usually matters for expert determination, and it seems clear that the purchasers were put on notice by the references in the deeds and contracts of sale, and by actual notice.  We find no evidence of an intention to abandon the restrictions in the mere filing of the resurvey. When the appellants purchased their lots in 1953, there was a suit pending in which a decree pro confesso against their vendors had been entered upon the theory that the restrictions were in effect.  Nor do we find any merit in the contention that there was an acquiescence or waiver, [***13] based on a failure to enforce the restrictions against all others.  Cf. Trunck v. Hack's Point Com. Ass'n., 204 Md. 193, 196, and Schlicht v. Wengert, supra. It appears that a suit against the use of certain other restricted lots for parking purposes is now pending.  We think the Chancellor was likewise correct in finding that there was no such change in the character of the neighborhood as to render the restrictions unenforceable on the ground that they have outlived their usefulness.  There was abundant evidence to show that the neighborhood always was, and still is, a high-class residential one, aside from the commercial development along West Street.

   Finally, the appellants contend that the language of the restrictions does not, in terms, forbid use as a parking lot. The proposal is to lease the lots to the Great [**579] Atlantic & Pacific Tea Company for use as a parking lot by the employees and customers of its store on West Street.  The prohibition is against building or erecting "more than one dwelling house, with the necessary outbuildings incident thereto, * * * all of which said dwelling houses shall be used for residence purposes only * * *." Applying the[***14] rule of strict construction, it is argued that the restriction applies only in the event that a building is erected, and until that time it may be used for any purpose whatever.

   We have frequently stated and applied the rule of strict construction in favor of the unrestricted use of property.  Cf. Himmel v. Hendler, 161 Md. 181, Osborne [*527] v. Talbot, 197 Md. 105, and Trunck v. Hack's Point Com. Ass'n., supra. But this does not mean that language must be so narrowly construed as to defeat its general purpose. Literally, the words "shall not build or erect * * * more than one dwelling house" do not refer to the land itself.  But, obviously, a use of the land for "open-air" parking or other commercial use, virtually unknown at the time the restrictions were drafted in 1914, would defeat the general purpose to limit the use of the dwellings contemplated, to residence purposes only.  And it may well be that the improvements necessary to render the land suitable for such a use would constitute "building".  Cf. Jenney v. Hynes, 189 N. E. 102 (Mass.).

   There appears to be no Maryland case in point, and the authorities in other states are divided.  In Shaddock v. [***15]  Walters, 55 N. Y. S. 2d 635, it was held by a nisi prius court that a covenant similar to that in the instant case did not forbid the use of the land as a parking lot. Cf. Granger v. Boulls, 152 P. 2d 325 (Wash.) and Cooke v. Kinkead, 64 P. 2d 682 (Okl.) (a five to four decision).  On the other hand, in the case of Hoover v. Waggoman, 199 P. 2d 991 (N. M.), the opposite conclusion was reached.  See also Wilber v. Wisper & Wetsman Theatres, 3 N. W. 2d 33 (Mich.).  Cf. Mellitz v. Sunfield Co., 129 A. 228 (Conn.), Laughlin v. Wagner, 244 S. W. 475 (Tenn.), and Bachman v. Colpaert Realty, 194 N. E. 783 (Ind.).  We think these cases express the better view. The courts seem to have generally recognized that there is no public policy against a fair and reasonable construction, in the light of surrounding circumstances, of restrictions designed, in general, to accomplish the same beneficial purposes as zoning. It may be noted that in the instant case, the area is zoned residential, but a special exception was granted in regard to the lots in question.  This fact is not relevant to the question before us, except as it tends to support a conclusion that there[***16] has been no marked change in the general neighborhood. Contractual restrictions are neither abrogated [*528] nor enlarged by zoning restrictions.  Metzenbaum, Law of Zoning, p. 282.

   Under all of the circumstances of the case, we find no error in the Chancellor's ruling.

   Decree affirmed, with costs. 

GESSLER et al. v. STEVENS, Executor 
No. 17, October Term, 1954
 
Court of Appeals of Maryland
 
205 Md. 498; 109 A.2d 74; 1954 Md. LEXIS 296

 November  18, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Orphans' Court of  Anne Arundel  County; Owens and Fowler, JJ.

DISPOSITION: Order reversed and case remanded, the costs to be paid by William W. Stevens personally.

CORE TERMS:  probate, caveat, next of kin, notice, letters testamentary, revoke, probated, notice of intention, invalid, admitted to probate, letters of administration, disclose, misplaced, administratrix, preliminary notice, reasonable time, one year, defending, offering, purporting, appointed, notified, executor, swore, exhibited, conditions precedent, right of action, right to assume, properly filed, general relief

COUNSEL: O. Bowie Duckett, with whom was Z. Townsend Parks, Jr., on the brief, for the appellants.

   W. Leslie Prout and Marvin I. Anderson for the appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*501] [**75] This appeal comes here from an order of the Orphans' Court of Anne Arundel County refusing to revoke letters testamentary granted to William W. Stevens on the estate of Henry L. Langrehr, who died on September 13, 1952.

   On September 15, 1952, Mary A. Gessler, of Baltimore, through Z. Townsend Parks, Jr., her attorney, sent to the Register of Wills of Anne Arundel County a notice of her intention to caveat any paper purporting to be the will of Langrehr.  Mrs. Gessler, one of Langrehr's nieces, claimed that he was of unsound mind and had been under the domination and control of Stevens, in whose home he had been living.  On October 16 she applied to the Orphans' Court for letters of administration, [***7] and the Court granted letters to her on October 21.

   On October 24, 1952, Stevens presented to the Register of Wills an instrument purporting to be the will of Langrehr, and applied for letters testamentary on his estate.  The will was executed on November 3, 1949.  After making bequests to a Lutheran Church and a Lutheran Home and to Henry R. Langrehr Philips, Jake Langrehr, George Langrehr, and Myrtle Langrehr, the will left all the residue of the estate to Stevens and appointed him executor.

   Stevens, in his application for letters testamentary, swore that the addresses of Langrehr's heirs were "not known." On November 5, 1952, the Court, without giving any notice to Mr. Parks, or to Mrs. Gessler, the administratrix, or to any other relatives of the deceased, admitted [*502] the will to probate and granted letters testamentary to Stevens.

   On December 15, 1953, Mrs. Gessler, Margaret Vogel and Susan Busch, nieces of the deceased, and George Langrehr, nephew, filed a petition in the Orphans' Court alleging that the will was admitted to probate unlawfully and as a result of deception and fraud, and praying the Court (1) to revoke the letters testamentary, (2) to appoint an administrator[***8] pendente lite, and (3) to grant such other and further relief as the case may require.

   The petition of the four next of kin states their case substantially as follows: On September 15, 1952, Mrs. Gessler, through Mr. Parks, her attorney, sent to the Register of Wills of Anne Arundel County a notice of her intention to caveat any paper purporting to be Langrehr's will.  On October 16 the Orphans' Court granted her letters of administration, and she qualified as administratrix. On October 17 Mr. Parks wrote a letter to Stevens advising that Mrs. Gessler had been appointed administratrix, and urging a conference to discuss the settlement of the estate.  W. Leslie Prout, attorney, of Baltimore, replying for Stevens, asked Mr. Parks what information he wanted.  On October 29 the two attorneys conferred.  Mr. Parks informed Mr. Prout that he had sent a notice to the Register of Wills that Mrs. Gessler [**76] intended to caveat any will made by Langrehr, and asked Mr. Prout to advise him of any further developments.  On October 30 Mr. Prout wrote Mr. Parks that Stevens would apply to the Orphans' Court on November 11 for letters of administration pendente lite .  Mr. [***9] Parks replied that he would object to the grant of letters to Stevens.  On November 1 Mr. Prout wrote Mr. Parks that since November 11 would be a legal holiday, the application would be made on November 12.  Later in November Mr. Prout promised Mr. Parks that he would not ask for probate of the will at that time.  It was subsequently discovered that the will was probated on November 5.  Mr. Prout, however, states that he never made any such promise.

   [*503] On December 31, 1953, Stevens moved to dismiss the petition on the grounds (1) that no caveat had been filed to the will within one year from the date of its probate, and (2) that the petition to revoke the letters testamentary was not filed within thirty days after the probate.

   At the hearing on the motion to dismiss, Mr. Parks testified that he understood that Langrehr was a patient in the Pinel Clinic at Ellicott City at the time he executed the will in dispute.  He declared that he received a letter from Mr. Prout on November 8, 1952, advising that neither he nor Stevens would appear in the Orphans' Court on November 12; that he thereupon phoned Mr. Prout to make an appointment and received two postal cards, dated[***10] November 11 and 12, neither of which made any mention of the fact that the will had been probated; and that he was utterly amazed when he discovered subsequently that the will had been probated on November 5.

   Mrs. Clemence C. Burwell, Deputy Register of Wills, testified that Mrs. Gessler's notice of intention to caveat the will had been received in the office of the Register of Wills but had been overlooked.  She said that the cause of the oversight was that the notice had been placed in the general correspondence file, instead of in the file of the Langrehr estate.

   Stevens did not testify.  Mr. Prout testified that he accompanied Stevens to the Court House in Annapolis on October 24, 1952, and that Mrs. Burwell, the Deputy Register of Wills, informed them that no notice of intention to caveat Langrehr's will was on file, and in reliance upon her statement the Orphans' Court admitted the will to probate. Mr. Prout admitted that Mr. Parks had told him that he had sent to the Register of Wills a notice of intention to caveat, but he added that he told Mr. Parks that he did not see the notice when he was in the office of the Register of Wills on October 24.  Mr. Prout further [***11]testified that on November 5 Stevens phoned him from Annapolis that Mrs. Burwell informed him that no notice of intention to caveat had been filed, [*504] and hence the Court would grant him letters testamentary if he wanted them.  Mr. Prout explained that he thereupon advised Stevens to qualify.

   Mr. Prout was asked on cross-examination whether he had any duty to a brother lawyer to conduct his business in an ethical manner.  He answered: "No, I don't. Being a lawyer, my duty was to my client, Mr. Stevens."

   On March 9, 1954, the Court dismissed the petition, stating (1) that it was not filed within one year after the probate of the will, and (2) that there was no satisfactory explanation why some of the next of kin could not have discovered within a reasonable time that the will had been probated. The four next of kin appealed from the order of dismissal.

   It is conceded that the petition to revoke the letters testamentary was not filed within one year after the probate. The will was probated in November, 1952, and the petition was filed in December, 1953.  It is also true that under the law of Maryland no will or other testamentary paper is subject to caveat or other[***12] objection to its validity after the expiration of one year from its probate. Code 1951, art. 93, sec. 372.  But in the case before us a notice of intention to caveat the will was filed before the will was probated, and even before it was exhibited [**77] to the Register of Wills.  The Maryland Testamentary Act permits a person to file a caveat or statement of objections to a will before it is probated. The Act provides that if any person whatever shall enter a caveat to a will, either before or after it is exhibited to the Orphans' Court or Register of Wills, the said caveat shall be decided by the Court.  Code 1951, art. 93, sec. 376.  We have definitely held that when a caveat is filed to a will before it is admitted to probate, the Orphans' Court cannot validly probate the will until the caveat is disposed of.  Keene v. Corse , 80 Md. 20, 22-23, 30 A. 569; Gilbert v. Gaybrick, 195 Md. 297, 305, 73 A. 2d 482.

   In this State it is a common practice to file with the Register of Wills an informal notice of intention to caveat a will before it is admitted to probate in order to serve [*505] as a preliminary step to a formal petition.  The [***13]purpose of such a preliminary notice is to prevent the probate of a will pending the filing of a formal caveat petition.  Of course, under ordinary circumstances the preliminary notice must be seasonably followed by a caveat petition.  The law is settled that where a caveat is filed before the probate of a will, the counsel fees and costs incurred in defending the will cannot be paid out of the estate.  Tilghman v. France, 99 Md. 611, 616, 59 A. 277; Decker v. Fahrenholtz, 107 Md. 515, 518, 68 A. 1048.

   As we have seen, the notice of intention to caveat the will in this case was misplaced in the office of the Register of Wills and was completely lost and forgotten for over a year.  This mistake was made through no fault of the next of kin or their attorney, and should not be allowed to deprive the next of kin of their right of action and their day in court.

   The probate of the will was invalid for the further reason that no notice of the probate of the will was given to any of the next of kin, and none of the next of kin was present at or before the time of the probate. The statute provides that in the event that none of the next of kin attend at the offering [***14]of the will for probate, and no notice appears to have been given, the Court may either (1) direct summons to the next of kin, or some one or more of them, to appear to show cause why the will should not be probated, or (2) direct such notice to be given in the newspapers or otherwise as the Court may think proper.  Then, if no objection is made or no caveat entered, the Court may take the probate. On the other hand, if objection is made, the Court shall determine according to the testimony produced on both sides.  Code 1951, art. 93, sec. 375.

   This statute is mandatory.  It prescribes the conditions precedent which must be fulfilled before a will can be admitted to probate. If the Court admits a will to probate without complying with the statutory requirements, the probate is invalid. Travers v. Lavender, 197 Md. 652, 81 A. 2d 44; Watkins v. Barnes, 203 Md. 518, 102 [*506] A. 2d 295, 297. Of course, if the probate is invalid, it follows that the grant of letters testamentary is likewise invalid.

   We are mindful of the established principle that when a party attacks the probate of a will on the ground that no notice had been given to the next of kin, as required[***15] by the statute, he must file his petition within a reasonable time after acquiring knowledge of that fact.  The Court of Appeals has adopted the rule that a petition to revoke the probate of a will should be filed within 30 days after the petitioner has received knowledge of the probate or such facts as would put him on inquiry that would disclose such probate. Likewise, a petition to revoke letters of administration or letters testamentary should be filed within 30 days after the petitioner has received knowledge of the grant of letters or such facts as would put him on inquiry that would disclose that letters had been granted.  Watkins v. Barnes, 203 Md. 518, 525, 102 A. 2d 295.

   We cannot find merit, however, in the belief of the Court below that since [**78]the Deputy Register of Wills had notified the legatees of the amounts of their legacies, they were put on inquiry that would disclose that the will had been probated and that letters testamentary had been granted.  It is important to keep in mind that the next of kin in this case were relying upon Mr. Parks, their attorney; that he had filed a notice of intention to caveat; and that his notice was misplaced in[***16] the office of the Register of Wills.  Mr. Parks swore that he did not inquire about the Langrehr estate in the office of the Register of Wills between November, 1952, and December, 1953, because he felt certain that he was fully protected by the notice which he had filed.  Mr. Parks had the right to assume that the notice was properly filed by the Register of Wills and that no will would be probated without giving him a right to be heard, especially since Mrs. Gessler had never been notified that her letters of administration had been revoked.  It is also significant that Mr. Parks swore at the trial of the case (1) that [*507] Mr. Prout told him that Langrehr, during his lifetime, had given Stevens "some $25,000 or $30,000, which was everything he owned, so that there was no estate"; and (2) that Mrs. Gessler had not taken any action as administratrix during the period of one year because she had no assets in her hands and Mr. Prout had declared that there were no assets in the estate.  Mr. Prout, however, denied that he gave Mr. Parks any estimate of the amount of the estate.

   In view of the unusual circumstances in this case, we are convinced that the Court below erred in[***17] dismissing the petition of the next of kin. We will therefore reverse the order appealed from and remand the case with instructions to the Court not only to revoke the letters testamentary, but also to revoke the probate of the will under the prayer for general relief.

   Order reversed and case remanded, the costs to be paid by William W. Stevens personally. 

NUTWELL v. BOARD OF SUPERVISORS OF ELECTIONS OF ANNE ARUNDELCOUNTY 
No. 60, October Term, 1954 (Adv.)
 
Court of Appeals of Maryland
 
205 Md. 338; 108 A.2d 149; 1954 Md. LEXIS 281

 August  25, 1954, Decided  
 October  7, 1954, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Affirmed.

CORE TERMS:  candidate, election, tie vote, primary election, nominee, vacancy, elected, nomination, newly, general election, election laws, designated, demurrer, administrative construction, central committee, election district, contested, run-off, decree, designating, affirming, designate, qualify, ballot, resides, board of supervisors, respective parties, strong presumption, governing bodies, words used

COUNSEL: Thomas J. Curley, with whom were Robert S. Heise and John B. Wright on the brief, for the appellant.

   The Court declined to hear argument for the appellee.

   Louis M. Strauss, on the brief, for the appellee.

JUDGES: Brune, C. J., and Delaplaine, Collins and Hammond, JJ.  Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*340] [**149] This is an appeal from an order and decree [***4]sustaining a demurrer and dismissing appellant's bill of complaint.

   The facts of the case substantially follow.  A primary election was held in Anne Arundel County on June 28, 1954.  Among other contests in that primary election was that for the Democratic nomination for County Commissioner from the Seventh Election District of Anne Arundel County.  Three candidates filed for said nomination, namely: George M. Nutwell, Paulina W. Remey, and John W. Parks. The official tabulation of the results of the primary election for said office, as recorded by the Board of Supervisors of Election of Anne Arundel County, showed that George M. Nutwell and Paulina W. Remey received the highest vote, 254 votes for each, being a tie vote. At said primary election seven new members were elected to the Democratic State Central Committee of Anne Arundel County.  After said election, four of these newly elected members voted for and designated Paulina W. Remey to be the Democratic nominee for County Commissioner from the Seventh Election District of Anne Arundel County at the general election to be held on November 2, 1954.  As a result, the State Central Committee of Anne Arundel County has notified[***5] and requested the Board of Supervisors of Elections to list Paulina W. Remey as the Democratic nominee.

   On July 13, 1954, George M. Nutwell filed a petition for an injunction in which he alleged substantially the [*341] facts hereinbefore recited; that the Democratic State Central Committee had arbitrarily designated [**150] Paulina W. Remey to be the Democratic nominee for the contested office; and that the action of said Democratic State Central Committee was invalid.  He asked that a writ of injunction be issued enjoining the Board of Supervisors of Elections of Anne Arundel County from certifying said Paulina W. Remey as Democratic candidate for said contested office and for other and further relief. A demurrer was filed to that petition.  The chancellor by order and decree sustained the demurrer and dismissed the bill of complaint with costs and appellant appeals.

   The appellant contends that such a tie vote does not create a vacancy and that a special run-off election should be held between the two candidates aforesaid.  He relies on State ex rel. Hopper v. Board of Election Commissioners , 196 Ind. 472, 149 N. E. 69, and Brower v. Gray, et al., 5 N. J. Super. [***6]145, 68 A. 2d 553. These cases are not helpful on the question here presented.  He also relies on the Acts of 1953, Chapter 737, Sec. 1, 234 (c), which provides: "At the primary elections held in Anne Arundel County at which candidates are to be selected for the positions of County Commissioners, the voters of each of the eight districts of said county shall determine for themselves who shall be their candidate to be voted for at the general election, and therefore, the names of the persons who file their names for the position of County Commissioner, in accordance with the General Primary Election Law, shall be placed by the Supervisor of Elections in said County, only upon the ballot in the district where the candidate resides, and the candidate who receives the greatest number of votes in the district where he resides at the primary election, shall be certified to by the Supervisors of Elections as the nominee of the political party to which he belongs, and the name of said nominee shall be placed on the official ballot to be used in the general election." The primary election held on June 28, 1954, was so conducted.  [*342] There is no provision in this Act that in case of[***7] a tie vote there must be another special run-off election.

   Where there is a tie vote in the election of two candidates, the selection of one of them by designated persons is not unknown to the law in this State.  By Article 5, Section 2, of the Constitution of Maryland, in case of a tie vote between two or more persons for the office of Attorney General, it is the duty of the Governor to designate one of said persons to qualify as Attorney General. By Article 5, Section 8, of the Constitution of Maryland, in case of a tie vote between two persons running for the office of State's Attorney, the Judges of the Criminal Court, having jurisdiction, are to designate one of said persons to qualify as State's Attorney.  Code, (1951), Article 33, (Elections), Section 64, provides in part: "Any vacancy which may exist in respect to any office, delegates to convention, or position named in this sub-title occurring after the returns have been canvassed and finally announced or which may exist by reason of there being no candidate for the same in any such primary election or otherwise, shall be filled as the rules and regulations of the governing bodies for the respective parties in the counties, [***8] city or State may now or shall hereafter provide." In Usilton v. Bramble, 117 Md. 10, there were two candidates, James Bramble and John P. Nicholson, for the Democratic nomination for the office of Judge of the Orphans' Court for Kent County.  At the primary election held on August 29, 1911, these two candidates received an equal number of votes.  The newly elected State Central Committee of the Democratic party of Kent County designated and appointed Mr. Bramble as the nominee for that office. In that case the appellants, the Supervisors of Elections of Kent County, among other things, contended that no vacancy existed by reason of the tie vote. This Court, in affirming the trial court and the action of the newly elected State Central Committee in designating Mr. Bramble as the nominee, there quoted part of Chapter 741, Section 160K, of the Acts of 1910, which is identical [*343] with the part of Article 33, Section 64, supra, hereinbefore quoted, and there said: "That provision is undoubtedly broad enough to include this case, as when there is a tie between [**151] two candidates at the primaries there is a vacancy within its meaning, as no one is selected as the nominee[***9] for such office or place, and the expression 'or otherwise' would seem to leave but little room for discussion.  * * * We are of opinion, therefore, that the newly elected members constituted the State Central Committee on September 8th, 1911, and that their action in then designating James Bramble as the nominee was valid, * * *." See No. 27, Official Opinions of Attorney General of Maryland, 162; Rawlings v. Russell, 165 Md. 261, 267, 167 A. 186.

   The appellant admits that the case of Usilton v. Bramble, supra, is directly in point and cannot be distinguished on the question now before this Court.  He urges, however, that we reverse that opinion.  If any change is to be made in the Maryland election laws, such change cannot be made by this Court, but only by the Legislature.  The above quoted part of Article 33, Section 64, supra, has been in the election laws of this State since its first enactment in 1910.  This Court, in Usilton v. Bramble, supra, decided on November 22, 1911, that the words "or otherwise" applied to a tie vote and that a vacancy was thereby created.  The Legislature has amended the election laws many times since that decision but has not changed[***10] the language above quoted.  Where the Legislature has acquiesced in the judicial or administrative construction of a statute, there is a strong presumption that the intention of the Legislature and the words used by it have been correctly interpreted, and such an interpretation "ought not to be disregarded but upon the most imperious grounds".  Hess v. Westminster Savings Bank, 134 Md. 125, 132, 106 A. 263; Wells v. Price, 183 Md. 443, 456, 37 A. 2d 888; Dept. of Tidewater Fisheries, et al. v. Sollers, et al., 201 Md. 603, 615, 95 A. 2d 306, and cases there cited.  The validity of the nomination of County Commissioners by districts was [*344] not raised in this case.  Buckler v. Bowen, 198 Md. 357, 373. For these reasons we passed a per curiam order on August 25, 1954, affirming the order and decree, with costs. 

KLEIN et ux. v. DOVE et al. 
No. 157, October Term, 1953
 
Court of Appeals of Maryland
 
205 Md. 285; 107 A.2d 82; 1954 Md. LEXIS 277

 August  5, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Cricuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree Affirmed, with costs.

CORE TERMS:  right of way, lake, plat, street, water, pier, waterfront, beach, abandonment, interior, ten-foot, bathing, predecessor, decree, strip, deed, boating, record title, right to use, holder, dedication, recorded, conveyed, occupant, adverse possession, main road, interfering, reservation, purchaser, estoppel

COUNSEL: Submitted on brief by Rouse & Morton for the appellants.

   Wilbur R. Dulin for the appellees.

JUDGES: Brune, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*287] [**83] This case presents a controversy between lot owners in a waterfront development.  The plaintiffs-appellees are the owners of several interior lots; the defendants-appellants [*288] own a lot which lies between a road to which the plaintiffs have access and the so-called "lake area" of the development, which fronts on the river, to which they desire [***6]access for recreational purposes -- boating, fishing and bathing. On a duly recorded plat of the development a ten-foot road or right of way is shown along one side of the defendants' lot.  This right of way was obstructed by the defendants and had been obstructed by them or by previous [**84] owners for some years before the institution of this suit.

   The trial court held the plaintiffs entitled, in common with others, to use the lake area for the purposes above stated and to an unobstructed right of way over the strip between the defendants' lot and an adjoining lot and granted an injunction restraining the defendants from interfering with the plaintiffs' use of the lake area, requiring the defendants to remove obstructions from the right of way and restraining them from interfering with the plaintiffs' right of way. As an alternative to the above requirements with regard to the right of way, the decree permitted the defendants, within a limited time, to substitute another equivalent right of way over a part of their land on the other side of their lot.  The defendants appeal from that decree.

   The development is about 50 acres in area and occupies a peninsula between South[***7] River and Little Aberdeen Creek, in Anne Arundel County.  About half of the lots have direct water frontage, a few, including the defendants' lot, occupy an intermediate position fronting on the so-called "lake area" and the remainder, including the plaintiffs' lot, are interior lots.  Without using someone else's property, access to the water can be had from the interior lots only at either of two piers -- one on the east, the other on the west, side of the peninsula -- or by the right of way between one of the waterfront lots and the defendants' lot, which abuts on the lake area, and thence across the lake area to the river.

   The plat of the area was made by a surveyor in 1927 and was recorded among the land records of the county [*289] in April, 1928.  At that time the property stood in the name of one Gertrude L. Reed.  The opinion of the Chancellor indicates that she was not the real owner, but that "Wild Rose Shores," as the development is called, belonged to Waggaman & Brawner, Inc., real estate brokers and developers, of Washington, D. C., whose name appears on the plat as sales agent.  The plat shows the location of the various projected lots, of streets and roads, of[***8] three piers, and of the lake and lake area.  Among the roads or ways shown on the plat is the ten-foot right of way here in controversy.

   The plat bears this legend:

   "The Streets and Roads laid out on this Plat of 'Wild Rose Shores' are not dedicated to the Public or to the Public Use, but the ownership and control thereof are specifically reserved by the owner, Gertrude L. Reed, her heirs and assigns, for the exclusive and mutual use and benefit of the owners of the lots abutting on said Streets and Roads.  Subject, however, to the further condition that the Roadway from Line 'A' running in a southwest and southerly direction to the shore of South River, together with the Pier or Dock (all as shown on said Plat) are not dedicated to the Public or to the Public use, or to any lot owner or owners, but are reserved exclusively by and to the said owner, Gertrude L. Reed, her heirs and assigns, for such use or uses as she or they may subsequently determine."

   As the Chancellor's opinion shows, shortly after the recording of the plat, Gertrude L. Reed conveyed the property, or such part of it as remained unsold, to Waggaman & Brawner, Inc., and that in 1931 the latter (apparently[***9] in pursuance of the reservation stated in the legend) conveyed the road at the southern end of the development south of Line A and one of the lots adjacent thereto and the exclusive right to use the pier at the end of that road, to a person not involved in [*290] this suit.  As the opinion further indicates, after conveying certain other lots Waggaman & Brawner, Inc. conveyed all of the remaining lots and the streets, roads, docks and piers to one Bivins, who, in turn, conveyed the same to one Howar, and that he conveyed them in October, 1938 to one Dora C. Hickey.  The plaintiffs all claim under her grantees.  Dora C. Hickey has not been made a party to this case.

   [**85] The defendants acquired their lot, No. 32, from one Thomas P. Morgan, Jr. by a deed dated October 23, 1946.  Morgan acquired it, according to a recital in his deed to the defendants, by a deed dated June 4, 1931.  One witness testified that he had helped to build Mr. Morgan's house on lot 32 in 1927, had worked for him for some years thereafter and in 1928 had helped to build the fence which fences in the right of way shown on the plat along the east side of lot 32 as if it were a part of that lot.  There[***10] is no explanation of the discrepancy in the dates of acquisition of the property and of building the house.  There was also testimony to the effect that a prior owner of the development had orally agreed to shift the ten-foot right of way from the east to the west side of lot 32, and that a fence was built cuttiing off a ten-foot strip along the west side of lot 32 from the rest of the lot. This strip was not, however, open for use by the owners of interior lots; and at the trial the defendants were unwilling to agree to the substitute right of way being used by the plaintiffs.

   None of the deeds in the defendants' chain of title purported to cover the right of way along the east side of lot 32.  The appellants, in their brief in this Court, expressly state that they do not claim a good title by adverse possession. They did assert such a claim at the trial.

   The primary question in the case is whether or not, as against the defendants, the plaintiffs have the right of access to the water by way of the lake area, which [*291] for purposes of clarifying the issue might be better described as the boating and bathing area.

   It seems clear that the plaintiffs bought their lots in[***11] reliance upon the recorded plat of "Wild Rose Shores." The appellants make a point of the absence of any designation of the lake area as a "community" area.  The plat is rather scantily marked.  What are evidently streets, roads or ways are not designated as such.  An examination of the plat shows that they could not sensibly be regarded as anything else, and some of the wording in the "Notes" endorsed on the plat shows that this is what they are or are meant to be.  Thus, the description of the garage area (for which there would be no reasonable use without roads) refers to a strip marked simply "20'" as "the 20' Road." Likewise, the reservation against dedication to the public speaks of the "streets and roads laid out on this Plat," and the more comprehensive reservation at the end of that note speaks of the "roadway" at the southern end of the tract.  This same reservation also speaks of the dock or pier at the end of the roadway and denies dedication to the public or to the public use or to any lot owner or owners.  Other streets and roads are stated not to be dedicated to the public or to the public use but to be reserved by the owner to the use of herself, her heirs and assigns[***12] "and to the mutual use and benefit of the owners abutting on said streets and roads." What are evidently piers are not designated as such.

   Regardless of the absence of any such legend as "community beach" on the lake area, there is no readily perceptible reason for the ten-foot right of way between what appears to be the main road of the development and the lake area except to give the owners or occupants of interior lots on this waterfront development access to boating, bathing, swimming and fishing.  There is a possibility that this right of way was also intended to give like access to the owners and occupants of waterfront lots having no satisfactory boating and bathing facilities on their own premises; but no question of [*292] their possible rights is now presented, and no opinion is expressed thereon.

   The situation is clearly and succintly stated by Judge Clark in his opinion in the trial court: "That the purchasers of the lots in this subdivision thought they were buying not only the right to use the roads and paths laid down on said plat, but, as well, the right to use the piers on the east and west sides thereof, and the Lake area, is, I think, certain.  Everyone connected[***13] [**86] with the development contemplated them having those rights.  If a purchaser of a lot in a waterfront development did not expect to get the right to use the water, few would purchase lots therein.  After all is said and done, a waterfront development cannot be a waterfront development without a waterfront. It is true that the areas in question are not marked 'community property', or anything like that, but I do not understand that to be absolutely necessary.  (18 Corpus Juris, p. 65; 26 Corpus Juris Secondum, p. 83.) If the intention otherwise appears, that is all that is necessary.  Here, Mr. Carr did not even designate the roads and paths as roads and paths, but we all know that they are roads and paths.  While he did not designate the Lake area and the piers as 'community property', we all know they must have been intended for the use of all lot owners reasonably needing the same for access to the water."

   Such considerations are properly to be taken into acccount.  Baker v. Frick, 45 Md. 337; Pitts v. Baltimore, 73 Md. 326, 21 A. 52. See also Tiffany, Real Property, (3rd Ed.), Vol. 3, Section 800.

   Cases such as Hawley v. Baltimore, 33 Md. 270, holding[***14] that the grant to a purchaser of the right to use the streets shown on a plat filed by a vendor gives the right to the purchaser to use only the street upon which his land abuts and such other street or streets shown on the plat and owned by the vendor as may be necessary to reach a public street, have no application here. Nor are cases dealing with the dedication of parks controlling, [*293] such as Stover v. Steffey, 115 Md. 524, 81 A. 33, or Canton Co. v. Baltimore, 106 Md. 69, 66 A. 679, 67 A. 274. North Beach v. North Chesapeake Beach Land & Imp. Co., 172 Md. 101, 191 A. 71, was concerned chiefly with the effect, as between the owner of land and a municipality of the dedication of certain streets next to a beach. There was found to be no dedication of the beach which lay between the limits of the street as described and the edge of the waters of the bay which was roughly parallel to these streets and hence the municipality was held not to be entitled to build jetties on the beach.

   The appellants contended here, as below, that the appellees have some access to the water via the piers on either side of the development and are entitled to no more.  The evidence[***15] shows that these are not satisfactory places as bathing beaches. Even if they were, in view of the fact that the ways leading to them are ten feet wide and the piers, as shown by the plat, seem to be of the same width, the comment of the Supreme Judicial Court of Massachusetts in Anderson v. De Vries, 326 Mass. 127, 93 N. E. 2d 251, is pertinent, though perhaps conservative as applied to this case: "A space on the beach no wider than the way would hardly furnish a place adequate for the use and enjoyment of a large number of lot owners and their families and guests." To this should be added this apt comment in the opinion of the trial court which follows the above quotation: "It would be little comfort to a man to tell him that he might bathe from a 10-foot pier, but that if he puts his foot on the beach outside of said 10-foot strip, he would be a trespasser."

   In this situation the reasoning in the case of Williams Realty Co. v. Robey, 175 Md. 532, 2 A. 2d 683, seems conclusive.  As was there said:

   "The relation of lots in a water front settlement to the water differs from that of abutting lots to a city square.  There is naturally a greater dependence, if, indeed, we should[***16] not say that access to the water is [*294] an essential, for in that access lies the purpose of the settlement and the purchase of lots in it.  As Williams, testifying for the defendant, agreed, facilities for access to the water constituted the chief selling point. Therefore the case is concerned with a possible estoppel or implied covenant with relation to an incident almost, if not altogether, of importance equal to that of a bordering street. And when a buyer is persuaded, as in this case, by the assurances [**87] of restricted facilities in a community beach lying immediately across his front road or street, the advantages appear with sufficient clearness and certainty to have been sold to him as an incident, and in a court of equity repudiation must be prevented by injunction."

   See also Bacon v. Onset Bay Grove Ass'n, 241 Mass. 417, 136 N. E. 813; Carroll v. Hinchley, 316 Mass. 724, 56 N. E. 2d 608; and an annotation in 7 A. L. R. 2d 607.

   We also agree with the trial court that the actions of the appellants indicate that they have construed a deed to a lot in Wild Rose Shores, not fronting directly on the water, together with the recorded plat, as giving [***17]a right of access to the water at the lake area.  The appellants' own lot is not a waterfront lot; it fronts on the lake area but not on the river, yet they use, and quite evidently consider themselves as entitled to use, the facilities of the lake area for boating, bathing and like purposes, which induce the purchase of lots in a waterfront development.  This practical construction is persuasive against their denial of like rights to the plaintiffs.

   The appellants seek to justify their exclusion of the plaintiffs from the lake area and its bathing beach in this way.  First they say that a former owner of the development gave their predecessor in title a license to block off the way shown on the plat as a ten-foot strip between lot 31 and their lot, No. 32, and that their predecessor did so.  Though they have now renounced any claim of title to the strip through adverse possession, [*295] they next assert here, as they did below, that the right of way was abandoned.

   A license to block off a way at one point in return for the establishment nearby of an equivalent way over land of the licensee cannot properly be considered an abandonment. Such an exchange would result in a rather[***18] slight change of location of the right of way, but would not be an abandonment of it.  Still less could it fairly be regarded as an abandonment when the licensee failed to discharge his obligation to furnish the equivalent.  Ordinary principles of the law of contracts would permit either rescission or a suit for specific performance.

   Mere non-user of a right of way is not necessarily an abandonment of it. Lichtenberg v. Sachs, 200 Md. 145, 156, 88 A. 2d 450. The burden of proof of abandonment is on those who assert it -- in this case, the defendants.  Sachs & Sons v. Ward, 182 Md. 385, 35 A. 2d 161.
 
   There is another difficulty with the appellants' contentions.  Their possession of the right of way between lots 31 and 32 dated back only about seven years before the institution of this suit.  To make out a sufficient period to extinguish the easement by adverse possession, they would have to tack their possession to that of the previous owner of lot 32 and occupant of the strip. This they cannot do.  Sachs & Sons v. Ward, supra.

   That case is also fatal to any contentions based upon the absence of protests by the plaintiffs or their predecessors about the blocking of[***19] the right of way. The appellants are charged with notice from the record that the bed of the right of way was never owned by their predecessor, and they took possession of it with knowledge that it did not pass to them under their deed. It was said in the Sachs & Sons case, which involved a structure in an alley: "Nor does the absence of any earlier complaint or protest by the appellee, as to the existence of the now disputed structure, render applicable here the principle of estoppel for, as pointed out by this court in other cases, it is well settled that mere silence [*296] as to rights of record does not create an estoppel." See also Oberheim v. Reeside, 116 Md. 265, 81 A. 590.

   The remaining contention of the defendants, which was raised by a demurrer which was overruled, is an alleged defect of parties, since the record holder of title to the beds of the streets and ways and to the lake area is not joined. The insubstantial [**88] character of such interest is, we think, apparent. The relief sought was against the defendants, and we believe that an effective decree can be, and was, entered without the joinder of the holder of that record title. Construing[***20] the decree, as we do, in accordance with the objectives stated in the bill of complaint, as determining rights and obligations only as between the plaintiffs and the defendants, and not as determinative of or as impairing any rights of the record title holder, we regard that person as only a formal or nominal party, and hence the record title holder need not have been joined as a party.  Miller, Equity Procedure, Section 25.

   Decree Affirmed, with costs. 

MAYOR AND ALDERMEN OF ANNAPOLIS et al. v. ARUNDELAND, INC. 
No. 179, October Term, 1953
 
Court of Appeals of Maryland
 
205 Md. 170; 106 A.2d 493; 1954 Md. LEXIS 270

 June  25, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  government property, ordinance, metes, apartment, water, subject to taxation, leased, annexation, sewerage, lease, decree, binding, built, referendum, inclusion, enlarged, deduce, paramount, municipal government, leasehold interest, subsequent statute, operating expenses, election district, express exclusion, kind of property, quoted language, property owned, land owned, municipal, precautionary

COUNSEL: John B. Wright and H. Warren Buckler, [***4]  Jr., with whom were Niles, Barton, Yost and Dankmeyer on the brief, for the appellants.

   Richard H. Lerch, with whom were Wilbur R. Dulin and Wyatt & Jones on the brief, for the appellees.

JUDGES: Brune, C. J., and Collins, Henderson and Hammond, JJ.  Brune, C. J., delivered the opinion of the Court.

OPINIONBY: BRUNE

OPINION: [*172] [**494] This is an appeal by the City of Annapolis from a decree of the Circuit Court for Anne Arundel County enjoining the City and its Collector and Treasurer from collecting taxes for the years 1951 and 1952 levied by the City against the leasehold interest of the appellee in certain apartment houses built on land owned by the United States, which are leased to the appellee under a long term lease. The right of the State and its appropriate subdivisions to tax the appellee's interest in these apartment houses is provided for under U.S.C.A., Title 34, Section 522 (e), and is not now questioned by the appellee.  Meade Heights, Inc. v. State Tax Comm., 202 Md. 20, 95 A. 2d 280.

   The controversy in this case centers on whether or not the government property on which these buildings stand is within the City of Annapolis.  This question[***5] arises from the fact that the land is undoubtedly government property, from the language which now defines the boundaries of the City and from a subsequent statute. The City boundaries are thus described:

   "The boundaries of the City of Annapolis shall be as follows: All that area or part of Anne Arundel County, Maryland, included within the metes and bounds hereinafter stated; saving and excepting therefrom all United States Government Property included in said area.  Said area being described as follows:" [Here follows a description by metes and bounds which includes within in its outlines the United States Naval Academy and the property now in question.]

   [*173] The introductory clause of this definition -- "The boundaries of the City of Annapolis shall be as follows" -- was in Section 1 of the Anne Arundel County Code, 1947 Ed., prior to 1950 and was followed immediately, without any intervening clause, by a complete statement of the metes and bounds of the City.  These excluded the United States Naval Academy by describing the boundary of the City as running along the property line of the Academy.

   The present language originated in the report of the Annapolis Annexation [***6]Charter Commission, which was established pursuant to the Laws of 1949, Chapter 696.  The language was adopted verbatim in an ordinance of the City passed on April 10, 1950, which was based on the Commission's report, and it was again adopted verbatim in an Act of the General Assembly (Laws of 1951, Chapter 569), which repealed and re-enacted with amendments Section 1 of the Anne Arundel County Code (1947 Ed.).

   The subsequent statute involved is Chapter 664 of the Laws of 1953, which is claimed by the appellant to be a legislative construction of the 1951 Act favorable to the City's contentions.

   The 1950 ordinance was submitted to a referendum vote of qualified voters of the area proposed to be annexed and was approved at an election held on May 23, 1950, and was later held to become effective on January 1, 1951.

   [**495] The metes and bounds set forth in the ordinance and repeated in the 1951 Act included the area which had formerly been comprised in the City of Annapolis and added some adjacent territory.  This enlarged area, if the Naval Academy and other government property were included in it, would be almost identical with that included in the Annapolis Metropolitan[***7] Sewerage District, as enlarged in 1949.

   The area now in dispute lay outside the old City limits and had for some years been the Naval Academy golf course.

   [*174] The agreement pursuant to which the apartment houses now involved in controversy were built by the appellee and leased to it was dated August 30, 1950.  It was executed by the Government on that date and by the appellee on September 11, 1950, and had evidently been the subject of negotiations for some time.

   The appellee, in advance of concluding its agreement with the Government, but after the referendum vote approving the annexation ordinance, made arrangements with the Annapolis Water Company to obtain water for the projected apartments "upon the same conditions and price that the consumers in the City of Annapolis pay for the water furnished them." It likewise made arrangements with the Annapolis Metropolitan Sewerage Commission for the use of its facilities.  For the fiscal year beginning May 1, 1950, the charge for the latter was to be "the current sewerage tax of $0.34 per $100 of assessed value on its proposed housing project * * *; which tax is the same rate charged on all property in the Annapolis Metropolitan[***8] Sewerage District." For later years, the rate was to be subject to change but was to be at the same rate for all property in the District.  In 1950 the Annapolis Water Company was, and long had been, a part of the municipal government of Annapolis.  The Sewerage Commission was also absorbed by the City in 1951 following the enlargement of the city limits and pursuant to the Laws of 1951, Chapter 493.  Prior to its absorption by the City, the Commission was authorized to call upon the City and the County Commissioners to impose taxes upon properties within their respective jurisdictions to pay the principal of and interest on bonds issued by the Commission and to pay its operating expenses.

   The only municipal services furnished to the appellee and its tenants by the City are water and sewerage. The appellee also has an agreement to dump garbage on the City dump at a fixed price per load.  In accordance with Navy requirements, fire and police protection [*175] are furnished by the Navy, and City water is not used in the fire hydrants.

   The appellee has paid for its use of the sewerage system at the rate fixed by the 1950 arrangement with the old Commission.  The appellant asserts[***9] that for 1951 this was paid to the City as a tax, and that nothing has been paid since.

   Chapter 569 of the Laws of 1951 made a change in the election districts of Anne Arundel County and made the sixth district coincide with the City limits of Annapolis as defined in the same statute, and modified the boundaries of any other election district accordingly.  The appellee has paid County taxes for the years 1952 and 1953 at the rate applicable to the sixth district without objecting thereto.  (This is hardly surprising since the rate is lower in the sixth district than in others because of the services supposedly rendered by the City of Annapolis and not by the County.)

   The main contention revolves about the terms in which the limits of Annapolis are defined.  The appellant claims that the exception of "United States Government Property included within said area" -- i.e., within the area described by metes and bounds -- refers to a type or kind of property, or is only a precautionary clause showing that those who adopted it were aware of the limitations upon the powers of the State with regard to property owned by the United States.  The appellee contends that the exclusion is expressed[***10] in terms of area and that there is no reason to depart from its literal meaning. 

   [**496] There is no dispute about the complete jurisdiction of the United States over the property which it owns.  See S.R.A., Inc. v. Minnesota, 327 U.S. 558, but that case and others therein cited show that the possibility of repossession by the United States will not prevent a tax sale under which the paramount rights of the United States are protected.  Among the cases cited is Baltimore Shipbuilding Co. v. Baltimore, 195 U.S. 375, which affirmed the decision of this Court in 97 Md. 97.
 
   [*176] The testimony of the Chairman of the Annexation Commission shows that while the Commission was functioning he was unaware of the proposed apartment house development which was later undertaken by the appellant, Arundeland, Inc.  In response to a question by the Court he said, "No, sir, we didn't consider that at all.  We weren't interested." It is hard to deduce an intent one way or the other from a combination of lack of knowledge and indifference.

   The administrative practice upon which the appellant relies seems wholly inconclusive.  The County blew first one way and then the other on whether [***11]or not the apartment houses were in the second or the sixth election district, and there is nothing to show even by whose authority a shift of the assessment was made from the second to the sixth district.  The administrative construction of the Annapolis Water Company (really the City itself) in August, 1950, in a letter signed by the Mayor seems to have assumed that the new development was not to be in the City.  The action of the Sewerage Commission was apparently similar.

   Chapter 664 of the Laws of 1953 enacted Section 1A of the Anne Arundel County Code.  It provides that "Notwithstanding the exclusion in the preceding section [as enacted by Chapter 569 of the Laws of 1951] from the jurisdiction * * * of the City of Annapolis of all United States Government property included within the boundaries of said City as defined in said section, any buildings * * * or other improvements owned or acquired on any such property by any person or corporation other than" the United States or the State of Maryland, or an agency of either, "pursuant to any agreement [or] lease * * * from the United States shall be subject to taxation by the * * * City of Annapolis * * * if it shall be determined[***12] that any such buildings or improvements are subject to taxation by * * * Anne Arundel County and by the State of Maryland." This enactment shows such an awareness of the tax consequences which might depend upon whether government property was [*177] or was not included in the City of Annapolis as to suggest that it was inspired by the Meade Heights case, which was awaiting decision when this legislation was introduced.  Whether this was the actual fact or not, a subsequent legislative construction is not binding. Marburg v. Mercantile Trust Co., 154 Md. 438, 140 A. 836; Gibson v. State, 204 Md. 423, 104 A. 2d 800.

   The 1951 statute and, to a lesser degree, the 1953 Act which is said to construe it, stand in marked contrast with the Acts which defined the Annapolis Metropolitan Sewerage District.  That District was established by Chapter 104 of the Laws of 1931, by Section 1 of which it was provided:

   "That all that part of Anne Arundel County within the bounds comprising all of the drainage areas of Back Creek, Spa Creek, Dorseys Creek, and those parts of the drainage areas of Weems Creek and the Severn River, in which are located the communities of Annapolis, [***13] Eastport, Germantown, West Annapolis, Wardour, the U. S. Naval Academy and other federal properties, be and the same is hereby incorporated for the purposes hereinafter set forth, to be known as the 'Annapolis Metropolitan Sewerage District.'" (Emphasis supplied).

   Chapter 2 of the Laws of 1933 amended this Section by adding to the quoted language:
[**497] "which said District shall constitute a political subdivision of the State of Maryland, and a body corporate, bounded and described as follows:"
A lengthy description by metes and bounds then followed.

   Chapter 758 of the Laws of 1949 (approved the same day as Chapter 696 providing for the Annexation Commission), among other things, extended the boundaries of the District.  Another drainage area and several more communities were mentioned, and a long description by metes and bounds followed.  The words "in which are located * * * U. S. Naval Academy and other [*178] federal properties" remained unchanged.  (In view of the statement in the title of Chapter 758 of the Laws of 1949 that the District was to be enlarged, it is somewhat odd to find that the stated area is the same in the 1949 Act as in the 1933[***14] Act.)

   It can hardly be supposed that the members of the Annexation Commission, the Mayor and Aldermen of Annapolis or the Legislature were unaware of the provisions defining the area of the Metropolitan Sewerage District.  The appellant's brief recognizes the explicit inclusion of federal property in the District and seeks to deduce from that fact an intention to include it in the City, because the description of the City limits (without giving any effect to the exclusion clause) includes substantially the same area as the Metropolitan Sewerage District.  We think that the correct inference to be drawn from the contrasting language is the exact opposite.  In the District description we have an express inclusion; in the City description we have an express exclusion.

   The report of the Annexation Commission recommended the inclusion in the City of substantially that portion of the Metropolitan Sewerage District which was then outside the existing city limits.  In support of the proposed boundaries which the Commission deemed "logical and proper," it stressed the singleness of the community in various respects, a considerable number of which seems clearly inapplicable in the case of[***15] the Naval Academy.  It seems hard to deduce from such a recommendation and from the reasons adduced for it any intention to include the Naval Academy or other government property in the new City limits; and these passages in the Annexation Commission's report are not sufficient to overcome the plain language of exclusion of "all United States Government Property" which appears in both the ordinance of 1950 and the Act of the Legislature of 1951.

   This construction is somewhat fortified by the action of the City with regard to water in making arrangements [*179] with the Appellee in the summer of 1950.  It is also strengthened by the provisions of Chapter 696 of the Laws of 1949 which called for a referendum vote of the qualified voters in the area which the Annexation Commission might recommend for annexation to the City.  As the Chancellor pointed out in his opinion, "The Legislature knew that residents of government property could not vote."

   We also agree with his comments on the effect of Chapter 664 of the Laws of 1953.  If the ordinance of 1950 and Chapter 569 of the Laws of 1951 had included the Naval Academy and other government property in the City limits of Annapolis, [***16] the statute was unnecessary.  If they did not, it could hardly be contended, and it is not in fact contended, that the 1953 Act itself made any change in the boundaries.  As we have already pointed out, even if the 1953 Act is considered as a legislative construction of the 1951 Act, while it would be entitled to careful consideration, it is not controlling.  We think that the 1950 ordinance and the 1951 statute are not susceptible of the construction which the appellant contends should be placed on them.  After quoting the description in the annexation ordinance and the Act of 1951, the Chancellor said, and we agree with his views: "Neither the Commission, nor the Legislature, when using the above quoted language, were dealing with types of property or interests in property; they were dealing with the boundaries of a City.  What was excluded was not the government's interest in the property (that was already excluded), but [**498] the area of the property.  The words of the report, and of the Act, are, to me, clear and unambiguous.  There was no necessity to exclude the City's 'jurisdiction' over government property within its boundaries.  That was already adequately taken[***17] care of by the constitution of the United States, and by the laws enacted pursuant thereto. (See Lowe v. Lowe, 150 Maryland 592.)"

   It remains to be said only that while we hold that neither the Naval Academy tract nor other Government [*180] property within the area bounded by the metes and bounds, courses and distances set out in the 1951 Act is included in the limits of the City of Annapolis set forth in that Act, we are not deciding any question pertaining to the power of the Legislature to include those areas within the City limits subject, of course, to the paramount jurisdiction and rights of the United States.

   The decree of the Circuit Court on the case presented must be affirmed.

   Decree affirmed, with costs. 

NIXON v. STATE 
No. 134, October Term, 1953
 
Court of Appeals of Maryland
 
204 Md. 475; 105 A.2d 243; 1954 Md. LEXIS 228

 May  21, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court of  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment reversed and new trial awarded, costs to be paid by the Commissioners of Anne Arundel County under Chapter 492, Acts of 1953.

CORE TERMS:  handle, shirt, waxer, assault, pistol, knife, murder, picked, struck, scene, fibers, shooting, slain, manslaughter, red, coat, premeditation, biochemist, malice, exhibited, embedded, door, properly excluded, pocketbook, particles, provocation, eyewitness, custody, caution, lying

COUNSEL: Ellis Levin and J. Calvin Carney, with whom were Blanchard D. Carney, Calman A. Levin and Louis M. Strauss, on the brief, for appellant.

   Ambrose T. Hartman, Assistant Attorney General, with whom were Edward D. E. Rollins, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for appellee.

JUDGES: Delaplaine, Collins, Henderson and Hammond, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*477] [**244] Marcus Ray Nixon was tried by the court and a jury in the Circuit Court for Anne Arundel County on a charge of murder. The verdict was guilty of murder in the first degree, without capital punishment, and he was sentenced to life imprisonment.  On appeal, it is urged that the evidence was legally insufficient to support a verdict of murder, although it is conceded that manslaughter[***5] was established.  It is also urged that there was error in the rulings upon the admissibility of evidence.

   The fatal shooting in this case occurred on August 27, 1953, at about 11 P.M. outside of Clark's Restaurant, [*478] located on Annapolis Road at Seventh Street, opposite Fort Meade in Anne Arundel County.  Nixon had been a soldier, stationed at Fort Meade in 1951, and had been on terms of intimacy with one Grace Hicks.  She accompanied him to Tacoma, Washington, in 1952, but returned to Maryland when he was sent overseas, and was employed as a waitress at Clark's Restaurant.  There she became intimate with another soldier named Lassiter. When Nixon returned from overseas in June, 1953, he visited her on leave, and she told him "how she felt" about Lassiter.  There was testimony that Lassiter picked a fight with him at that time.  Nixon was discharged from the service at Fort Bragg on August 22, 1953, returned to Maryland, and "dated" Grace Hicks.

   It was shown that on August 25, 1953, Nixon purchased a twenty-two caliber target pistol, which he testified he intended to use for target practice and to protect himself against possible robbery.  However, Grace Hicks testified [***6]that he threatened to [**245] kill her with it.  Anna Walker, another waitress at Clark's Restaurant, testified that on the very day of the shooting Nixon exhibited the pistol to her and threatened to kill both Grace Hicks and Lassiter with it.  She told him: "You are kidding." On the evening of August 27, 1953, Nixon drove to the restaurant in his car, and approached the screen door in the rear.  Lassiter was inside with Grace Hicks, Anna Walker and Marvin Lowman.  Nixon called Grace Hicks and Lassiter some ugly names and Lassiter went out and struck him twice with his fist, whereupon Nixon fired two shots, with fatal results.  Nixon then drove off in his car and was picked up later by the police.

   Anna Walker, who followed Lassiter out of the door, saw the blows struck and heard the "explosions." She denied that Lassiter used any knife, stick or other weapon, but admitted she saw a stick "near where the body was lying" after the shooting. Lowman testified that Lassiter picked up a slicing knife before he went out, though he may have put it down again.  He testified [*479] that Anna Walker told him Lassiter picked up a waxer handle outside the door and struck Nixon with[***7] it.  Anna Walker denied making this statement. Trooper Wells testified he found a waxer handle lying close to the body of the deceased, and a knife lying on top of a box beside the door. Nixon took the stand and testified that he made no threats against Grace Hicks or Lassiter; that he did not call them any names; that Lassiter came out with a knife in his belt, attacked him with a stick and beat him severely; that the blows made him dizzy, and he did not remember firing the pistol. He "pulled" the gun only to frighten Lassiter.  He was afraid Lassiter was going to kill him.

   We find no merit in the appellant's contention as to the insufficiency of the evidence to show malice or premeditation. The testimony as to the motive, the purchase of the pistol and the threats to use it, the testimony that he came to the scene armed and by his abusive language provoked an altercation with Lassiter, are enough to require submission of these issues to the jury.  Cf. Chisley v. State, 202 Md. 87, 104-107, 95 A. 2d 577, 585; Grammer v. State, 203 Md. 200, 225-226, 100 A. 2d 257, 268; and Davis v. State, 204 Md. 44, 52, 102 A. 2d 816, 820. It is true that there is authority for the[***8] proposition that a killing in the heat of passion, upon sufficient provocation or without premeditated design, and particularly while resisting an unlawful and violent assault, is only manslaughter. Davis v. State, supra. But the provocation must be great and the violence extreme to justify the use of a deadly weapon, and the question is usually one for the jury.  Here there was evidence, if believed, of both premeditation and conduct inciting the assault. See Hanye v. State, 99 Ga. 212, 25 S. E. 307; State v. Inks, 135 Mo. 678, 37 S. W. 942; Addington v. United States, 165 U.S. 184, and cases cited in 1 Warren on Homicide, Secs. 100, 151. As bearing on the question of justification to repel the assault by the use of the pistol, the character [*480] and extent of the assault are important considerations, as to which the testimony is conflicting.

   It is in this context that we must pass upon the court's rulings as to the admissibility of evidence concerning the knife, the waxer handle and the appellant's shirt. The testimony that Lassiter picked up a knife, and that a knife was found outside the door on a box, was admitted without objection, although Nixon[***9] admitted that Lassiter did not attempt to use it. However, the knife offered in evidence was not the same knife, but only a similar one.  We find no error here.  Cf. Ross v. United States, 103 F. 2d 600, 606 (CCA 9th).  Nor do we find error in the exclusion of a hypothetical question put to Anna Walker, as to whether Lassiter could have dropped the knife which she never saw.  But the rulings as to the other articles are more serious. There seems to have been no formal offer of the waxer handle and shirt although they were exhibited to the jury.  One witness identified the shirt as the one worn by Nixon at the time of the shooting. A number of witnesses testified that the waxer handle produced at the trial was the one found at the scene. However, the trial court definitely ruled out a proffer of testimony [**246] by Dr. Charles Baker, a biochemist and micro-biologist employed by Penniman and Brown, chemists, to the effect that an examination of the waxer handle revealed that there was on the handle waxy material in which was embedded red fibers, identical with the fibers of the appellant's red shirt, and that there was waxy material embedded in the fabric of the shirt. In[***10] short, the proffer was to prove by scientific analysis that the handle and the shirt had come into contact, and by inference that Lassiter had struck Nixon with the handle. This would not only tend to corroborate the appellant's testimony that Lassiter struck him repeatedly on the head and shoulder with the waxer handle, but it would contradict and tend to impeach the positive testimony of Anna Walker, the only eyewitness, that Lassiter used only his fists in the assault. The State contends that "the real basis for the [*481] action of the trial court in excluding Dr. Baker's testimony was that the chain of custody was such that there was no showing that the waxer handle was in the same condition when observed at the scene of the crime as it was when examined by Dr. Baker".

   The witness Clark testified that immediately after the body was removed, he picked up the waxer handle and handed it to Captain Harper, commanding officer of the Criminal Investigation Department at Fort Meade.  Captain Harper placed identifying marks on the handle. He made an unsuccessful attempt to turn it over to Sergeant May of the State Police, who did not want it.  It remained in the back of Captain[***11] Harper's car for three days and then he placed it under the porch of his mother-in-law's home.  On September 15, 1953, he gave it to defense counsel, who in turn, delivered it to Dr. Baker.  Defense counsel had previously obtained Nixon's shirt from the State Police and turned it over to Dr. Baker on September 1.  The State argues that no one testified the handle was in the same condition when turned over to Dr. Baker as when it was first picked up, and that no one could know what may have come in contact with the handle while it was in the back of the car or under the porch.

   The State relies upon the cases of State v. B. & O. R. R. Co., 117 Md. 280; Blake v. State, 157 Md. 75, and Murphy v. State, 184 Md. 70. In the case first cited, it was held that a shoe worn by a boy who was killed when his heel was caught in a railroad switch, was properly excluded from evidence in a civil case, because of failure to show that it was in the same condition as at the time of the accident.  It could not have been reversible error in any event, for the fact that his foot was caught was undisputed.  In Blake v. State, supra, a conviction for rape alleged to have occurred in a woods, [***12] the coat of the accused was exhibited to the jury for their inspection of particles of weeds or burrs lightly attached to it.  These particles had not been discovered until the time of the trial, although the coat had been for two months in the [*482]possession of the police.  It was said: "The conclusion of the court is that while there might be, from the facts that the coat had been taken into the custody of the police on the day of the crime, and kept in that custody since, some ground of inference that the contact with the weeds or bushes had occurred on or before the day of the crime, proper caution in the introduction of such evidence * * * requires that testimony tending to eliminate the possibility of attachment of the particles subsequent to the day of the arrest should be introduced as a preliminary.  Although exactly this point was not made in the trial of this case, we think it should be met in a retrial".  In Murphy v. State, supra, an offer of the contents of a pocketbook found at the scene of the rape was excluded for failure to show that they were the same as when the pocketbook was found.  The ruling was not objected to, nor was it pressed on appeal, and[***13] testimony as to a certain card of the accused observed in the pocketbook at the time it was picked up was admitted.  Thus the ruling as to the contents, which actually was in favor of the accused, could not have been prejudicial to the State.  The conviction was affirmed.

   It is generally recognized that preliminary testimony that the condition of [**247]the article offered remains the same is necessary or desirable.  2 Wharton, Criminal Evidence (11th ed.) § 757.  There is an interesting discussion of the problem in the concurring opinion of Ellison, J. in State v. Myers, 172 S. W. 2d 946 (Mo. 1943). Wigmore indicates that there is a natural inference or presumption of continuance in the same condition which varies in each case with the nature of the subject matter and the time element.  2 Wigmore, Evidence (3d ed.) § 437 (1).  However, as pointed out in the Blake case, the true rule is simply one of "proper caution" to require preliminary proof, where available, of what may properly be shown by inference.  In Ford v. State, 181 Md. 303, 312, another rape case, it was held that a coat of the accused, stained with human blood, was properly put in evidence[***14] without direct proof that it remained in [*483] the same condition, and Blake v. State, supra, was distinguished.  In Shanks v. State, 185 Md. 437, scientific evidence as to the type of blood on the accused's garments and elsewhere was held properly admitted.  In Corens v. State, 185 Md. 561 and Williams v. State, 64 Md. 384, testimony as to chemical and medical findings based on material examined long after the alleged crime, was held properly admitted.  In Edwards v. State, 194 Md. 387, a cartridge case picked up at the scene of the crime nine days after the murder was held admissible to furnish a basis for expert opinion that it was fired from the accused's pistol. In the instant case, the possibility that red fibers, identical to those of which the shirt of the accused was made as determined by chemical and microscopic examination, could have become embedded in the waxer handle subsequent to the shooting, is so remote as to be negligible.

   The case of United States v. S. B. Penick & Co., 136 F. 2d 413 (CCA 2d), relied on by the State, merely holds that there is no hard and fast rule that articles offered must be continuously beyond the reach of intermeddlers. [***15]The question is one of reasonable probability.  See also Pasadena Research Laboratories v. United States, 169 F. 2d 375 (CCA 9th).  In the instant case the probability that third parties may have had access to the waxer handle while in the back of the car or under the house is extremely slight, and the identification of the article was beyond question.  Cf. Freedman v. State, 195 Md. 275.

   The State argues that in any event the matter should be left entirely to the discretion of the trial court, citing 2 Wigmore, Evidence (3d ed.), § 437(1), supra.  But we are unwilling to adopt that view.  The testimony was so relevant and material, as bearing upon the character of the assault and contradicting the testimony of the only eyewitness, that we think its exclusion an abuse of discretion under the circumstances which amounted to reversible error.  Of course, the jury might [*484] disbelieve it, or attach little weight to it, but they should have had the opportunity to consider it, when proferred.

   Other objections to rulings on the evidence have little substance and may be briefly noted.  The significance of a question put to Dr. Fisher, who performed an autopsy, [***16] as to the angle of the chest wounds is not apparent, and seems to have been fully covered on direct examination.  There was no abuse of discretion in admitting a photograph of the scene taken the following day for the limited purpose of showing the location.  Any possible error in rejecting the record of the sale of the pistol offered by the appellant to show an error as to the date, was cured when the accused admitted purchasing the pistol on August 25.  Certain questions put to character witnesses were properly excluded as not properly framed to elicit the general reputation of the accused for peace and quietude in the community where the appellant resided, or where the witnesses stated they had never heard any opinion expressed prior to the shooting. Allison v. State, 203 Md. 1, 98 A. 2d 273 and cases cited.  A question as to the general reputation of Lassiter, apparently designed to show his quarrelsome disposition, was properly excluded because it was not confined to the neighborhood nor was any basis laid.  We [**248] need not now consider whether, if the question had been properly framed and a proper basis laid, it would have come under the exception that where there[***17] is a claim of self-defense the general rule, that the reputation of a victim is not at issue, is not applicable.  See 1 Wharton, Criminal Evidence, Sec. 339 and note 64 A.L.R. 1029. The court's charge to the jury, to which there was no objection, clearly put to the jury the issue of self-defense.

   Judgment reversed and new trial awarded, costs to be paid by the Commissioners of Anne Arundel County under Chapter 492, Acts of 1953. 

AMERICAN OIL COMPANY v. MILLER, et ux., et al. 
No. 87, October Term, 1953
 
Court of Appeals of Maryland
 
204 Md. 32; 102 A.2d 727; 1954 Md. LEXIS 185

 February  10, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  zoning, rezoning, agricultural, service station, highway, traffic, zoned, feet, debatable, neighborhood, intersection, topography, site, station, residential, bridge, ordinance, decree, commercially, triangle, comfort, zone, comprehensive zoning, convenience, unsuitable, consisting, interfere, presumed, corner, users

COUNSEL: O. Bowie Duckett, with whom were Malcolm B. Smith, James K. Eagan, Jr., and John W. Sherman on the brief, for the appellant.

   June L. Green, with whom was William A. Ehrmantraut on the brief, for Philip E. Miller et al., appellees.

   Wilson K. Barnes for The Magothy River Association, Incorporated, appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*34] [**729] This is an appeal from a decree declaring null and[***5] void resolutions of the County Commissioners of Anne Arundel County, (the Commissioners), rezoning a lot of land in Anne Arundel County, the property of Frank Festagallo and Dolores Festagallo, his wife.

   The Festagallos were owners of a small triangular lot of land consisting of 1.88 acres in the Third Election District of Anne Arundel County located approximately one thousand feet south of the town of Arnold and about four miles north of Annapolis.  The west side of the triangle, consisting of 431.05 feet is on the east side of the Ritchie Highway leading from Baltimore to Annapolis. The east side of the triangle, consisting of 498.59 feet is on the west side of the old Annapolis road.  The base of the triangle, consisting of 338.37 feet is between these two roads.  The apex of the triangle [*35] is located where the old Annapolis Road joins, but does not cross, the Ritchie Highway.

   Apparently Anne Arundel County first acquired authority for zoning by Chapter 551 of the Acts of 1943.  Very little was done as a result of this Act.  Anne Arundel Co. v. Ward, 186 Md. 330; Anne Arundel Co. v. Snyder, 186 Md. 342. This Act was repealed by Chapter 388 of the Acts of 1947[***6] and by that Act seven new sections were adopted authorizing and empowering the Commissioners to operate under a comprehensive zoning plan.  By that Act and Chapter 426 of the Acts of 1949 a Zoning Commissioner and a Board of Zoning Appeals were authorized.  Previous to April 20, 1948, most of the land on the Ritchie Highway from Glen Burnie to Annapolis was zoned "Agricultural", including the property here at issue, or "Residential".  On January 3, 1952, the Commissioners adopted a resolution placing Anne Arundel County under the provisions of Article 66B, Sections 10 through 37, both inclusive, of the Code of Public General Laws of 1951.  The previous zoning was by this resolution continued in effect until a new plan was adopted pursuant to the provisions of Article 66B, supra.  On July 1, 1952, this new zoning plan became effective.

   On April 20, 1948, the Commissioners adopted what was termed as a comprehensive zoning plan for the entire Third District.  This plan, which was declared invalid by the court due to the omission of the key from the zoning map, was readopted on February 15, 1949, and had been operating until June, 1952, the date about which we are concerned in this[***7] case, except for certain exceptions.  The only exception which is pertinent here is that the western corners of the intersection where the Arnold Road meets the Ritchie Highway were left "Agricultural" in the comprehensive zoning of 1948 because these corners were occupied by two residences.  At the request of both property owners, the western corners were rezoned to "Heavy Commercial", on June 28, 1949, in order to conform with the other side of [*36] the highway where a service station was located.  After the time with which we are here concerned, a service station had been erected on this rezoned land.  This comprehensive plan established either "Light" or "Heavy Commercial" zones on the Ritchie Highway at Harundale, Mountain Road, Elvaton, Pasadena, Earleigh Heights, Macey's Corner, Jones' Station, Arnold and Winchester.  Under this plan the Festagallo property continued to be zoned "Agricultural", which at that time permitted one family or two family dwellings.

   Previous to December 2, 1947, the Festagallos filed an application to rezone the property here in question from "Agricultural" [**730] to "Commercial". This rezoning was refused by the Commissioners.  According[***8] to the information before us, the Commissioners refused eighteen other applications for rezoning of lands on the Ritchie Highway and the Revell Highway between 1946 and June 10, 1952.  On October 30, 1951, the Festagallos filed with the Zoning Commissioner a petition for the rezoning of their property from "Agricultural" to "Heavy Commercial", in order to permit the property to be used as a gasoline service station. On February 2, 1952, the Zoning Commissioner filed a report disapproving this application for rezoning and recommending that the zoning remain as established for the following reasons:
"1. The zoning plan for the Governor Ritchie Highway has established certain commercial intersections. These intersections are not completely developed along commercial lines at this time and therefore it is the opinion of the Zoning Commissioner that no additional commercial zones are necessary at this time.
 2. In establishing the above plan the Board of County Commissioners took into consideration the key intersections on the highway. In the Arnold area it was determined that the key intersection is the one adjacent to this intersection where there is now a blinker light [*37] [***9] and accordingly the commercial zone at Arnold was established at the latter intersection rather than at the one now under consideration.
3. Nothing has taken place on the Governor Ritchie Highway since this request was originally filed and acted on by the Board of County Commissioners to warrant a change in the recommendation of the Zoning Commissioner at this time.
4. Letters of protest were received from seven (7) property owners in this area and no letters have been received in favor of the application."
The report of the Zoning Commissioner was approved by the Planning and Zoning Commission on March 20, 1952, and Mr. Rogers, the Zoning Commissioner, was requested to set a hearing before the Commissioners.  On June 10, 1952, the Commissioners, by a vote of six to two, passed a resolution stating that after public hearings and after considering the reports of the Zoning Commissioner and the Planning and Zoning Commission opposing the change and upon viewing the site in question, they approved the requested change from "Agricultural" to "Heavy Commercial" for the property here in question.  This resolution contained the following:
"Whereas, the traffic on the Governor Ritchie[***10] Highway will be considerably increased upon the completion of the bridge over the Chesapeake Bay on U. S. Highway No. 50 thus increasing the need for areas zoned for commercial on the Governor Ritchie Highway, and
Whereas, there is now an inadequate number of districts zoned as commercial on the Governor Ritchie Highway, said inadequacy resulting in unreasonable prices or rents being demanded by the owners of said commercially zoned properties, and 
Whereas, the topography of said lot is deemed to be unsuitable for residential or agricultural [*38] use because of its low lying character, its chief if not sole prospective use being commercial
Whereas, it is the opinion of the Board that additional commercial zones at proper locations would not interfere with the safety, comfort, convenience and welfare of the users of the Governor Ritchie Highway. * * *"
On July 1, 1952, the Commissioners adopted a new comprehensive zoning plan wherein the zoning of the property here in question was continued as "Heavy Commercial".

   Of course, in passing upon the decision of the Commissioners, we will consider only the facts and circumstances existing at the time the resolution was passed[***11] on June 10, 1952.  On June 21, 1952, Philip E. Miller and wife and Carl E. Ortman and wife, owners of residences in the immediate [**731]neighborhood and taxpayers, filed a suit against the Festagallos and the Commissioners in the Circuit Court for Anne Arundel County, asking that the resolutions of the Commissioners of June 10, 1952, and July 1, 1952, be stricken down.  On March 4, 1953, a second supplemental bill was filed by the Millers and the Ortmans against the Festagallos, the Commissioners and the American Oil Company, alleging that the American Oil Company had by decree become the transferees of the Festagallo property.  This bill further alleged the original zoning of the Festagallo property as "Agricultural"; the second application for rezoning to "Heavy Commercial"; the disapproval of the Zoning Commissioner and the Planning and Zoning Commission; and the action of the Commissioners in rezoning the property as "Heavy Commercial".  It also alleged that a building permit was about to be issued to permit the erection of a gasoline station. The petitioners claimed that the establishment of this service station would seriously depreciate their properties; would tend to[***12] destroy the comfort, well being and property rights in the neighborhood; that the action of the Commissioners was arbitrary, unreasonable and discriminatory [*39] and without any substantial relation to the public health, morals or general welfare; and that such an action constituted "spot" zoning. Petitioners asked that the resolutions of June 10, 1952, and July 1, 1952, be declared unconstitutional and void and that an injunction be issued restraining the operation of the resolutions.  On August 6, 1952, the Magothy River Association filed a petition stating that it consisted of approximately seven hundred members who were vitally interested in land in the Third Election District of Anne Arundel County and asked to intervene in the case, which permission was granted.  From a decree granting the relief prayed in this second supplemental bill, the American Oil Company alone appeals to this Court.

   The law is well settled in this State that where a legislative body under powers granted by the Legislature has enacted a zoning ordinance, the review by the courts is restricted and narrow in scope.  Such an ordinance being in the exercise of the police power is presumed to be valid. [***13] A successful attack must show affirmatively and clearly that the ordinance is arbitrary, capricious, discriminatory or illegal.  The presumption of reasonableness and constitutionality of the ordinance applies to rezoning as well as to original zoning, though not with as great force.  The original zoning is presumed to be well planned and designed to be permanent.  In order for the rezoning to be valid it must appear that either there was a mistake in the original zoning, or that the character of the neighborhood has changed to such an extent as to justify the amendatory action.  The courts will not substitute their judgment for that of the legislative body if the question decided was fairly debatable. Northwest Merchants Terminal v. O'Rourke, 191 Md. 171; Kracke v. Weinberg, 197 Md. 339; Wakefield v. Kraft, 202 Md. 136; Zang & Sons v. Taylor, et al., 203 Md. 628, just decided.  We will therefore examine this case to determine whether the rezoning here was arbitrary, capricious, discriminatory or illegal and whether the action of the Commissioners was fairly debatable. [*40] To find that this rezoning was legal, it is necessary that we find that there was a [***14]mistake in the original zoning or that the character of the neighborhood was changed to such an extent as to justify the action.  Even if we assume in this case, which we do not, that the original zoning as "Agricultural" was more or less perfunctory, we find that after the original zoning the Festagallos applied for a change to "Commercial", which was denied. The Commissioners, in refusing that first request, must have given consideration to the matter.

   From the resolution of the Commissioners, it is evident that they based their action for rezoning on the following: increase in traffic upon the completion of the Chesapeake Bay bridge; inadequate number of sites zoned commercially; unsuitable topography of the lot; and that additional commercial zones at proper locations would not interfere with the safety, comfort, convenience [**732] and welfare of the users of the highway.

   As to the increase in traffic, Mr. Vern J. Munger, Jr., traffic analyst, traffic control supervisor, and attorney for the State Roads Commission, testified as to the record of the State Roads Commission showing traffic count on the Ritchie Highway. The Chesapeake Bay bridge was opened to traffic on July [***15]30, 1952.  In actual figures the daily average of traffic of vehicles follows: for 1948 -- 7,803; for 1949 -- 9,492; for 1950 -- 9,935; for 1951 -- 10,980; for 1952 -- 12,777.  Therefore the increase during 1952, the year the bridge was opened, over 1951 was between sixteen and seventeen per centum.  There appears to be no evidence in this case that anyone has been unable to obtain service for his automobile, gasoline, oil or water in the vicinity.  In fact, there was, on June 10, 1952, a modern Esso service station eight hundred feet from the site here in question.  The record shows there were ten gasoline service stations on the south bound lane and ten on the north bound lane of the fourteen miles of the Ritchie Highway between the Glen Burnie stop light and Annapolis and there were two stations on the Revell Highway between the Chesapeake [*41] Bay bridge and its junction with the Ritchie Highway. From an exhibit filed in the case it is shown that on the Ritchie Highway from Potee Street in Brooklyn to the Severn River bridge there were forty-one gasoline service stations, twenty on the right or west side of the highway and twenty-one on the left or east side.  Of these the[***16] American Oil Company had eight.  According to the testimony of Mr. Edward Heiselberg, the Planning Administrator for Anne Arundel County since May, 1952, on the New Jersey Turnpike the service stations are on the same side of the road and are about twenty-four miles apart.  There is no testimony here to show that the service stations in existence on the Ritchie Highway, when the resolution was passed, could not reasonably accommodate all the traffic thereon.  The appellant relies on Ellicott v. City of Baltimore, 180 Md. 176. The lot there, where a service station was permitted, was on the corner of Cold Spring Lane which had recently been opened as a wide highway connecting the more thickly populated sections of Baltimore to the east and west.  In the instant case, with the number of service stations on the Ritchie and Revell Highways and with no testimony that these could not accommodate the traffic, we are of opinion that an increase in traffic of seventeen per centum did not make the rezoning debatable.

   As to the contention that there were an inadequate number of sites zoned commercial, Mr. LeRoy C. Moser, right of way engineer for the State Roads Commissioner, testified that[***17] there were fifty-two commercial places from the intersection of Glen Burnie to the new Revell-Ritchie interchange.  On the Ritchie Highway there were sixty-five hundred feet zoned commercially, of which forty-nine hundred feet had not been used.  "Heavy Commercial" zoning was required for a service station at the time this resolution was passed.  On the same highway there were nine thousand feet zoned "Heavy Commercial" of which sixty-nine hundred feet had not been used.  As hereinbefore stated, almost directly opposite [*42] the Esso service station, eight hundred feet from the area here in dispute, was land which, on June 28, 1949, had been rezoned "Heavy Commercial".  Since June, 1952, we are informed that a service station has been erected there.  Apparently the oil company which built this station did not think that the price was too high to prevent the purchase.  With all the unused land zoned "Heavy Commercial" on this highway, availability of adequate sites does not seem to be debatable.

   As to the contention that the topography of this lot was unsuitable for other purposes, residential or agricultural, the testimony shows that the apex of the triangle and about half of[***18] the lot is below the road grade.  However, the rest of it is about fifteen feet above the road grade.  At the time here in question the zoning as "Agricultural" permitted one or two family dwellings. According to the testimony of [**733] Mr. Joseph Lazenby, produced by the plaintiffs, and who had been in the real estate business in the vicinity for many years, although the most appropriate use of this land would be commercial, it could be used for residential purposes with no trouble at all.  He said: "I would say its better use is commercial, but there is no reason in the world why it could not be developed with residences.  I would say at least three residences on the tract." Mr. Mellor, another real estate broker in the community, produced as a witness by the defendants, testified that, although none of this land had ever been used for agricultural purposes, the land across the road from it had been used as a garden.  He also testified that, although it would be costly, the lot could be used for residential purposes.  Certainly, if the American Oil Company were to erect a service station on this site, it would be necessary to grade the land.  With grading, residences could[***19] be built.  As was said by Judge Bond in Ellicott v. Baltimore, supra, at page 184: "Any zoning in districts must involve denials of more profitable uses for some individual lots.  Leaby v. Inspector of Buildings, 308 Mass. 128, 31 N. E. 2d 436; Zahn v. Board [*43] of Public Works, 274 U.S. 325, 47 S. Ct. 594, 71 L. Ed. 1074." As pointed out in the able opinion of the chancellor, there is no evidence here that the topography of this lot is such that to continue the present zoning would depreciate its value to such a great extent as in Northwest Merchants Terminal v. O'Rourke, supra, or in Kracke v. Weinberg, supra. The topography of the lot as a basis for rezoning does not appear debatable. Nor does the evidence here show that the topography of the lot was such that the original zoning as "Agricultural", which allowed one or two family dwellings, was error or mistake as in Hoffman v. City of Baltimore, 197 Md. 294.

   As to whether this service station would interfere with the safety, comfort, convenience and welfare of the users of the highway, there was testimony that some of the houses in this vicinity were built with the idea of getting away from commercial[***20] establishments and that the service station would depreciate the value of the properties.  Mr. Lazenby testified that the service station would seriously reduce the value of the residential properties in the neighborhood. There is no testimony to the contrary.

   The appellant lays great stress upon what the Commissioners in this case "knew".  The preamble to the resolution and the personal knowledge of the Commissioners could not be considered as evidence of change.  Whether the action of the Commissioners was arbitrary is to be determined by the facts from which the conclusion was drawn, not from the conclusion itself.  The Courts review the action, not the opinion, of the Commissioners.  City of Baltimore v. Byrd, 191 Md. 632; Williams v. McCardell, 198 Md. 320, 330; Zang & Sons v. Taylor, supra; Strain v. Mims, 123 Conn. 275, 193 A. 754.

   Zoning is permitted as an exercise of the police power and is presumed to be well planned and intended to be permanent.  For the public good, it takes away some of the rights of individuals to use their property [*44] as they might desire.  At the same time it gives them rights to restrict injurious uses of the property of others. [***21] Zoning cannot be done by piecemeal legislation. It can be upheld only as part of a general plan for a community which sets apart certain areas for agricultural, residential, and business purposes, where such uses are obviously suitable and needed.  Such a plan must be for the public health, welfare and safety.  City of Baltimore v. Byrd, supra.

   Finding in this case that there was no mistake in the original zoning; that the character of the neighborhood had not changed to such an extent as to justify the rezoning; and that the reasons given by the Commissioners are not supported by the facts in the case, we agree with the finding of the chancellor. The decree will be affirmed.

   Decree affirmed, with costs. 

STATE ROADS COMMISSION OF MARYLAND v. NOVOSEL et al. 
No. 71, October Term, 1953
 
Court of Appeals of Maryland
 
203 Md. 619; 102 A.2d 563; 1954 Md. LEXIS 356

 February  10, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed with costs.

CORE TERMS:  condemnation, lease, lessee's, tenant, real estate, appraisals, reversionary interest, leasehold, volume, total fair market value, business profits, highway, bridge, valuation, rental, productive capacity, rental value, excavating, allowable, qualifications, computing, aggregate, appraiser, ownership, estimate, condemnation proceeding, testimony relating, legally admissible, record to support, business property

COUNSEL: Andrew W. Starratt, Jr., Special Attorney, with whom were Edward D. E. Rollins, Attorney General, Joseph D. Buscher, Special Assistant Attorney General , and James C. Morton, Jr., Special Attorney, on the brief, for the appellant.

   Walter C. Mylander, Jr., with whom were Henry A. Mylander and Marshall A. Binder on the brief, for the owners of the reversionary interest.

   Louis M. Strauss, with whom was John H. Hopkins, IV, on the brief, for the lessees.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins and Henderson, JJ.  Sobeloff, C. J., delivered the opinion of the Court.

OPINIONBY: SOBELOFF

OPINION: [*622] [**564] In a condemnation suit brought by the State Roads Commission to acquire a strip of land to widen the Revell Highway, the jury, after viewing the site and hearing testimony, made its inquisition and awarded the lessees of the property, Collier and wife, $8500, and the owners of the reversionary interest, Novosel and wife, $22,000.  From judgment entered [***7]upon the jury's award, this appeal was taken by the Commission.

   The area involved contains about .369 acres and was occupied and used by the Colliers as a restaurant and package liquor store on the north side of the Revel Highway about two miles west of the Chesapeake Bay [*623] Bridge. The lease of the property, made in 1947, was for a ten-year period with a renewal privilege of ten years at a rental of $140 per month.  It ante-dated the construction of the bridge; indeed, when the property was leased it was not certain that the bridge would actually come into being.  The Revell Highway, now a modern dual highway linking the bridge with main traffic arteries to Baltimore and the South, was then only a single lane road.  Favored by the volume of traffic from the bridge, from the subsequently established State Park nearby, and from recently constructed homes in neighboring real estate developments, the restaurant and liquor business increased in volume ten-fold and prospered. Coupled with these factors was the protection afforded by the zoning law which largely shielded this non-conforming use from competition.

   The central question raised by this appeal is how and to what[***8] extent these circumstances may fairly be reflected in measuring damages for the taking.

   I.

   The State's chief complaint is against the appraisals made by the appellee Collier and his expert appraiser, Charles M. Bandiere.  It is contended that these appraisals should [**565] have been excluded, as they were based upon business profits. The appellant concedes that it is proper to consider profits in computing damages from the taking of business property, but urges that profits should not be permitted to be the sole or principal consideration.

   In the condemnation of an interest in land the law is careful to avoid the capitalization of profits derived from a business occupying such land; for that which is being taken and for which compensation is due is the land, and not the business.  Business profits, it is well recognized, are no sure test of land value for they depend not only on location but on other factors; the same location may be fruitful of profit to one and not so to another.  This does not mean, however, that in determining the value of the land no consideration is [*624]to be given to its productive capacity which, in such circumstances as are present in[***9] this case, has an important bearing on value.  4 Nichols on Eminent Domain (3rd Ed.), Sec. 12.3121 [1]; 5 Nichols, Sec. 19.3 [1], and [4]; 1 Orgel on Valuation under Eminent Domain (2nd Ed.), Sec. 164.

   As a practical matter, a prospective purchaser would hardly fail to consider whether or not the business conducted on the premises had proved profitable, for this would be a measure of the desirability of the location, if not to him then to other purchasers.  The precise weight to be accorded to this factor is a matter of judgment on which experts may differ, and of this the jury is the final judge.  In this case we find that Mr. Bandiere did inquire into the productivity of the premises, and particularly into the question of business profits, although in his testimony he was not permitted to give the figures.  He did not, however, confine himself to profits for he testified, "I have made several visits to the property and measured the value of that type of business to the location with respect to vehicular traffic, the type of highway, the fact that the highway is a connecting link and is what has now become an eastern costal highway from Maine to Florida; I have[***10] considered the income of the lease; I have studied volumes of business, profits therefrom; I have studied the processes through which you evaluate leases and arrive at conclusions."
 
   With the increasing vogue of leases of business property reserving rentals computed on a percentage of the volume of business transacted by the tenant, it would be artificial and illusory to reject an expert opinion of rental value that takes into account the volume of business which experience has shown a particular piece of property is capable of producing; and, of course, the resulting profits may be, if anything, even more pertinent to the question of value.  We find no basis for the objection either to the testimony of the expert, or to that of the owner who as such, irrespective of other [*625] qualifications, is permitted to give his estimate of the value of his holdings. Bailey v. Ford, 151 Md. 664; Pennsylvania Threshermen & Farmers Mutual Casualty Ins. Co. v. Messenger, 181 Md. 295, 302; Jackson v. Linthicum, 192 Md. 272, 276; 3 Wigmore on Evidence (3rd Ed.), Sec. 716.

   It was entirely correct and legally admissible for the tenant to show the increase in rental value since[***11] the date of the lease and to claim compensation for the increase over the rental fixed in the lease.

   I.

   The appellant further objects that the Court should have excluded the expert's testimony relating to damages because his estimate, it is said, was not based upon the difference between the total fair market value of the entire property before the taking and the total fair market value of the part of the property remaining in the defendants after the taking.  See Realty Improvement Co. v. Consolidated Gas Electric Light & Power Co., 156 Md. 581, 588; Pumphrey v. State Roads Comm., 175 Md. 498, 505; Johnson v. Consolidated Gas, Electric Light & Power Co. of Baltimore, 187 Md. 454, 469-470. It is not shown [**566]that the aggregate of the awards for the taking made to the owner and the tenant was in excess of the difference between the value before and after the taking.  Mr. Bandiere's testimony was concerned more particularly with the value of the lessee's interest, for he was called as an expert for the tenant. Others had testified as to the aggregate damage for which the State was liable and to the problem of apportionment of the total award between landlord [***12]and tenant.

   Parties and their witnesses quite naturally stress the factors which seem to them to support their contentions.  The jury's function is to determine whether the emphasis sought to be given the facts in any of the testimony is correct, and they need not follow any witness' judgment as to the weight to be given to a particular factor in arriving at a valuation. Indeed, in the instant case the [*626]jury seems to have exercised an independent and discriminating judgment, for in valuing the tenants' interest at $8500 they declined to follow exclusively the judgment of any single one of the witnesses, whose valuations ranged from a low of $2,000 to a high of $54,348.

   III.

   We find nothing in the record to support the appellant's contention that the appellees' appraisals were made on the assumption that damages to the leasehold plus damages to the reversion could legally exceed the total damages that would be allowable for the same property if held under one ownership. Under these circumstances we need not concern ourselves with the question whether this is the type of case where the total of the awards to the owner and the tenant could properly be permitted[***13] to exceed the amount that the property would be worth in the hands of a single owner.  Cf. Gluck v. Mayor and City Council of Baltimore, 81 Md. 315, 321; Mayor and City Council of Baltimore v. Latrobe, 101 Md. 621; Mayor and City Council of Baltimore v. Gamse, 132 Md. 290, 293.

   IV.

   Marion Cox, whose qualifications as a real estate expert are conceded by the appellant, in discussing the comparability of sales of land in the immediate neighborhood, was permitted to give an opinion as to the cost of excavating earth and how much should be allowed for excavation necessary to make the land remaining after taking available for use.  The appellant insists that as Mr. Cox was not shown to have expert knowledge as to the cost of excavating land he should not have been permitted to testify to this.  We see no ground for complaint on this score.  As a real estate expert it was perfectly competent for him to recognize what appeared to him to be a possible defect in the property and, after informing himself by inquiry as to the cost of remedying this condition, to make suitable allowance in computing the value of the property. An expert may be one who is trained in assembling[***14] and evaluating information in [*627] allied fields in which he lacks the same first-hand knowledge that he possesses in his own specialty.  All that Mr. Cox did falls well within his area of expertness, and it would have been in order for the State to challenge his figures and, if it could, to offset them by opposing testimony.

   V.

   The appellant also asserts that it was error for the Court to state in the jury's presence that the condemnation of the property meant that the proprietor of the business lost his right to operate.  We do not see how this statement of an obvious fact could have prejudiced the jury against the appellant, especially as throughout the trial the Judge made it clear that the jury was to allow only for the value of the respective interests in the real estate and not for the loss of the business.  Indeed, at the outset of the trial the parties themselves in terms stipulated: "It is hereby stipulated that the taking of a portion of the property of the defendant Novosel herein constituted a taking of substantially all that portion [**567] of the property covered by the lease, dated June 30, 1947, * * * to Herman O. Collier and wife and that the legal [***15]effect thereof is the termination of the said lease as of the time of the said taking, and that said lease is cancelled as of said taking."

   Finding no error, the judgment will be affirmed.

   Judgment affirmed with costs. 

ZANG & SONS, BUILDERS, INC. et al. v. TAYLOR et al. 
No. 72, October Term, 1953
 
Court of Appeals of Maryland
 
203 Md. 628; 102 A.2d 723; 1954 Md. LEXIS 357

 February  10, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  rezoning, zoning, agricultural, rezoned, theatre, zoned, neighborhood, snack bar, chancellor, permanent, acres, reasonableness, decree, legislative body, well planned, residential, ordinance, arranged, triangle, outdoor, highway, subject to change, zoning ordinance, null and void, open air, discriminatory, petitioned, debatable, genuine, traffic

COUNSEL: William J. McWilliams and Marvin I. Anderson, with whom were McWilliams, Evans & Melvin on the brief, for the appellants.

   John H. Hopkins, IV, and Louis M. Strauss for the appellees.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*630] [**724] This is an appeal from a decree of the Circuit Court for Anne Arundel County declaring[***4] a zoning resolution of the Board of County Commissioners, (the Commissioners), null and void insofar as the property of the appellant, Zang & Sons, Builders, Inc., (Zang), was concerned.

   Zang was the owner of a tract of land, consisting of from thirty-five to forty acres, in the First District of Anne Arundel County, a few miles below the South River bridge.  It lies within a triangle formed by three highways. The land immediately within each of the three angles of the triangle is zoned "Heavy Commercial".  The property, consisting of 13.26 acres, within the triangle sought to be rezoned, is bounded on the north and south by State highways, on the east by land zoned "Heavy Commercial", and on the west by other lands of the appellant zoned "Cottage Residential".  It was pointed out by the chancellor that the property in said First Election District was first zoned on June 6, 1950.  At that time, the County was operating under Chapter 388 of the Acts of 1947 and Chapter 426 of the Acts of 1949.  The property in question, together with other property of said owner, containing altogether some thirty-five to forty acres, with a frontage of about seven hundred feet on Mayo Road, about [***5]eighteen hundred feet on Solomons Island Road, and about the same on Central Avenue, was zoned "Agricultural".  On January 3, 1952, the Commissioners adopted a resolution placing said County under the provisions of Article 66B, sections 10 to 37, both inclusive, of the Code of Public General Laws of 1951, with a Planning and Zoning Commission and a Board of Appeals, and providing for the establishing of a new zoning plan for the County.  This new zoning plan became effective July 1, 1952.

   The appellant, on June 26, 1952, four days before the new comprehensive zoning plan became effective, [*631] petitioned the Commissioners to rezone its entire property in the aforesaid triangle, including the 13.26 acres here sought again to be rezoned, from "Agricultural" to "Cottage Residential".  On September 30, 1952, the Commissioners adopted the following resolution:
 
"Whereas, conditions in the below described area have changed since the adoption of the Zoning Ordinance for Anne Arundel County on July 1, 1952, now requiring residential lots instead of an agricultural area, and
 
Whereas, the Cottage Residential District is more appropriate for urban-type lots than the Agricultural[***6] District, and
 
Whereas, there is a need for subdivisions of urban-type lots in Anne Arundel County,
 
Now, therefore, be it resolved, this 30th day of September, 1952, by the Board of County Commissioners of Anne Arundel County, Maryland, that after due consideration and after hearing the report of the Planning and Zoning Commission approving the change, said change having been advertised as required by law, the Board hereby approves the change in zoning from an Agricultural to a Cottage Type Residential Zoning District for the property * * *"

   On December 18, 1952, Zang filed with the Planning and Zoning Board of Anne Arundel County another petition asking that 13.26 acres of its property, which had been rezoned three months before on September 30, 1952, from "Agricultural" to "Cottage Residential", to rezoned "Heavy Commercial" in order that it might be used as an "open air drive-in moving picture theatre with snack bar inside theatre".  As a result of that application, the Planning Administrator on January 15, 1953, reported to the Commissioners that the Planning and Zoning Commission was of the opinion
 
[*632] "that additional commercial uses would be needed[***7] to serve the expanding residential population of the area.  This would be an extension of an existing heavy commercial zone to the south and not the creation of a new commercial zone.  The Commission believed [**725] that the problems of safety, traffic and health would be adequately handled in this location, as far as an outdoor theatre and snack bar were concerned."
 
After advertising and posting, the Commissioners held hearings on February 10, March 10, and March 17, 1953, on appellant's application, and on March 17, 1953, six months after the first rezoning, passed a resolution approving the rezoning of the 13.26 acres to a "Heavy Commercial" district, which resolution contained the following:
 
"Whereas the population in the vicinity of Annapolis, Parole, Edgewater Beach, Woodland Beach and other adjoining or nearby areas is rapidly increasing thus necessitating additional commercial uses to serve them and commercial zones to contain such commercial uses and
 
Whereas, the area petitioned as amended by the Planning and Zoning Commission, being an extension of an existing Heavy Commercial Zone practically adjoins a tavern to the north and a lumber yard to the[***8] west and vacant property to the south and east
 
Whereas there is a growing trend for outdoor theatres to be constructed in outlying areas where invalids or families with small children who might not otherwise be able to attend a theatre can enjoy these performances, and
 
Whereas it is believed that existing residential concentrations are far enough away so that they will not be adversely affected, and
 
[*633] Whereas it is believed that safety and traffic will not be particularly adversely affected due to the introduction of the new dual highway from Parole to the Crain Highway and eventually to Washington, which will handle most of the through traffic now using Solomons Island Road and Central Avenue, * * *"

   As a result of this action by the Commissioners, the appellees, Lawrence Allen Taylor and Kathleen F. Taylor, his wife, and Arthur Crownover, Jr., and Helen M. Crownover, his wife, owners of residential property directly across the State highways from the rezoned tract and being taxpayers of Anne Arundel County, filed a bill of complaint alleging, for the purposes of this case, the following: the original zoning of appellant's property on June 6, 1950, as [***9]"Agricultural" and the rezoning on September 30, 1952, to "Cottage Residential"; the petition of December 18, 1952, to rezone to "Heavy Commercial"; the hearings before the Commissioners; the protests by the complainants and numerous other property owners; and the rezoning by the Commissioners to "Heavy Commercial".  The Board of Appeals of Anne Arundel County was about to approve a special exception to the zoning regulations to permit the erection of an open air theatre and snack bar. The establishment of this theatre and snack bar in a "Cottage Residential" neighborhood would seriously depreciate the value of complainants' property; would tend to destroy the comfort, wellbeing and property rights of the owners of lots and homes in the aforesaid "Cottage Residential" neighborhood; and would impair and adversely affect the value and marketability of their properties.  The action of the Commissioners was arbitrary, unreasonable and discriminatory without any substantial relation to the public health, safety, morals or general welfare. The topography of the property of the appellant was suitable for residential purposes.  The addition of a "Heavy Commercial" section in the area zoned [***10][*634] as "Cottage Residential" is injurious and detrimental to the public health, safety and welfare and is unnecessary in that community.

   After answer filed and a hearing in open court, the chancellor passed a decree declaring null and void the resolution changing the zoning from "Cottage Residential" to "Heavy Commercial" and issuing an injunction prohibiting the appellant from using its property for any use not classified "Cottage Residential".  From that decree the appellant appeals.

   [**726] There was considerable argument in this Court as to whether it was the duty of the appellant or the appellees to produce at the hearing before the chancellor a transcript of the testimony taken before the Commissioners.  It is not necessary that we pass upon this point or remand the case for that transcript, because it is clear that Mr. Edward Heiselberg, the Planning Administrator for the County and who made the recommendation for the rezoning to "Heavy Commercial", was present at all the hearings before the Commissioners. He testified before the chancellor that there had been no substantial change, from a zoning standpoint, in the area in question here, since he had become the [***11]Planning Administrator in May, 1952.

   In the case of Wakefield v. Kraft, 202 Md. 136, 141-142, it was said: "Where the legislative body of a municipality, under powers granted by the Legislature, has enacted a zoning ordinance, the Court's function in review is restricted and its scope is narrow.  Such an ordinance, an exercise of the police power, enjoys a presumption in favor of its validity.  One attacking it, to be successful, must show affirmatively and clearly that it is arbitrary, capricious, discriminatory or illegal.  This presumption of reasonableness and constitutionality applies to rezoning as well as to original zoning, though not with as great force.  This is so because it is presumed that the original zoning was well planned, and designed to be permanent; it must appear, therefore, that either there was a mistake in the original zoning [*635] or that the character of the neighborhood was changed to an extent which justifies the amendatory action.  N. W. Merchants Term. v. O'Rourke, 191 Md. 171, 191, 60 A. 2d 743; Kracke v. Weinberg, 197 Md. 339, 79 A. 2d 387, and Kinney v. City of Joliet, 411 Ill. 289, 103 N. E. 2d 473. The Court will not substitute[***12] its judgment for that of the legislative body if the question decided was fairly debatable. Zahn v. Board of Public Works, 274 U.S. 325, 47 S. Ct. 594, 71 L. Ed. 1074; Anne Arundel County v. Ward, 186 Md. 330, 46 A. 2d 684, 165 A. L. R. 816; Anne Arundel County v. Snyder, 186 Md. 342, 46 A. 2d 689; Francis v. MacGill, 196 Md. 77, 75 A. 2d 91, 94; and Hoffman v. Mayor & City Council of Baltimore, 197 Md. 294, 79 A. 2d 367." (Italics supplied).

   In Northwest Merchants Terminal v. O'Rourke, supra, 191 Md. 190-191, this Court pointed out that the purposes of the zoning law is, of course, to devote general areas or districts to selected uses.  The whole value of zoning lies in the establishment of more or less permanent districts, well placed and arranged. It was said in that case: "The lower court in its opinion, and plaintiffs in this court, relied largely on Anne Arundel County v. Snyder, 186 Md. 342, 346, 347, 46 A. 2d 689, and cases there cited, as holding that (1) the presumption in favor of the reasonableness of a zoning regulation prevails if the question is 'fairly debatable' and (2) 'a mere intention to use is not enough to establish a non-conforming[***13] use'.  No question of a non-conforming use is now presented, or would be material if the ordinance is invalid as against defendant.  The presumption of reasonableness must be applied to the facts of the particular case.  No doubt it applies to rezoning, as well as to original zoning in the Anne Arundel County cases, but not with the same weight.  Indeed it creates a counter-presumption that zones are 'well planned and arranged' and are to be 'more or less permanent', subject to change only to meet genuine change in conditions." (Italics supplied).  See also Kracke v. Weinberg, 197 Md. 339.
 
   [*636] Assuming, as contended by the appellant, that when the original zoning was adopted on June 6, 1950, the areas being used for "Heavy Commercial" enterprises were zoned "Heavy Commercial"; existing developments were zoned "Residential"; and all other land was zoned "Agricultural", whether or not it was being used for agricultural purposes and that this original zoning as "Agricultural" was more or less perfunctory; we are faced with the proposition that on September 30, 1952, the property here was rezoned from "Agricultural" [**727]to "Cottage Residential".  The rezoning to[***14] "Cottage Residential" created a presumption that it was well planned and arranged, and more or less permanent, subject to change only to meet genuine change in conditions.  However, we find in this case that within a period of less than three months the appellant applied for another rezoning of part of this property to "Heavy Commercial", giving as its only reason that it desired to use the property for the purposes of operating an open air theatre and snack bar. It is not contended that there was any testimony before the Commissioners to show a change in conditions since the rezoning on September 30, 1952; that the population had increased; that the need for outdoor theatres was greater; and that there were more invalids and families with small children, than three months previously.  It is inconceivable that such a change would take place within such a short period of time.  In fact, at the hearing before the chancellor, the Planning Commissioner testified that there had been no substantial change in the neighborhood since May, 1952.  The Planning Commissioner was present at all the hearings before the Commissioners.  There is nothing here to show that the rezoning to "Cottage Residential" [***15] was error or mistake as in Hoffman v. City of Baltimore, 197 Md. 294, supra.  The preamble to the resolution and the personal knowledge of the Commissioners could not be considered as evidence of change.  The power of rezoning cannot be used "to favor".  Baltimore v. Byrd, 191 Md. 632. The Courts review the [*637] action, not the opinion, of the Commissioners.  Williams v. McCardell, 198 Md. 320, 330. The reasonableness of such a resolution is to be determined by the facts from which the conclusion is drawn, rather than from the conclusion itself.  Strain v. Mims, 123 Conn. 275, 193 A.754.  Baltimore v. Byrd, supra. Had this property, with a "Heavy Commercial" district to the north, been originally rezoned from "Agricultural" to "Heavy Commercial", our decision might be different in this case.  However, we cannot ignore a rezoning made six months previously.  Finding there was no change in the character of the neighborhood after the area in dispute was rezoned "Cottage Residential", and no evidence of error or mistake in the rezoning to "Cottage Residential", we must conclude that the finding of the Chancellor was correct.  The decree will be affirmed. [***16]

   Decree affirmed, with costs. 

ELLIOTT v. LARRIMORE et al. 
No. 63, October Term, 1953
 
Court of Appeals of Maryland
 
203 Md. 526; 101 A.2d 817; 1954 Md. LEXIS 346

 January  11, 1954, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  third party, removal, impleaded, right of removal, separate trial, new party, counter-claim, co-defendant, cross-claim, tortfeasors, join, plead, fair and impartial trial, subject matter, occurrence, intervenor, injustice, supplied, struck, amend, oath, pole, General Rules of Practice, appealable order 

COUNSEL: John G. Rouse, Jr., with whom were Rouse & Morton and Louis M. Strauss on the brief, for appellants.

   William Baxter, with whom were Daniel Eidman, III, and Eugene M. Childs, on the brief, for appellees.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*527] [**818] This appeal is from the action of the trial court in denying a suggestion of removal by the original defendants in a tort action, a denial based on the refusal of a third party who had been impleaded to agree to the removal.

   Mildred Larrimore, a passenger in a car owned by Harry Franklin Elliott, which struck a pole of the Consolidated Gas, Electric Light & Power Co. of Baltimore, an appellee, while being driven by his wife, Norma Elliott, sued the Elliotts, the appellants, in the Circuit Court for Anne Arundel County, alleging that she had sustained personal injuries which had been caused by their negligence.  After leave of court had been obtained, the Elliotts filed [***3]a third party complaint against the [*528] Gas Company, alleging that among other things, the Company had negligently erected an unlighted pole in such a manner that part of it had extended into the highway, as a result of which it was struck by the Elliotts' car and was the cause of the accident. Thereafter, the Elliotts filed a suggestion of removal, alleging, under oath, that they could not have a fair and impartial trial in the Circuit Court for Anne Arundel County, and praying the court to remove the case.  The court passed an order of removal. The following day, the Gas Company moved that the Elliotts' suggestion of removal be refused.  Hearing was held on this motion, and fifteen days after the original order, the Court entered a rescinding order, denying the request for removal. This appeal is from the last order.  It is established that where the right is absolute an order granting or denying a suggestion of removal is an appealable order. Griffin v. Leslie, 20 Md. 15, 19; and McMillan v. State, 68 Md. 307.

   The Constitution of Maryland, Section 8 of Article IV, provides that: [**819]". . . upon suggestion in writing under oath of either of the parties [***4] to said proceedings, that such party cannot have a fair and impartial trial in the Court in which the same may be pending, . . .", the court shall order the record to be transmitted for trial in some other court having jurisdiction.  Through the years, the cases have put a gloss on the apparently absolute right of removal. As a result, if there be more than one party on either side of the case, all of the plaintiffs or all of the defendants must join or acquiesce in the application for removal. Taxicab Co. of Balto. v. Emanuel, 125 Md. 246, 265; and Baltimore County v. United Railways Co., 99 Md. 82, 87. Further, there can be but one removal a side, regardless of the number of parties on that side.  State, use of Carroll County v. Gore, 32 Md. 498; State, use of Harvey v. Baltimore & Ohio R. R. Co., 69 Md. 339, 348.

   The Gas Company was brought into the case under the provisions of Rule 4 of the General Rules of Practice [*529] and Procedure, Part 2, III.  This rule is a successor to Section 26 of Article 50 of the Code, 1951 Edition, which was passed as the procedural complement to the substantive right of contribution among tortfeasors given by Sections 20[***5] to 25 of Article 50, although the provisions of the present rule differ in some particulars from those of Section 26.  For a full discussion of the roots and growth of third party practice, see the opinion in Northwestern Nat. Ins. Co. v. Rosoff, 195 Md. 421, 425, et seq., written for the Court by Chief Judge Marbury.  Under the rule as it now stands, a defendant, who claims that a person not a party to the action is or may be liable for all or part of the plaintiff's claim, may move to serve a summons and claim upon such person: ". . . as a third party".  The granting of the motion is in the discretion of the court.  If leave is granted, the defendant causes copies of the third party claim and the previous pleadings to be served on the new party, and so served, the third party makes his defenses in the claim against him and may assert counter-claims against the defendant or cross-claims against other third parties.  The plaintiff or the third party may assert against the other any claim he has which arises out of the transaction or occurrence which is the subject matter of the plaintiff's claim against the defendant.  To such claims, the other party asserts defenses, counter-claims, [***6]and cross-claims. The third party may proceed under the rule against any other person who: ". . . is or may be liable to him for all or any part of any claim made against him in the action." The court may make such orders as it thinks fit to regulate the conduct of the proceedings and to prevent injustice or unnecessary delay or expense.  It may render one or more judgments appropriate to protect the rights of the parties.

    It is obvious that the framers of the Constitution, in providing for removal did not contemplate that there were parties to an action who would not fit neatly into the category of either plaintiff or defendant.  Nevertheless, [*530]it is clear that one who has been impleaded under Rule 4 is a party to the action.  The rule itself designates the newcomer as a party.  The cases support this view of his status.  For example, a next friend, although not technically a party to the case, has been held to be such for the purpose of the right of removal. Deford v. State, use of Keyser, 30 Md. 179, 196. An intervenor who has been admitted by order of Court is a party to the action.  State ex rel. Lebeck v. Chavez, (New Mexico) 113 P. 2d 179, 185. An impleaded[***7] third party is certainly an involuntary intervenor. It has been held explicitly that a third party defendant under the New York practice is a "party".  Portney v. United Engineers & Constructors, Inc., 82 N. Y. S. 2d 464; and Reisen v. Pardes, 98 N. Y. S. 2d 276.

   There remains, then, the necessity to determine on which side of a case a third party is to be placed in relation to the right of removal. There are many indications that one who has been impleaded by [**820] a defendant is generally considered as substantially in the status of a co-defendant. Section 26 of Article 50 of the Code provided that the impleaded one be called "the third party defendant".  Rule 4 does not use the term but merely calls him a "third party".  Under Section 26, the original plaintiff was directed to amend his pleadings to assert against the third party defendant any claims he might have asserted if the new party had originally been sued as a defendant, and, consequently, the third party defendant was bound by the adjudication of the liability of the original defendant to the plaintiff, as well as of his own liability to the plaintiff and original defendant.  In considering the effect [***8]of Section 26, Judge Marbury, in Brotman v. McNamara, 181 Md. 224, 231, in a dissenting opinion in which Chief Judge Bond joined, said this: "There does not seem to be any doubt that under the joint tortfeasors law the intention is to have the jury pass upon the liabilities of all parties in one case.  If the plaintiff does not put them all in, the defendant can do so, and [*531] in such case the same result will be reached as if the added parties had originally been made defendants.  The fact that the plaintiff did not then amend his declaration cannot prejudice the rights of the defendants to have the others in." (Emphasis supplied.) In Northwestern Nat. Ins. Co. v. Rosoff, supra, where the procedure was under rule 4, Judge Marbury said this for the Court: "Where a third party is impleaded, he is in no worse situation than if he had been originally sued.  Nothing final has been decided against him.  He still has the opportunity to try his case, and if it goes against him, he can then appeal.  No rights of the original plaintiff have been interfered with, because the result is only that he has another defendant in the case, against whom he may recover." (Emphasis[***9] supplied.)

   Rule 4, in addition to the provisions to which we have averted, uses language which makes it plain that its difference from Section 26 does not alter substantially the status of an impleaded party.  Under the rule, the plaintiff is not required to plead against the third party, although he may do so.  Yet, the conduct of the case and its outcome are, for all practical purposes, the same as if the third party was an original defendant.  Paragraph (b) provides: "The third party may also assert against the plaintiff on behalf of the defendant any defenses which the defendant has to the plaintiff's claim." Paragraph (c) provides: "The plaintiff may not assert against the third party in a separate action, instituted after the third party is impleaded, any claim which arises out of the transaction or occurrence that is the subject matter of his claim against the defendant in the pending action." Paragraph (d), dealing with the conduct of the proceedings, provides that: "Unless the court orders otherwise, the adjudication of a defendant's liability to the plaintiff shall be res adjudicata as to the third party as well as to the plaintiff and defendant."

   Many variations may[***10] occur in a case under the flexibility provided for by Rule 4.  The plaintiff, after the third party has come into the case, may plead against [*532] him and certainly then, the status of the new party is not distinguishable from that he would have occupied had he been originally sued.  There may occur what has happened in this case.  The plaintiff may elect to proceed only against the original defendants.  Nevertheless, under the provisions we have quoted, he is thereafter precluded from suing the third party as to any matter which he could have asserted against him in the pending case, and unless the court orders otherwise, the adjudication which emerges from the trial is binding on both the plaintiff and the third party. For his protection, the third party may utilize against the plaintiff the defenses available to the original defendants.  We think for the purpose of removal, an impleaded third party in the situation before us in this record, must be classified as a co-defendant. Authority is meager on the question but such cases as are available support this view.  See Cowie v. Strohmeyer, et al. [**821] (Wisc.) 136 N. W. 956, 977; and Hubbard v. Mt. Raymond Mining [***11]  Co. (Calif.) 92 F. 2d 411. In Portney v. United Engineers & Constructors, Inc., supra, the Appellate Division of New York held that the original defendant and an impleaded third party were "parties on the same side" within the meaning of the Civil Practice Act of New York.  Rule 536 of the Rules of the Supreme Bench of Baltimore City includes a third party in the category of a defendant for the purpose of the election of trial by jury.  The appellant does not question the appellee's assertion, which we believe to be accurate, that the consistent and unchallenged practice has been to regard the third party as a defendant for the purpose of striking the jury panel, the same division or allocation of strikes being made between the defendant and the third party, as in the case of multiple original defendants.

   The appellants say that the Elliotts and the Gas Company cannot be regarded as co-defendants because their interests: ". . . are not only dissimilar but hostile".  This may well be true; yet it is also true often in a case where more than one defendant is sued by a plaintiff.  Often [*533] the principal contest as to responsibility is between the defendants, and a particular [***12]defendant may often have an interest in common with the plaintiff in establishing another defendant's fault.  Here the allegations of the pleadings make out the common case of concurrent negligence of tortfeasors.

   In any event, the rules give the trial court full power to prevent injustice and to facilitate order and justice.  There may be cases in which the judgment of the trial court is that the application to implead a third party should be denied.  Northwestern Nat. Ins. Co. v. Rosoff, supra. There are other cases in which the entry of the third party brings before the court a separate cause of action which should be tried as such.  See discussion as to this in the opinion of Judge Chesnut in Brown v. Hecht Co., (D. Ct. Md.) 78 F. Supp. 540. In Chevassus v. Harley, 8 F. R. D. 410, the court severed one of the claims from the others because it had developed that one of the original plaintiffs would become a third party defendant.  A separate trial order was approved in Shippers Pre-Cooling Service v. Macks, 181 F. 2d 510. Rule 5 of the General Rules of Practice and Procedure, Part 2, III, authorizes the Maryland courts to order a separate trial of any claim, counter-claim, [***13] cross-claim, or third party claim, or of any separate issue.  Thus, under the power given by Rules 4 and 5, the judge may order a separate trial or exercise substantially the same authority he has as to a consolidated trial or a joint hearing.

   We need not and do not here consider or pass upon the right of a third party or a third party plaintiff to remove the case where a separate trial has been ordered.  The early Maryland cases gave as one of the reasons why there could be but one removal for each side where there were multiple parties on a side, that there was no right of severance in a civil cause.  State v. Gore, supra; and Cooke v. Cooke, 41 Md. 362. It may well be that the very wide discretion and power of regulation of the proceedings given the trial courts may obviate for a [*534] long time the necessity of any decision on the question which we do not decide.  Northwestern Nat. Ins. Co. v. Rosoff, supra; cf. Wright v. Baker, 197 Md. 315, 79 A. 2d 159.

   All that we do decide here is that: (a) if the plaintiff pleads against the third party; or, (b) there has been no order of separation, the third party must be regarded as a defendant for the purpose of[***14] the right of removal.

   Order affirmed, with costs. 

TAMBURO v. MILLER et al.; MILLER et al. v. TAMBURO (TwoAppeals in One Record) 
No. 37, October Term, 1953
 
Court of Appeals of Maryland
 
203 Md. 329; 100 A.2d 818; 1953 Md. LEXIS 266

 December  8, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments reversed, and case remanded, each side to pay its costs.

CORE TERMS:  fence, hedge, boathouse, trespass, feet, adverse possession, barbed wire, plat, division line, ownership, visible, strands, deed, enclosure, boundary line, inadvertence, ignorance, nine-tenths, immaterial, surveyor, hostile, build, admit, cloud, true boundary line, pine tree, notorious, projected, occupied, erected

COUNSEL: Charles J. Stinchcomb, with whom were S. Alfred Mund and Albert J. Goodman on the brief, for appellant and cross-appellee.

   J. Royal Tippett, Jr., with whom were Winson G. Gott, Jr., and Hinkley & Singley, on the brief, for appellees and cross-appellants.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*331] [**819] The appellees and cross-appellants, members of the Miller family, filed suit in the Circuit Court for Anne Arundel County in trespass, q.c.f., and in response, the appellant and cross-appellee, Tamburo, filed a counter-claim, also in trespass q.c.f.  The court heard the case without a jury and gave judgment for the defendants and cross-defendants.

   The dispute involves the location of the true boundary line between lot 32, owned by Tamburo, and lot 33, owned by the Millers, [***4] in Block A of a development in Anne Arundel County known as Manhattan Beach.  These adjoining lots run from Stinchcomb Road to Cypress Creek.  When Manhattan Beach was prepared for sales in lots, a plat, based upon a survey by J. Spence Howard, was prepared, showing the lines of the various lots in the development.  The developer conveyed the lots by reference to lot number on the plat, there being no metes and bounds description in the various deeds. The lots here involved, and adjacent lots, are shown on the plat as binding on Stinchcomb Road for a distance of fifty feet each, with parallel side lines running to Cypress Creek. No compass courses are shown for these side lines.  Tamburo obtained a deed for lot 32 in 1923, although under a contract of sale, he entered into possession in 1920 and proceeded to clear his lot and erect a house.  Also, he then placed a barbed wire fence, consisting of three strands along the side lines and road frontage of the lot, connecting four wooden pegs which he took to be the boundary markers of his lot.  He says that the barbed wire fence ran from fence post to fence post on the line between lots 32 and 33 and was attached at the shore line to[***5] a small pine tree. Soon after the fence was put up, Tamburo planted a hedge all along the fence lines.  About 1939, he caused a boat house to be erected at the Creek, extending to the small pine tree, claimed by Tamburo to be at about the lot line, or eight and nine-tenths feet into lot 33, if the Miller claim is correct.

   [*332] The Millers acquired lot 34 in 1924 and lot 33 in 1929.  Irvin Miller, the son, testified that they knew of the barbed wire fence from 1924 on, describing it as "haphazardly" stretched from tree to tree, partly on one side of the line and partly on the other, "apparently denoting some boundary line". For the last fifteen years, that is, since 1937, Irvin Miller says the three strands of barbed wire have been on the ground.  He admitted, on cross-examination, that there was a hedge along the fence line and that a Mr. Smith, who had been engaged in 1951 to put in fence posts for the Millers, had pulled some of it up.  In 1938 or 1939 when Tamburo had his tenant construct the boathouse, the Millers protested that part of it was on their lot but did nothing more until 1950, when Benjamin Miller, the father, first wrote Tamburo, reminding him of this protest, [***6] saying that a recent survey showed that the boathouse was on lot 33 and requesting that: "that portion of your boat house situated on my land be removed."

   The survey to which Benjamin Miller referred was made for him by James E. Hicks.  Hicks described the survey as one which was difficult, but testified clearly and persuasively that he was confident that he had determined the true boundary line after having surveyed lots 29 to 35.  He determined that the true division line between lots 32 and 33 was as shown on the plat of Manhattan Beach, and thus found an encroachment, under the Tamburo claim, of eight and nine-tenths feet on the Miller property.  The Hicks survey was made in June, 1950 and checked in 1952.  On the first occasion, he found the three strands of barbed wire lying on the ground, and on both visits he found a hedge, although he says it was spotted and more underbrush than hedge.

   After the Hicks survey and the refusal of Tamburo to respond to letters, the Millers employed Smith to build a fence along the line determined by Hicks to be the true division line. Four steel posts were put in the ground by Smith. Tamburo immediately either pulled or dug them out.

   [*333] [***7] J. Revell Carr, surveyor of Anne Arundel County, was employed in the fall of 1952 by Tamburo to make a survey.  He [**820] testified that he was unable to make an accurate determination of the true line because of the surveying uncertainties and difficulties inherent in the Manhattan Beach development.  He did make a location survey showing what actually was on the ground.  As he describes it: "I located the hedge which I was asked to do.  I located the hedge on the northeast boundary.  I located the hedge and fence on the southeast boundary.  A concrete post there at the Creek, and a pine tree with wire attached to it, the boathouse and the machine shop, I located that with reference to the hedge, and with reference to the line, new line, of fence posts." He says further, in speaking of the line between lots 32 and 33, that: ". . . continuing on down towards the Creek, there was evidence of a hedge, part of which has been demolished, and portions of which now stand, continuing on down . . . There are three portions of the hedge which is still visible, but which remains two, three or four feet above the ground." Carr says that if the hedge line is projected to the boathouse, it[***8] would show that about three feet of the boathouse is over on lot 33.  In other words, the combined testimony of the two surveyors shows that eight and nine-tenths feet of the boathouse are on lot 33 if the Hicks line is the true division line, and three feet are on lot 33 if the hedge line is the present division line. The plat prepared by Carr shows the Hicks line and the hedge line both projected to the Creek.  Tamburo's present claim is that the hedge line is not the old fence line which ran to the pine true at the corner of the boathouse, although he testified, without reservation, that the hedge had been planted directly under the fence line at all places, and that he had instructed his tenant in 1939 to build the boathouse two or three feet inside his line.

   The appellant claimed below, and claims here, that the Millers did not prove their title.  However, two lawyers who had gone into the chain of title testified [*334] that both Tamburo and the predecessor in title to the grantors in the deed to the Millers of lot 33, took title from the same grantor, the developer of Manhattan Beach.  The trial court held that the Millers had brought the wrong action and should have[***9] proceeded in ejectment.  It determined, however, that: ". . . the evidence offered is clearly indicative of the fact that the boathouse encroaches on the property of the plaintiffs, and in a proper action, the plaintiffs would be entitled to a verdict." The real cloud on the title of the Millers and the weakness in their title actually relied on by the appellant, is that lot 33 was sold by a former County Treasurer to the County Commissioners of Anne Arundel County in a tax sale in 1930 because of default by a predecessor in title to the plaintiffs, in the payment of County taxes for the year 1927.  The court held the tax sale to be a nullity but to constitute a technical cloud on the title which should be removed by appropriate proceedings.  At the argument of the case, we were told that the County Commissioners of Anne Arundel County had given a deed to the Millers which removed this cloud on the title, and the parties later furnished us with a certified copy of that deed. Since the case must be remanded, we shall assume the title of the Millers to be good and pass to a consideration of the holding of the trial court that trespass q.c.f. was not the proper action.  The cases of [***10] West v. Pusey, 113 Md. 569; Giles v. diRobbio, 186 Md. 258, 269; and Corey v. Carback, 201 Md. 389, 94 A. 2d 629, show clearly that trespass was available to the Millers to test title under the facts which confronted them. In McAuliffe v. Lerch, 189 Md. 672, relied on by the lower court in holding that trespass was not a proper remedy, no title was established to the disputed area and neither actual nor constructive possession shown.  Judge Marbury pointed out for the court that: "If, however, the plaintiff has a paper title to the whole tract and is in actual possession of part of it, his constructive possession of the remainder is presumed." [*335] The quoted language describes the situation of the Millers in this case.

   We come then to the conclusion that the Millers hold the title to lot 33, as shown on the plat of Manhattan Beach, and as determined [**821] by the surveyor, Hicks, unless Tamburo has title by adverse possession of the triangle, whose apex is the admittedly correct division marker at Stinchcomb Road and whose long sides are the true division line between lots 32 and 33 and the fence and hedge line.  Does the evidence show that Tamburo for[***11] the necessary twenty continuous years had actual, hostile and notorious possession of that pie-shaped piece of land under a claim of title or ownership which was adverse?  If so, he became the owner.  Gee v. Ghee, 194 Md. 328. The lower court held that: "The testimony of Mr. Tamburo is not convincing.  The stringing of several strands of wire along makeshift posts, and attaching it to some trees somewhere near the correct boundary line, and the spotty hedges, are not such acts of adverse user as to make out a case of title by adverse possession." We think that the evidence shows a user by Tamburo which meets the requirements of obtention of title by adverse possession.

   The earliest cases on adverse possession insisted strictly on actual and continuous enclosure for the necessary period in order to establish an adverse title.  Casey's Lessee v. Inloes, 1 Gill, 430; and Armstrong v. Risteau's Lessee , 5 Md. 256. However, by Chapter 177 of the Acts of 1852 (now codified as Section 84 of Article 75 of the Annotated Code of Maryland, 1951 Edition), the Legislature declared that actual enclosure for the statutory period was not necessary to prove title, but that other acts of[***12] exclusive user and ownership may be shown as evidence of title.  See Warner v. Hardy, 6 Md. 525, 539. As was said in Storr v. James, 84 Md. 282 at 290: "An actual enclosure though not necessary to prove possession . . . is, when erected by a party relying on a title by prescription, some evidence tending to show the character of his claim.  It is his own affirmative [*336] act . . . It defines the extent of his claim and marks the outlines of his actual holdings." Although this case is different on the facts because the fence was within the property lines for the purpose of the owner and not for the purpose of granting the adjoining property owner additional land, the test set out therein is sound.

   It has been said often in the earlier cases that where a land owner extends his fence, through inadvertence, ignorance or mistake, as to the location of the true boundary line, so as to embrace the land of a neighbor, but with no intention of claiming the area thus enclosed, adverse possession cannot be established because the holding of the extended area is neither adverse nor hostile to the true owner.  See, for example, Davis v. Furlow's Lessee, 27 Md. 536. The modern[***13] trend and the better rule is that where the visible boundaries have existed for the period set forth in the Statute of Limitations, title will vest in the adverse possessor where there is evidence of unequivocal acts of ownership. In this view it is immaterial that the holder supposed the visible boundary to be correct or, in other words, the fact that the possession was due to inadvertence, ignorance, or mistake, is entirely immaterial. See Sadtler v. The Peabody Heights Company, 66 Md. 1; Rother v. Sharp St. Station Methodist Church, 85 Md. 528, 530; and Hiss v. McCabe, 45 Md. 77. In Jacobs v. Disharoon, 113 Md. 92, the court held that one who continuously asserts ownership within an enclosure for more than twenty years in exclusive, notorious and actual hostile possession, would not be required to surrender the title by adverse possession merely because of his possession by mistake.  The distinction seems to be that if the limits of the occupation be fixed with the intention of claiming them as the boundary line, the statute runs; but if the occupation and delineation of the boundaries appear to be merely provisional, with the intent to claim them as boundaries, [***14] if they are found to be proper boundaries, then the statute does not run.  See 3 Washburn, Real [*337] Property, 6th Ed., Section 1968; and Tiffany, Real Property, 3rd Ed., Vol. 4, Section 1159.

   It is clear in this case that Tamburo occupied the area which he had fenced in with intent to claim it all as his, the fences [**822] to be the boundary lines.  His possession was exclusive, notorious, actual and hostile. The Millers admit that they knew of the fence, which was apparently intended to be a boundary, from 1924 on, at least until 1937.  They admit that there was a hedge along the fence lines.  They admit that they did nothing as to the boathouse which was built on the land claimed, except to make a protest which was not followed up.  Whatever may have been the effect of permitting the barbed wire fence to rust out and fall to the ground, it cannot be said to evidence abandonment by Tamburo of his claim to the area he had originally taken as his own.  The evidence makes it clear that the hedge supplemented the fences along all of their course.  Tamburo says that it was six feet high in some places, smaller in others.  Mrs. Tamburo says that it was as high as[***15] five feet. It was in existence and clearly defined from at least 1921 to 1952.  Carr said that in 1952 it was two, three and four feet high in places.  The fact that it was spotty does not weaken its effect as evidence of a claim of right to the area it enclosed, particularly since Irvin Miller testified that an agent of the Millers had pulled part of it up.  We think that the erection of the barbed wire strands, the planting and continued presence of the hedge, and the building of the boathouse on the part of the ground claimed about the time the barbed wire is said to have fallen down to the ground, add up to obvious and actual notice to the Millers and the world that Tamburo was claiming ownership of the pie-shaped piece of land involved in the dispute, and that this claim and notice existed for more than twenty years continuously.  Considering the character and use of the lot in question, there is little else that could have been done to show evidence more unequivocably of a claim of full ownership to the hedged-in [*338]area.  In our view, it is enough.  Cf. Bloodsworth v. Murray, 138 Md. 631. We find, however, that the limit of the claim by Tamburo, which the evidence[***16] substantiates, was along the line shown by the surveyor, Carr, on his plat as the hedge line projected, so that approximately three feet of the boathouse built by Tamburo extended over the line into lot 33 and constitutes a trespass to this extent on the land of the Millers.  Because of this, the Millers are entitled to judgment.  It follows that Tamburo has title by adverse possession to some five and nine-tenths feet, at the Creek, of the original lot 33.  Jacobs v. Disharoon, supra. Therefore, the Millers committed a trespass on his land when they sent Smith, their agent, on it to build a fence. The case will be remanded so that the question of damages, if any, to which Tamburo and the Millers are entitled, respectively, may be ascertained and proper judgments entered.

   Judgments reversed, and case remanded, each side to pay its costs. 

ALLISON v. STATE 
No. 164, October Term, 1952
 
Court of Appeals of Maryland
 
203 Md. 1; 98 A.2d 273; 1953 Md. LEXIS 233

 July  2, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson and Clark, JJ.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  murder, Criminal Law, manslaughter, pregnancy, good character, certificate, woman, unintentional killing, state of mind, pregnant, backing, scene, inn, hypothetical question, emotionally unstable, reckless disregard, direct examination, legally sufficient, pregnant women, good conduct, right front, right hand, human life, textbook, impressionable, obstetrician, non-pregnant, excitability, admissible, hemorrhage

COUNSEL: James C. Morton, Jr., with whom were Edward S. Digges and Oscar Duley on the brief, for the appellant.

   Ambrose T. Hartman, Assistant Attorney General, with whom were Edward D. E. Rollins, Attorney General, C. Osborne Duvall, State's Attorney for Anne Arundel County, and Robert T. Barbour, State's Attorney for Charles County, on the brief, for the appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*3] [**274] Homer A. Allison, a staff sergeant in the Air Force stationed at Andrews Air Force Base and residing at Clinton, Maryland, with his wife and three small children, was indicted in Charles County for the murder of his wife.  The case was removed[***4] to Anne Arundel County where he was tried before a jury and acquitted of murder but convicted of manslaughter and sentenced to two years in the Maryland House of Correction.  The appeal challenges certain rulings on the evidence and the legal sufficiency of the evidence to support the verdict.

    On September 6, 1952, Allison and his wife, who was seven months pregnant, left their children with a baby-sitter and drove in his car to an inn in St. Mary's County.  Two young ladies, friends and neighbors of the Allisons, accompanied them.  It was Saturday night and they drank and danced.  Allison had four or five highballs; Mrs. Allison had three drinks.  Some time after midnight, when Mrs. Allison returned from making a telephone call to her home, she saw Allison with his arms around the shoulders of the two girls and made a scene. She slapped him several times, said he was making a fool of himself, and demanded that he take her home.  The young ladies remained at the inn; Allison drove off with his wife.  According to Allison she continued to slap and upbraid him in the car.  He had a black eye the following day.

   In the course of the ride, Mrs. Allison in some way fell from the car while [***5]it was travelling at the rate of over fifty miles an hour.  She died some hours later as the result of injuries sustained, at a hospital in LePlata where he took her.  Allison made a number of inconsistent statements as to how she got out of the car.  He told two witnesses at the scene of the accident that she "fell out".  He told the police officers that she jumped out because she was angry.  He told attendants at the hospital that she just disappeared and he did not know how she got out of the car.  The [*4] witness Hamby, who assisted in carrying her into the hospital, testified that Allison told him "we were fighting -- I either pushed her or kicked her out of the car." Allison was also vague in his recollection of other details.  For example, he stated that there were no witnesses at the scene of the accident.  He could not explain certain damage to the car, including damage to the right front door which prevented it from opening, and denied that he had been in an accident on the way to the hospital.  It was shown, however, that in fact he had collided with the rear of another car, which may have accounted for the damage.

   The witnesses Posey and Farrell testified that they[***6] were driving behind Allison when they suddenly saw a body lying in the right hand lane with its head toward the center, and saw Allison stopping some distance ahead.  They swerved around the body and stopped on the extreme left.  They saw Allison backing up rapidly in the right hand lane.  They got out and then saw him standing over the body which was in front of his headlights.  They assisted him in placing the body in the rear seat of his car and had a conversation about the nearest hospital.  While they did not see Allison's car pass over the prostrate body, there is a strong inference that it did.  There was police and medical testimony that human blood and hair were found on the underbody of the car, and blood on the right front tire and the bumper.  Allison admitted that he continued backing until his wife's body was visible in his headlights.  He told one witness that in backing he "heard a slight bump".  He admitted on the stand that he may have backed over her, he could not say.  The cause of death was first found by the medical examiners to have been a cerebral hemorrhage due to a fractured skull, but a post-mortem examination showed extensive hemorrhages, in the vicinity[***7] of the uterus, that were a contributing cause of death. The medical witnesses could not say definitely that the tires passed over the body, [*5] but there was testimony to bruises on the legs above the knees.

   [**275] We think there was legally sufficient evidence to warrant the submission of the case to the jury.  If Hamby's testimony as to Allison's admission to him is to be believed, Allison's push or kick was the cause of her fall.  The weight of this testimony and its credibility were for the jury.  Cf. Terry v. O'Neal, 194 Md. 680, 689, 72 A. 2d 26. See also Edwards v. State, 198 Md. 132, 157-158, 83 A. 2d 578, 581, Auchincloss v. State, 200 Md. 310, 316, 89 A. 2d 605, 607, and Chisley v. State, 202 Md. 87, 92, 95 A. 2d 577, 579. The manner in which Allison operated his car after the fall was also a circumstance to be considered, as bearing upon the recklessness of his conduct and his state of mind. The testimony is clear that Mrs. Allison was not dead at that time, but died some hours later at the hospital.  The jury found him not guilty of murder, but guilty of manslaughter. Malice is, of course, an essential ingredient of murder, but even an unintentional[***8] killing may constitute the crime of manslaughter if it is due to a wanton and reckless disregard of human life. Cf. Hughes v. State, 198 Md. 424, 432, 84 A. 2d 419, 422, and Neusbaum v. State, 156 Md. 149, 155, 143 A. 872. See also Barbeau v. United States, 9 Cir., 193 F. 2d 945.

   Defense counsel contend that the court improperly limited their examination of witnesses to show an abnormal state of mind on the part of Mrs. Allison on account of her pregnancy. We do not find error in this respect.  The witness Catherine Goodin, a neighbor, was permitted to testify that Mrs. Allison was "sort of upset", largely because of an unsuccessful hernia operation she had had just prior to her pregnancy, but that they were a happy couple.  Allison testified to the same effect.  He said she was nervous and irritable because of the incident at the inn, but they had had no previous quarrel, just normal arguments.  He knew of no reason why she should leave the car.  He denied that she had ever threatened to take her life, or had [*6] otherwise shown any violence or suicidal tendencies.  There was no proffer to show anything of that sort.

   An obstetrician was called on behalf of the[***9] defense and he was asked whether he agreed with certain statements, read to the jury from a text book on obstetrics, to the effect that pregnant women are impressionable and subject to varying moods or heights of excitability. He was also asked whether it had been his experience that "a woman during pregnancy is more apt to be emotionally unstable than the same woman during her non-pregnant period." Objections to these questions were sustained.  We find no error.  Medical text books are not admissible as such or in the direct examination of experts.  Davis v. State, 38 Md. 15, 37; Eckels v. Cornell Economizer Co., 119 Md. 107, 114, 86 A. 38. See also note 65 A. L. R. 1102. Both questions were too general.  Of course, an expert may be asked to give his opinion on facts that he has heard testified to, or on a hypothetical question based on evidence in the case.  Cf. Damm v. State, 128 Md. 665, 673, 97 A. 645, and Newkirk v. State, 134 Md. 310, 317, 106 A. 694. But it is well settled that the opinion must be based on the facts in the case.  Clautice v. Murphy, 180 Md. 558, 567, 26 A. 2d 406; Mathiesen Alkali Works v. Redden, 177 Md. 560, 565, 10 A. 2d 699.

   Defense[***10] counsel finally contend that the court erred in excluding the official service record of the accused in the Air Force.  They state that they were prepared to show that he was inducted into service in 1943, served overseas as a tail-gunner in a B-29 bomber with thirty-five missions, received an honorable discharge in 1945, re-enlisted in 1946, and has been a member of the Air Force ever since.  Also that he received the D. F. C. and other decorations, including one for serving in the Berlin Air-lift and a good conduct medal.  As a matter of fact they asked the accused when he took the stand, without objection, about all of these matters, except the list of his decorations.  Nor was the service record ever offered in evidence.  The inquiry on which [*7] the court ruled was addressed to a Major in the Air Force and sought to elicit: "what your records reveal as to the good conduct of Homer Allison." In short, they sought to prove good character by recourse to details in the service record.

   [**276] The appellant relies upon a statement in 1 Wigmore, Evidence (3d Ed.), Sec. 59, that a certificate of honorable discharge "is virtually a summary of his entire service conduct, [***11] both as a man and as a soldier.  * * * it implies a career successfully negativing all of the more common traits involved in criminal charges.  In this respect it is therefore more comprehensive than the ordinary community-repute to general good character, and is entitled to be used on behalf of an accused on virtually any specific charge of serious crime."

   There is virtually no support for Wigmore's doctrine in the decided cases. It may be admitted that the reasons assigned for exclusion are not always satisfactory.  It is clear that a service record should not be excluded under the hearsay rule, for it is an official record made in the regular course of business.  5 Wigmore, Evidence (3d Ed.), Sec. 1675(a).  Thus, where it became material to show the defendant's familiarity with weapons, a discharge certificate showing he had qualified as a marksman was held properly admitted. Commonwealth v. Steele, 362 Pa. 427, 66 A. 2d 825. It may also be admitted that particular instances of good conduct, or a summary leading to an honorable discharge, may have logical relevancy, despite some expressions to the contrary. Cf. Cohen v. State, 173 Md. 216, 229, 195 A. 532, 196 A. [***12] 819, and Hodge v. United States, 13 F. 2d 596 (C. C. A. 6th).  But the help to be gained by knowledge of a man's background must always be balanced against the misleading effect of collateral issues.  Moreover, Wigmore's doctrine seems inconsistent with the established Maryland rule that character witnesses called by the defense can testify only to general reputation, although this may be tested in cross-examination by reference to particular reputed [*8] acts, Comi v. State, 202 Md. 472, 97 A. 2d 129, and that the reputation must be limited to the neighborhood where the accused resides, and not where he is employed.  Markley v. State, 173 Md. 309, 320, 196 A. 95, and cases cited.  See also Berger v. State, 179 Md. 410, 414, 20 A. 2d 146, and Bonaparte v. Thayer, 95 Md. 548, 52 A. 496. Wigmore is consistent in that he strongly condemns this limitation.  5 Wigmore, Evidence (3d Ed.), Sec. 1616.

   The cases in other jurisdictions almost uniformly hold that good character may not be shown by a service record or certificate of honorable discharge.  See State v. Sbrilli, 136 N. J. L. 66, 54 A. 2d 221; Ridgell v. United States, D. C. Munn. App., 54 A. [***13] 2d 679; Hoke v. Atlantic Greyhound Corp., 227 N. C. 412, 42 S. E. 2d 593; Cox v. State, 31 S. 2d 378, 33 Ala. App. 192; Ray v. State, 159 Fla. 101, 31 S. 2d 156; State v. Stoller, 107 Utah 429, 154 P. 2d 649; State v. Taylor, 293 Mo. 210, 238 S. W. 489. See also notes 172 A. L. R. 729, and 9 A. L. R. 2d 606. In Timmins v. Hale, 122 Or. 24, 256 P. 770, while the court cited Wigmore's view with apparent approval, the holding was that the admission of a certificate of honorable discharge was not prejudicial error.  We find no error in the ruling in the case at bar.

   Judgment affirmed, with costs. 

BRADLEY et al. v. CORNWALL et al. 
No. 175, October Term, 1952
 
Court of Appeals of Maryland
 
203 Md. 28; 98 A.2d 280; 1953 Md. LEXIS 236

 July  2, 1953, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing, Filed by Appellees August 1, 1953, Denied October 6, 1953.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, and case remanded with directions to amend the decree by allowance of a lien, as above indicated; costs to the appellees.

CORE TERMS:  deed, strip, plat, river, conveyed, front, water, sea wall, quit-claim, disputed, melioration, spent, edge, dots, waterfront, extending, convey, sister, fill, eastern boundary, remained silent, adverse claims, western line, west line, neighbors, laches, daughter, diagram, outline, doctor

COUNSEL: Eugene M. Childs and Le Roy Bald, with whom were Childs and Bald on the brief, for appellants.

   Ridgely P. Melvin, Jr., with whom were McWilliams, Evans and Melvin on the brief, for appellees.

JUDGES: [***4]

   Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Sobeloff, C. J., delivered the opinion of the Court.

OPINIONBY: SOBELOFF

OPINION: [*30] [**281] Neighbors at Shady Side on the south shore of West River are here contesting over a narrow strip of waterfront land.

   For clarity the diagram below is included, as it reproduces a portion of a plat prepared in 1925 by Edward Hall, Jr., surveyor.  The plat is recorded among the Land Records of Anne Arundel County and all the deeds pertinent to this case make reference to it.

   [SEE ILLUSTRATION IN ORIGINAL]

   [*31] The precise subject matter of the controversy is the strip bounded on the north by the water's edge and on the south by the northernmost line of lots 3 and 4.  Not involved in the dispute is any land west of lot 4 or its westernmost line if extended to the water; also not involved is the land east of the western line of lot 2 or the extension of that line to the water's edge.

   The appellants are Miss Margaret M. Bradley, record owner of lots 1 and 2, who is said to hold title for herself and her brother, Dr. James F. Bradley. The appellees are Ernest S. Cornwall and his wife, owners of lots 3 and 4. [***5]

   Both parties derive title under mesne deeds from the original owners, Louis A. Woodfield and Bertha Woodfield, his wife, the grandparents of Mrs. Cornwall. Lots 1 and 2 have been in the hands of several owners between the Woodfields and the Bradleys, and lots 3 and 4 passed out of the Woodfield family and back again.

   It is undisputed that, notwithstanding the north line of lots 1 and 2 appearing on the plat, the deed to Miss Bradley in 1945 specifically included the land lying between these lots and the river. The deed runs to the low water mark of West River.

   [**282] It is equally clear that the appellees, the Cornwalls, were originally granted lots 3 and 4, only to the line shown on the plat as the northern line of their lots.  Shortly before the suit was begun by the appellees in 1952, however, they obtained a quit-claim deed from Mrs. Woodfield, who had been widowed in 1939, for that portion of the strip which lies opposite lots 3 and 4, thus extending these lots to the water.

   But the Bradleys had previously, in 1945, purchased from Mrs. Woodfield the area called the "Grove" and she conveyed it to them in a deed that referred to the plat but gave no description by[***6] metes and bounds, courses and distances.  There is nothing in the deed or in the plat that gives any indication as to the precise acreage intended to be conveyed. The present dispute arises because the Bradleys claim that the "Grove" [*32] included not only the land that adjoins lot 4 on the west but also the land in controversy, on the theory that the "Grove" is L-shaped and includes the entire strip along the river's edge lying between lots 3 and 4 and the water.

   It is the Bradleys' contention that the quit-claim deed made by Mrs. Woodfield to her granddaughter, Mrs. Cornwall, and to Mr. Cornwall, conveyed nothing for the grantor had already disposed of the land opposite lots 3 and 4 to Miss Bradley as part of the "Grove".

   We give this simplified, perhaps over-simplified, statement of the nature of the case, without setting forth the intermediate conveyances, because we think this is sufficiently accurate for present purposes and preferable to a detailed recital of these instruments which would unnecessarily complicate the story and would serve no useful purpose.  We shall, however, refer later to such material in these documents as becomes pertinent.
 
   The Cornwalls brought[***7] suit in equity against the Bradleys to obtain a construction of the deed to the "Grove", and to obtain a determination that the deed did not transfer the disputed land as part of the "Grove" and that it is theirs under the quit-claim deed made to them by Mrs. Woodfield in 1952.  In the alternative, if the Court should disagree with their interpretation as to the extent of the "Grove" and hold that the deed to the Bradleys did legally convey the strip of shore land in front of lots 3 and 4, then the appellees sought reformation of the deed so as to make it conform to the claimed intention of the Woodfields to convey nothing east of the extension of the western outline of lot 4.

   It was testified by Mrs. Woodfield that the strip lying between the four lots and the river was laid out to serve as a road for those purchasing lots in the development.  Apparently the "Grove" was originally intended by the Woodfields to be used as a common; but this intention was never carried out in any way and was completely abandoned when Mrs. Woodfield sold the [*33] "Grove" to the Bradleys in 1945.  It seems that no lots other than 1 to 4 had been sold in the subdivision.

   Before the Bradleys' purchase[***8] a sea wall was erected in front of lots 1 and 2.  There was no sea wall in front of lots 3 and 4.  Shortly after the Bradleys purchased the "Grove" their contractor constructed a sea wall along the river shore from the west line of the "Grove" (or rather an extension of that line,) and the wall ran easterly until it reached a point opposite the west line of lot 4, when it turned at a right angle.  The Cornwalls point to this as evidence that the Bradleys must have realized that the "Grove" did not include the strip in front of lots 3 and 4, as now claimed, and that the Bradleys built the wall to serve the "Grove" property exclusive of the strip in front of lots 3 and 4.

   Dr. Bradley testified that the turn in the direction of the sea wall was due to the contractor's misunderstanding of his instructions, and that his orders were to connect the west line of the "Grove" with the sea wall in front of lots 1 and 2 so as to enclose the strip opposite lots 3 and 4.  After some delay the wall was completed in 1949 so that it then ran continuously along the river in front of the "Grove" and the four numbered lots.  Then in 1950, over the objection of Mrs. Hallock (who is the daughter of Mrs. [***9] Woodfield and the mother of Mrs. Cornwall), Dr. Bradley proceeded to fill the area behind the sea wall. When the wall was built in front of lots 3 and 4, these [**283] lots were owned by a Mr. George Edward Bierach, who did not protest.  It is not definitely shown whether he knew of the work when it was in progress for he was living in Washington.  Mrs. Hallock was not the owner of lots 3 and 4 when the fill was begun by Dr. Bradley, but the appellees, her daughter and son-in-law, had just recently purchased the lots from Bierach, and her protest against the fill may be presumed to have been made for them.

   The predicament in which the parties find themselves is due in considerable measure to loose conveyancing and to other carelessness.  It was testified that the [*34] contract for the sale of lots 3 and 4 by the Woodfields to the original purchaser, a Mr. Lanigan, was made in 1926.  It called for lots extending to the river. No deed was made till 1930, and then Mrs. Hallock, who in the meantime had become the owner of the lots, carried out the contract made by her parents.  Unlike the contract the deed conveyed lots that did not go to the river, but only to the north line[***10] as shown on the plat. Mr. Lanigan accepted the deed and for many years, even after the discovery of the discrepancy, neither he nor the later owners, who are the predecessors in title of the Cornwalls, raised the point.  Nothing was done by the successive owners to make any correction in the deed. In the meantime the Bradleys spent money on the wall.

   The Bradleys, on the other hand, were also not very cautious in respect to their property holdings, for they accepted a deed to the "Grove" which merely made reference to a plat that did not clearly define what was included in that designation.  It was testified by Dr. Bradley that he negotiated with Mrs. Woodfield for this property not on the ground but with the plat before them.  He admitted on the witness stand that she did not specifically say whether the strip now in dispute was or was not included in the "Grove".  The merest glance should have indicated to the purchaser that the boundaries of the property were at least ambiguous.

   A notable feature of the plat is that it does not show where the eastern boundary of the "Grove" lies.  The western line of lot 4 is the eastern boundary of the "Grove" up to the northern line of lot[***11] 4; but there is no line extending the division line between the "Grove" and lot 4 to the river. The question thus arising, "what did the deed to the 'Grove' embrace?" is the principal question in this case.

   The appellees contend that it conveyed nothing east of the western line of lot 4, despite the absence of a line delineating the eastern boundary of the "Grove".  The appellants maintain that the failure of the draftsman [*35] to close the line between the "Grove" and lot 4 by extending it to the river signified an intention to include in the "Grove" the entire strip opposite lots 1, 2, 3 and 4.  As to this, the appellees argue that if the Bradleys can claim under the "Grove" deed any part of the strip, why should they stop with the piece lying north of the four numbered lots; why not, just as logically, extend the claim to include land east of lot 1, which is likewise not cut off by any line on the plat? Yet the Bradleys do not assert that the strip intended to be conveyed with the "Grove" runs beyond lot 1 on the east.

   It will be noted from the above diagram that the area lying west of lot 4 has on it certain dots which presumably indicate trees on the "Grove".  These [***12]dots extend around and are shown in the strip north of lot 4.  From this it has been argued by the appellants that the plat treats the land in question as a part of the "Grove" and that it was conveyed by Mrs. Woodfield to Miss Bradley.  A look at the diagram makes it at once obvious that the appellants' argument, if accepted, would still not avail them as to that part of the strip which lies north of lot 3 for no dots appear opposite that lot. Moreover, the dots on the plat do not end in a straight line to correspond with an extension of the eastern outline of lot 4.  It would seem not unreasonable to infer that the draftsman placed these dots more or less at random and that they are to be taken as a general indication only, like an architect's imaginative drawing of shrubbery embellishing a structure to be erected.  No one understands such representations literally to indicate the future location of the plantings. The surveyor in this case, we think, had no thought thereby to define [**284]the outline of the "Grove".  Testimony was offered to show that while the "Grove" had trees, there were actually no trees on the strip north of lot 4, thus completely refuting the appellants' [***13] argument on this point.
 
   Complete consistency is not to be found on either side.  At least as to one former owner of lots 3 and 4, [*36] Mr. Bierach, who has been mentioned above, there is striking evidence that he had knowledge that the strip of shore land opposite his lots was not included in his grant.  Before making settlement for the property he had the title searched, and complained to the seller that the lots, sold as fronting on the water, actually ended short of the water line. For this discrepancy he claimed and received an adjustment of $300.00 in his purchase price from the sellers.  These sellers were trustees operating under the direction of the Court, and it is said that their making an allowance of $300.00 on Bierach's purchase price with the Court's sanction was not an adjudication by the Court that the strip did not in fact belong to lots 3 and 4, but was merely a practical disposition of a claim to avoid expensive litigation. With this we are inclined to agree, but the episode is important as showing Bierach's knowledge that the lots were not waterfront lots and that the Bradleys were claiming the intervening strip between the lots and the river. It has [***14]been suggested that Mrs. Hallock, mother of Mrs. Cornwall, who lived in Shady Side and was a party to the proceedings in which Bierach was the purchaser, also then knew of the adverse claim of the Bradleys.  Indeed, at a much earlier point in the chain of title, when Mrs. Hallock owned lots 3 and 4 and she sold to a Mr. Lanigan, the deed described the lots as running to the above mentioned line on the plat, not to the river. However this may be, such knowledge of the appellees and their predecessors in title can have no bearing on any rights the appellees may have acquired under the quit-claim deed. It can become relevant on the question of the Bradleys' claim to be compensated for improvements made by them to the shore strip in controversy, during the period before those, who from time to time owned lots 3 and 4, acquired waterfront rights by the quit-claim deed of 1952.

   Bierach testified that when he learned from a title search that lots 3 and 4, which he had purchased at [*37] public sale, did not run to the water's edge he consulted a lawyer.  He was advised to take the matter up directly with Dr. Bradley, and this he did before making settlement.  Accompanied by Herbert [***15]S. Sassi, he went to Dr. Bradley's office in Washington.  They testified that Dr. Bradley received them cordially and when they offered to pay for the supposed interest of the Bradleys in the land, the doctor declared that the disputed area was not his but belonged to lots 3 and 4, and added that if they would have a deed prepared to effect the necessary correction he would have his sister execute it.  Later, according to Bierach, Dr. Bradley said, "I am sorry, my sister will not sign; she has other advisers".  The doctor denied this story.

   It may well be that Dr. Bradley expressed himself as Bierach and Sassi say he did, yet when his sister declined to accept his suggestion and refused to sign a deed for the disputed strip, with or without a consideration, it is not unreasonable to suppose that she was thereby confirmed in her belief that she owned the land since Bierach and Sassi had approached her brother on that assumption.  From this there is no necessary inference of bad faith on the Bradleys' part any more than there should be such an inference against the owners of lots 3 and 4 on the theory that by their offer they inferentially acknowledged the Bradleys as the owners.  Bierach's[***16] silence thereafter and the absence of complaint from him or anyone while the wall was under construction further fortified Miss Bradley's belief in her ownership. The truth is that both sides were aware of some uncertainty, but each we think believed his position correct.

   While Bierach had received a reduction in price for what appeared to him and his attorney to be at least a plausible claim by Dr. Bradley to whom they offered money for a release of his rights under the equivocal plat, Bierach did nothing thereafter to challenge the doctor's claims after the repudiation [**285]of his alleged frank acknowledgment that the strip belonged to lots 3 and [*38] 4.  Bierach remained silent while the wall went up in front of his property.  If we decide that the "Grove" did not include the contested strip, we are then called on to declare whether under these circumstances the Bradleys are or are not entitled to the benefits of the doctrine of "melioration" to compensate them for the improvements they made to their neighbors' property.

   Other features of the evidence have been pointed to as bearing on the question of Dr. Bradley's state of mind and belief in respect to his rights [***17]in the disputed land at the time that he made the improvements. There is testimony that at least sometime around 1948 a fence ran as an extension of the division line between lot 4 and the "Grove" to the water's edge. Who put it there and how long it was permitted to remain is not shown. Fencing out the land in controversy from the "Grove" would not be consistent with Dr. Bradley's insistence that he considered himself and his sister the owners of the disputed land.  On the other hand, it was testified that he repeatedly put up a wire fence between lots 3 and 4 and the water, and this act can be interpreted only as his assertion of a claim to the strip.

   It was also testified that when lots 3 and 4 were sold at auction as waterfront lots, Dr. Bradley attended the sale and did not assert a claim to the strip of beach land.  His version is, "I didn't consider they were selling my property; they were considering lots 3 and 4 with Lanigan's house on it, which I didn't consider went to the river."

   We fully agree with the learned Chancellor's conclusion that the deed of July 24, 1945, did not convey the disputed land to Miss Bradley, and as it is conceded that the strip had not been[***18] conveyed to any one else by Mrs. Woodfield before the quit-claim deed to the appellees in 1952, we hold that the strip now belongs to the appellees.

   The holding that the deed to the "Grove" did not convey the land results from our construction of that deed and the plat to which it refers.  It does not follow, [*39] however, that the Bradleys were guilty of bad faith and therefore disentitled to compensation for the improvements.

   It seems fair to say that while each side from time to time made assertions of rights against and in defiance of the other side, neither pursued a clear course or acted with determination to vindicate its claims, or to clarify a doubtful situation.  Although each had knowledge of the other's adverse claim, each had some reason to entertain a belief in the rightness of its own position. When we now resolve the question by adjudication we do not think it necessary or warranted by the case as a whole for us to denounce the good faith of either the appellants or the appellees.  Dr. Bradley, insisting on his supposed title, said as a witness, "I couldn't spend that much money and believe otherwise." Concededly, the mere expenditure of money in improving[***19] a neighbor's property is not enough to establish a claim for melioration, but it is an element to be considered and may or may not indicate good faith, according to the circumstances.

   That the appellants were most unwise in undertaking so large an expense without first obtaining a clear definition of their rights, no one can deny; but imprudence is not the equivalent of bad faith.  We cannot say that when they spent this sum they acted without color of title, or with conscious inequity. The bulk of the money had been spent before they received notice that the Cornwalls objected.  Bradley's activities were not limited to a period of days but extended over approximately two years.  Mrs. Woodfield, the true owner of the land on which the work was done and who lives nearby and must have known of the work, remained silent, as did also her daughter. They sat by till the granddaughter acquired lots 3 and 4.

   The applicable rule is well stated in 2 Pomeroy's Equity Jurisprudence, sec. 419d: "Laches in legal significance is not mere delay, but delay that works a disadvantage to another.  So long as parties are in the [*40] same condition, it matters little whether one presses a[***20] right promptly or slowly, within limits allowed by law; but [**286] when, knowing his rights, he takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as an estoppel against the assertion of the right."

   To obtain the advantage of the doctrine of melioration it is not required that the person seeking such relief shall be able to show that there were no substantial adverse claims to the land which he improved, or that he had no knowledge of the existence of such claims.  On the contrary, the doctrine comes into play only when such adverse claims have prevailed.  It is necessary only that he shall have acted in bona fide, though mistaken, belief in his cause. McLaughlin v. Barnum, 31 Md. 425, 454.

   The equities are not wholly on either side, and we do not think it equitable for the entire loss to fall on either.  The appellees who come into court seeking equity, must do equity.  The rule is that the real owner, when he seeks the aid of equity to establish his right to the property itself, or to enforce [***21]some equitable claim upon it, having been substantially benefited, is required upon principles of justice and equity, to repay the amount of the vendible increase in the value of his property.  Jones v. Jones, 4 Gill, 87; Union Hall Assoc. v. Morrison, 39 Md. 281; Bryan v. Councilman, 106 Md. 380, 67 A. 279, 14 Ann. Cas. 1175; Goldberg v. Ford, 188 Md. 658, 53 A. 2d 665; Easter v. Dundalk Holding Co., 199 Md. 303, 86 A. 2d 404.

   Dr. Bradley testified that he spent $4,000 for the wall opposite lots 3 and 4, and $750 for dredging the river bottom for fill, and an additional $200 for leveling the dirt behind the wall -- a total of nearly $5,000.  The Cornwall property had a steadily eroding beach, already reduced to a width of 3 or 4 feet.  Their tax assessment had been reduced 30% because of this condition. They [*41] now have a protective wall that has, according to the uncontradicted testimony, added $2,400 to the value of their property.  Under all the circumstances we think an award to the appellants of Twenty-four Hundred Dollars ($2400.00) would be equitable and fair to both sides.

   In the rulings on the testimony and the motions to strike, we find[***22] no substantial basis for complaint by either appellants or appellees.
 
   For the reasons given the decree declaring title to be in the appellees should be affirmed; but the appellants are entitled to a lien for the sum of Twenty-four Hundred Dollars ($2400.00).

   Decree affirmed, and case remanded with directions to amend the decree by allowance of a lien, as above indicated; costs to the appellees. 

DAVEY v. DAVEY 
No. 135, October Term, 1952
 
Court of Appeals of Maryland
 
202 Md. 428; 96 A.2d 606; 1953 Md. LEXIS 342

 May  20, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Affirmed in part and reversed in part, and bill and cross-bill dismissed, with costs to the appellant.

CORE TERMS:  divorce, bed, fault, cohabitation, habits, spit, reconciliation, alimony, remarriage, marital, captain, bathe, roof, corroboration, bona fide, physical condition, corroborated, spouse, undergarments, self-respect, cross-bill, hemorrhoids, grievance, uncleaned, alleviate, intervals, sleeping, divorced, daughter, episode

COUNSEL: Samuel Schenker and John B. Wright, for appellant.

   George B. Woelfel and Thomas J. Curley, for appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Sobeloff, C. J., delivered the opinion of the Court.

OPINIONBY: SOBELOFF

OPINION: [*429] [**607] After divorce and remarriage, Capt. Ersal D. Davey and Ethel Margaret Davey soon found themselves again in the divorce court to which both resorted for relief from their marital grievances. The wife claimed alimony, alleging that her husband had become so lax in his personal habits as to force her in the interest of her health and self-respect to discontinue sharing his bed. The husband filed a cross-complaint for divorce, alleging that the wife[***3] had abandoned and deserted him by refusing him marital privileges although she continued to live under his roof. From a decree dismissing her bill and granting him a divorce a vinculo matrimonii she appeals. 

   [*430] The record is silent as to the date of their first marriage, but they have a married daughter who appeared as a witness in the case.  They were divorced in 1939; it does not appear who was granted the divorce or why.  The remarriage was in 1945.  About the following year the husband, a veteran of both world wars, was retired on pension as a captain in the United States Marine Corps, after more than thirty years' service.  He is now employed as a watchman and is approximately sixty years of age; the wife's age is not disclosed in the record.

   The remarriage ran into difficulties, according to the wife, in the summer of 1947 when the husband became neglectful of his personal cleanliness.  He bathed infrequently, and on one occasion abstained from bathing for three weeks. According to the wife's sister, who lived with the parties for a time, the Captain did not bathe for six weeks in the summer of 1952.  This neglect proved all the more offensive to the wife as[***4] he suffered from hemorrhoids which soiled his bed and underwear.  He refused to change his undergarments for weeks.  Moreover, having been gassed in World War I, he suffered from a condition which caused him to cought and spit. He kept an open spit can at or near his bed which was permitted to remain uncleaned for long periods and gave forth a bad odor.

   The wife's testimony as to her husband's conduct is corroborated by their daughter, by the wife's sisters, and by another woman.  Although the husband testified fully to other matters he failed to utter a single word in denial of their testimony as to his alleged uncleanlines.  In 1948 the husband underwent surgery for his hemmorhoids, but his refusal to bathe except at long intervals persisted to the time of trial.  His failure to deny this makes unavoidable the acceptance of the testimony of the wife and her witnesses as to Capt. Davey's obnoxious habits. At the argument here his counsel offered to explain that Capt. Davey's physical condition made bathing painful.  This suggestion is dubious even if it is to be treated as testimony.  The ailment is not uncommon [*431]and it does not ordinarily cause the victim to lapse into[***5] extreme and fixed habits of filthiness; nor would his physical condition account for his persistent shunning of the bath after his operation in 1948, or his unwillingness to change underclothes at reasonable intervals even before the operation.

   When the wife left her husband's bed is not entirely clear.  Various dates from the summer of 1947 to the fall of 1948 are given.  She testified that the conditions complained of continued to the time of the trial, and that she could not longer tolerate sleeping in her husband's bed without injury [**608] to her health and self-respect. The daughter testified that her father's habits made her mother "nervous" but there was no medical testimony to this effect.

   The husband attributed her cessation of cohabitation to quarrels over money. Her own version makes the inference possible that this may have played a role. At least as to the foul-smelling spit can, no reason appears why a housekeeper would not herself clean it before it became a nuisance.  Her failure to do so suggests that an element of spitefulness may have motivated her.  Certainly, she does not appear to have been solicitous for her husband in his ill health.  It was doubtless[***6] a difficult and unpleasant situation in which neither did what might have been done to alleviate it.

   We are of the opinion that the wife did not make out a sufficient case entitling her to a divorce and hence her bill for alimony was properly dismissed.  Zukerberg v. Zukerberg, 188 Md. 428, 53 A. 2d 20; Gold v. Gold, 191 Md. 533, 62 A. 2d 540; Hokemeyer v. Hokemeyer, 194 Md. 223, 71 A. 2d 15.
 
   It does not follow, however, that the husband must therefore be granted a divorce. He was not free from fault, as shown by the wife and her witnesses, uncontradicted by him.  His conduct at least contributed to, if it did not justify, the wife's sleeping in her own bed. Moreover, according to his own version, he made no effort at reconciliation from 1947 to the time of the court [*432] proceedings.  The conclusion is inescapable that he did not wish to resume marital relations any more than she did.

   Where both husband and wife live under the same roof but without marital cohabitation, and for years no gesture of conciliation or forgiveness is made by either, the inference is clear that both prefer to live in sullen hostility. Such were the circumstances here and neither[***7] may complain.  Where both are equally at fault and unyielding neither is entitled to a divorce. Martin v. Martin, 141 Md. 182, 118 A. 410; Dougherty v. Dougherty, 187 Md. 21, 48 A. 2d 451.

   The husband's claims are completely devoid of corroboration. While corroboration is not required as to every detail, yet there must be support of the material and controlling facts.  Hockman v. Hockman, 184 Md. 473, 41 A. 2d 510; Kelsey v. Kelsey, 186 Md. 324, 46 A. 2d 627; Hahn v. Hahn, 192 Md. 561, 64 A. 2d 739.

   Mrs. Davey was asked at the trial why she did not go back to live with her husband.  She replied: "Well, would you want to live with a man who would beat you and abuse you like he did me?" Such a refusal is without significance when no offer had been made by her husband, and it is to be noted that the husband was not asked if he was willing to resume cohabitation and conduct himself in such manner as to make living together not insufferable.  We perceive no reason for penalizing Mrs. Davey for not accepting an offer which the Captain withheld. 

   The wife was referring to an episode in June, 1951, after the separation had existed for four or five years, and could not[***8] have been the cause of it.  The alleged beating may have constituted an additional grievance on the wife's part, but it would hardly justify her persisting in the separation if the husband had attempted a bona fide reconciliation. But he does not claim that he made such an attempt after 1947.  The 1951 encounter resulted in a charge by the wife against her husband for assault which was dismissed.  We agree [*433] with the Chancellor that on this occasion the wife may have been drunk and at fault. She denies that she was drunk, and in any event no claim for divorce was based on this episode nor could it be.  There was undisputed testimony that occasionally the husband too drank to excess.  In respect to this, neither party has a basis for claiming a divorce.

   We hold that both bills should have been dismissed.

   Affirmed in part and reversed in part, and bill and cross-bill dismissed, with costs to the appellant. 

WILLIAMS et ux. v. DOVELL, Individually and as Executrix 
No. 133, October Term, 1952
 
Court of Appeals of Maryland
 
202 Md. 351; 96 A.2d 484; 1953 Md. LEXIS 332

 May  14, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court of  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  partner, partnership, tenant, real estate, real property, joint tenancy, partnership property, legal title, one-half, realty, conversion, widow, surviving partner, conveyed, deceased, garage, heirs, partnership agreement, partnership debts, remaining partner, undivided, tenancy, terminated, appraisal, belonging, unity, personal property, Uniform Partnership Act, undivided interest, separate property

COUNSEL: George B. Woelfel and Thomas J. Curley, for appellants.

   William J. McWilliams, with whom were McWilliams, Evans & Melvin and Robert E. Coughlan, Jr. on the brief, for appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*353] [**485] The bill of complaint of Elizabeth E. Dovell, widow of William Randolph Dovell, prayed the Circuit Court for Anne Arundel County to decree that she is the owner of an undivided one-half interest in realty situated in Glen Burnie, which her husband and Leroy H. Williams owned for thirteen years as partners in a garage and service station business.  The suit was brought under the Uniform Declaratory Judgments Act, which provides that any person[***5] interested under a deed, will, written contract or other writings constituting a contract may have determined any question of construction or validity arising under the instrument, and obtain a declaration of rights, status or other legal relations thereunder.  Code 1951, art. 31A, sec. 2.

   Dovell and Williams purchased the realty in May, 1937, when it was unimproved, for $1,000.  It was conveyed to them as joint tenants. They obtained a mortgage loan from the Standard Oil Company of New Jersey with which to build a garage and filling station on the lot.  Payments on the mortgage debt were made with partnership funds.

   When the partners applied for an agency of the General Motors Corporation in February, 1946, they executed a written partnership agreement to comply with requirements [*354] of that corporation.  The wife of each partner also executed the agreement to assent to the disposal of the real estate in the event of the withdrawal or death of either partner.

   Dovell died in August, 1950.  By his will probated by the Orphans' Court of Anne Arundel County, he left his entire estate to his widow.

   [**486] The chancellor held that the written agreement terminated the [***6]joint tenancy, and passed a decree declaring the title to the property to be vested in Williams and Mrs. Dovell as tenants in common, each having an undivided one-half interest therein.  Williams and his wife appealed from that decree.

   In the absence of a statute, a partnership cannot hold legal title to realty used for partnership purposes.  It is generally recognized that partners hold legal title to real estate as tenants in common and not as joint tenants. This rule is explained in 2 American Law of Property, sec. 6.8, as follows: "Since the partnership itself cannot hold the legal title to real estate, such legal title must be held by the partners themselves.  Do they hold as joint tenants or as tenants in common?  Although the four unities are present, partnership realty cannot be deemed held in joint tenancy since the right of survivorship, which is of the essence in a joint tenancy, is entirely inconsistent with the requirements of partnership law that partnership realty be applied to the extent necessary to pay partnership debts and adjust accounts between the partners and that the surplus be distributed equally on dissolution of the partnership. Legal title is therefore[***7] deemed to be in the partners as tenants in common."

   The English courts formulated the theory that partnership realty is considered converted into personalty for all purposes and is distributed as personal assets of the firm, and thus the title does not pass to the heirs of the partner, nor does any right of dower attach in favor of the wife of an individual partner. That theory was adopted in England to mitigate the hardship of the [*355] rule that excluded all children except the eldest from inheritance and the rule that exempted real estate passing to heirs from all but the specialty debts of the ancestor.  In the United States there are no laws requiring acceptance of such a theory.  In this country the law of primogeniture does not prevail, and there is no exemption of real estate from liability for simple contract debts, but real estate left by an ancestor is an asset for the payment of all debts.  Thus there is no necessity for an absolute conversion to justify a fiction that would deprive partnership real estate of its descendible quality.  The prevailing theory of the American courts is that partnership realty is impressed with a trust and treated as assets to be applied[***8] to the payment of partnership debts, but in so far as it is not needed for partnership purposes, no trust exists and it is held by the partners as tenants in common.  It is accordingly held by the great weight of authority that where title to real estate is vested in two partners, upon the death of either partner the deceased partner's share in the real estate descends to his heirs, subject to the equity of the surviving partner to have it appropriated to accomplish the trust to which it was primarily subjected.

   In Darrow v. Calkins (1897), 154 N. Y. 503, 49 N. E. 61, 64, 48 L. R. A. 299, wherein the Court of Appeals of New York adopted this rule, Chief Judge Andrews said: "The working out of the mutual rights which grew out of the partnership relation does not seem to require that the character of the property should be changed until the occasion arises for a conversion, and then only to the extent required.  The American rule commends itself for its simplicity.  It makes the legal title subservient in equity to the original trust.  It disturbs it no further than is necessary for this purpose.  The portion of the land not required for partnership equities retains its character[***9] as realty, and it leaves the laws of inheritance and descent to their ordinary operation."

   [*356] The Maryland Court of Appeals adopted the rule in Fooks v. Williams (1913), 120 Md. 436, 442, 443, 87 A. 692, 694. Judge Stockbridge said in that case: "In England there is held to be a complete conversion of such real estate into personal estate for all purposes whatsoever, and it passes to the personal representatives of the partners, and not to their heirs; but in this country by the overwhelming weight of authority when the objects of the conversion have been accomplished a reconversion takes place.  When the property has fulfilled all its functions as personal property in respect to the partnership, the partners and the creditors, and is no longer [**487] wanted for those purposes, it becomes in the hands of those who hold the legal title, real estate and subject to all incidents as such."

   The Uniform Partnership Act, adopted in Maryland in 1916, made a drastic change in the law of partnership. It expressly provides that a partner is co-owner with his partners of specific partnership property holding as a "tenant in partnership." The incidents of tenancy in partnership[***10] are such that (1) a partner has an equal right with his partners to possess the property for partnership purposes; (2) a partner's right in the property is not assignable, except in connection with the assignment of the rights of all the partners in the same property; (3) a partner's right in the property is not subject to attachment or execution, except on a claim against the partnership; (4) on the death of a partner his right in the property vests in the surviving partner, who has no right to possess it for any but a partnership purpose; and (5) a partner's right in the property is not subject to dower, curtesy, or allowances to widows, heirs, or next of kin.  Laws 1916, ch. 175, Code 1951, art. 73A, sec. 25.

   Section 8 of the Act provides that any estate in real property may be acquired in the partnership name, and title so acquired can be conveyed only in the partnership name.  But the Act does not prevent a partnership from acquiring real estate by having the partners take [*357] the title as cotenants.  As the Court said in Ottaviano v. Lorenzo, 169 Md. 51, 60, 179 A. 530, where real property is acquired in the course of a partnership with partnership funds, but the[***11] conveyance is to the partners as individuals, they hold the property in a resulting trust for the benefit of the partnership. However, where real estate is acquired as partnership property, but is conveyed to the partners by name without reference to the partnership, every right of ownership and disposition is in the partnership, and no interest of the partner in such real estate passes by devise or inheritance or by his individual deed except in the case of a conveyance to a purchaser for value without notice.  With that exception, the legal title of individual partners is an empty technicality.  The legal title to partnership property cannot be conveyed, devised or inherited as the individual property of any of the partners either as joint tenant or as tenant in common.  In so far as the beneficial individual interests of the partners are concerned, it is immaterial whether they are regarded technically as joint tenants or as tenants in common.  The partner's interest in the partnership, which is a personal chose in action, is all that he may assign or bequeath, and upon his death intestate that interest passes to his administrator as personal property. 2 American Law of Property[***12] , sec. 6.9.

   As we have quoted from a leading authority on the law of property, title to partnership realty is deemed to be held by the partners as tenants in common, and not as joint tenants. That is the natural presumption and the usual situation in view of the requirement of the law that partnership property shall be applied to the extent necessary to pay partnership debts and to adjust accounts between the partners. However, the proportions in which partners are entitled to the partnership property depend upon their agreement.  Consequently we hold that, subject to the rights of creditors, partners may agree that the partnership property shall be converted into the separate property of one of the [*358] partners. A court of equity will give effect to such an agreement upon dissolution of the partnership whenever such conversion clearly appears to have been the intention of the parties.  Ottaviano v. Lorenzo, 169 Md. 51, 62, 179 A. 530; Collier v. Benjes, 195 Md. 168, 176, 73 A. 2d 21, 24.

   In this case the real estate was conveyed to the partners as joint tenants. The partners had the right to hold the property as joint tenants, for it had the four essential characteristics[***13] of joint tenancy: unity of interest, unity of title, unity of time, and unity of possession.  However, it is plausible that the partners never intended that, in the event of the death of either, his estate would have no share in the property.  [**488] Both of the men were poor and had very little business experience.  One borrowed $500 from his wife, the other borrowed $500 from a sister, in order to purchase the lot on which to build a garage. It is significant that when they purchased another lot two years later, it was deeded to them as tenants in common.

   In any event, the partnership agreement, which was executed in 1946, shows conclusively that it was the intention of the partners that if a joint tenancy did exist, it was then terminated. As we pointed out in Eder v. Rothamel, 202 Md. 189, 95 A. 2d 860, there are a number of ways in which a joint tenancy may be terminated. One of the ways is by an agreement between the joint tenants to hold as tenants in common.  Such an agreement may be inferred from the manner in which the parties deal with the property.  Duncan v. Suhy, 378 Ill. 104, 37 N. E. 2d 826; 2 Tiffany, Real Property, 3d Ed., sec. 425.  We also[***14] mention that joint tenancies are always regarded with disfavor by the courts. The reason for this is that from early times the courts have looked with favor upon the widow's claim to dower as a humane provision for the support of the widow and her children, and have allowed her claim except when denied by the clearest mandate of the law.  Chew v. Chew, 1 Md. 163, 171, 172.

   [*359] Clause 2 of the partnership agreement provides: "The total assets of the partnership are equally owned, a one-half undivided interest belonging to Leroy H. Williams and the other half belonging to William Randolph Dovell."

    Clause 8 provides: "Either partner shall be privileged to withdraw from the business upon giving the remaining partner sixty days notice.  The withdrawing partner must sell his interest to the remaining partner and is prohibited from selling to anyone else, unless with the written consent of the remaining partner."

   Clause 9 provides: "Should the death of both partners be simultaneous, their respective estates shall be entitled to share equally in the partnership assets."

   Clause 12 provides: "Upon the death of either partner, the deceased partner's estate shall not have any[***15] interest in the management of the business, but the surviving partner shall run the business.  Within thirty days of the death of either partner, the matter shall be submitted to appraisal by selecting appraisers, one by the deceased partner's estate and the other by the surviving partner, said two selecting an impartial third, their appraisal being final, excepting that where the appraisal is less than the book value, then the book value shall prevail.  The deceased partner's estate must sell to the surviving partner and is prohibited from selling to anyone else.  The surviving partner may, if it is agreeable to the deceased partner's estate, purchase the assets of the deceased partner's interest in the business at a private sale within thirty days of the death of the deceased partner."

   We particularly observe that the agreement specifically mentions the parcel now in dispute and one other parcel as the real estate owned by the partnership. The agreement makes no distinction between them as to tenancy. We see no reason to believe that the partners intended that, in the event of the death of one of them, his estate would be entitled to a one-half interest in one parcel but would[***16] not be entitled to any interest in the other.

   [*360] Moreover, we see no reason to believe that the partners intended that, while each would be entitled to one-half of all of the assets, both real and personal, in the event of the termination of the partnership during the life of both, yet, in the event of the death of either, the survivor would become the sole owner of the real estate in dispute.

   We think it is beyond doubt that it was the intention of the partners that, upon the death of either, the estate of the deceased partner would be entitled to one-half of the value of both the real and personal property. We, therefore, affirm the decree declaring that Williams and Mrs. Dovell each have an undivided one-half interest in the real estate.

   Decree affirmed, with costs. 

HUTSON et al. v. STATE 
No. 131, October Term, 1952
 
Court of Appeals of Maryland
 
202 Md. 333; 96 A.2d 593; 1953 Md. LEXIS 330

 May  13, 1953, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing, Filed May 29, 1953, Denied June 10, 1953.

PRIOR HISTORY:  
Appeal from the Circuit Court of  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  indictment, abortion, married, conspiracy, prosecuting witness, true name, Criminal Law, popular name, trailer, lived, directed verdict, matter of substance, abuse of discretion, grand jury, common law, variance, fatal, popularly, indicted, jointly, sworn, drove, disclose, divorced, referee, criminal prosecution, original indictment, legally sufficient, sound discretion, adduce testimony

COUNSEL: Marshall A. Levin, with whom were Harry O. Levin and C. Maurice Weidemeyer, on the brief, for appellants.

   Ambrose T. Hartman, Assistant Attorney General, with whom were Edward D. E. Rollins, Attorney General and C. Osborne Duvall, State's Attorney of Anne Arundel County, on the brief, for appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*335] [**594] The appellants were jointly indicted for the crimes of abortion and conspiracy to perform an abortion, and elected a jury trial.  Ruth Hutson was found guilty of both offenses, the other appellants were found guilty of conspiracy. [***5] The appeals are from the judgments and sentences.

   The principal points urged on appeal are that the court erred in sustaining the State's exceptions to certain demands for particulars filed by the appellants, and in permitting the State, over objection, to amend the indictment at the trial, before the jury was sworn, to alter and correct the name of the prosecuting witness, upon whom the abortion was alleged to have been performed, from Jennie Lee Young to Jennie Lee Giorgio.

   Upon demand for particulars, the court required the State to answer as to the type of instrument used, the medicines administered, the place where the crime was committed, the persons present, and the manner in which the conspiracy was formed.  The court declined to require the State to answer questions as to when and by [*336] whom the prosecuting witness became pregnant; when and to whom she was married, if married; whether she had been previously married and to whom; whether she had children by her present or previous marriages, naming them; whether she and Ishmael Young were employed, and by whom.  The Court also declined to require the State to supply particulars as to this inquiry: "If the State[***6] intends to adduce testimony that Jennie Lee Young is the legal wife of Ishmael Young, state when and where they were married and by whom; also state how long they have resided in [**595] Maryland and where they resided prior to their present residence."

   It is well settled that in a criminal prosecution a motion for a bill of particulars is addressed to the sound discretion of the court, and the court's action thereon is not the subject of an appeal unless there is some gross abuse of discretion resulting in injury to the accused.  Shelton v. State, 198 Md. 405, 411, 84 A. 2d 76, 79; Leon v. State, 180 Md. 279, 285, 23 A. 2d 706. We find no such abuse here.  The inquiries refused were not directly related to the crime charged, if relevant at all.  It is clear that the appellants knew that the prosecuting witness, who used the name of Young, was living with Ishmael Young at an address known to them.  The State's case was not dependent on proof that she was his legal wife, nor would a failure to prove it afford any defense to the charge.  At most, the fact that she was not married to him might reflect upon her character, and, to the extent that she misrepresented the fact [***7]in her previous statements, reflect upon her credibility.  We cannot accept the argument that the accused were injured by the State's failure to investigate and disclose the fact in advance of the trial.  The prosecuting witness testified at the trial that she had been married to Giorgio in 1945, had three children, and was divorced from him in 1949.  She was living with Young, whose name she used, at the time of the abortion in July 1952, and had lived with him since August 1951.  He was separated from his wife but not divorced. She did [*337] not disclose to the State officials that she was not married to Young until the day before the trial.

   The appellants contend that the court erred in allowing the amendment to the indictment on the ground that at common law the name of a person in an indictment is a matter of substance which cannot be changed without the consent of the grand jury. "Neither the State's Attorney, nor the Court, nor both together, can supply the necessary authority, which can only come from the grand jury, in the absence of some statutory provision." Watts v. The State, 99 Md. 30, 33, 57 A. 542, 544. In the case cited, as in the later case of State [***8] v. Barrett, 148 Md. 153, 128 A. 744, it was held that the statute, now codified as Section 689, Article 27, Code of 1951, authorizing the correction of names of persons other than the defendant erroneously set forth in an indictment, by the State's Attorney on application to the Court, applies only to cases where the error appears and the amendment is sought "after a jury is sworn." Section 688, Article 27, Code of 1951, applies only to the names of defendants.  Watts v. The State, supra.

   The Attorney General points out that in the Watts case the conviction was sustained under another count and that in the Barrett case the precise holding was that the court properly disallowed the amendment and that the original indictment was bad on demurrer.  He does not question, however, the statement of the rule at common law, nor does he rely upon the sections cited as changing the rule.  He contends that the case is controlled by Section 692, Article 27, Code of 1951, which provides that no indictment shall be quashed or judgment upon any indictment reversed "by reason of any mere defect or imperfection in matters of form which shall not tend to the prejudice of the defendant, [***9] * * *."

   In the recent case of State v. Wheatley, 192 Md. 44, 49, 51, 63 A. 2d 644, 647, we declined to apply this section to a case where the State sought to amend an indictment so as to charge a defendant with violation of his official duties as an examiner, instead of a referee [*338] as set out in the indictment, on the ground that this was a matter of substance. It was held that the indictments failed to "describe how defendant as a referee had the authority to make any determination upon the claims alleged." Thus the amendment charged an offense not charged in the original indictment. But the principle was relied on in the earlier cases of Hawthorn v. State, 56 Md. 530, 536, and Hammond v. State, 14 Md. 135, where it was held that amendments which eliminated or supplied unnecessary matter could be disregarded.  See also United States v. Fawcett, 3 Cir., 115 F. 2d 764, 132 A. L. R. 404.

   [**596] In the instant case we think the amendment was unnecessary and the court's action in allowing it was not reversible error.  The person calling herself Jennie Lee Young at the time of the abortion and for about a year before that time, was the identical person[***10] who testified to the abortion. The fact that she had previously been known as Jennie Lee Giorgio would not render her testimony inadmissible.  Cf. Bird v. United States, 187 U.S. 118, 125, 23 S. Ct. 42, 47 L. Ed. 100. Nor would it constitute a fatal variance. "The rule is that the name of the person injured by the offense charged must be stated, and a failure to state it, or a material variance between the statement and the proof, is fatal. However, the object and purpose of describing a person by his name is to identify him sufficiently so that the defendant may be appraised of the person whom the charge of crime concerns.  Hence, the general rule is that an indictment will not be held bad which gives a popular name as distinguished from a true name; it will be enough to sustain the averment of a particular name that the party was usually or popularly known by such name." 2 Wharton, Criminal Evidence (11th Ed.) Sec. 1048, p. 1845.

   In Bennett v. United States, 227 U.S. 333, 338, 33 S. Ct. 288, 57 L. Ed. 531, the court said: "Defendant was indicted for having caused the transportation of Opal Clarke, and, it is said, the testimony showed that [*339] her correct [***11]name was Jeanette but that she had gone by the names of Opal and Nellie, her real name, however, being Jeanette Laplante.  A variance is hence asserted between the allegation and the proof.  The Court of Appeals rightly disposed of the contention.  As the court said, the essential thing in the requirement of correspondence between the allegation of the name of the woman transported and the proof is that the record be in such shape as to inform the defendant of the charge against her and to protect her against another prosecution for the same offense.  The record is sufficient for both purposes." See also Burke v. United States, 9 Cir., 58 F. 2d 739; Pyke v. State, 47 Fla. 93, 36 So. 577; People v. Dustin, 358 Ill. 68, 52 N. E. 2d 224; Vaughn v. State, 236 Ala. 442, 183 So. 428. Cf. Commonwealth v. Azer, 308 Mass. 153, 31 N. E. 2d 549.

   There is nothing to indicate that the defendants were misled or prejudiced in their defense by the unnecessary amendment or the testimony of the witness as to her true name. They did not ask for a continuance on the ground of surprise, nor do we intimate that such a request should have been granted under the circumstances.  The argument[***12] that they did not know her as Young is beside the point.  Her testimony that she was known by that name was corroborated by Ishmael Young, and by another witness, a tenant in the building where she lived, and was uncontradicted.  The defense was that they had never seen the person Young, or Giorgio, at any time before the trial.  There was legally sufficient evidence to the contrary and the issue was for the jury.

   The appellant Thomas J. Hutson contends that there was no legally sufficient evidence to show that he participated in the conspiracy. It was shown that this appellant drove the automobile which brought Ruth Hutson to the Young apartment on her first visit there.  He drove Jennie Lee and Ruth Hutson to the Glen Burnie coffee shop where they met Mrs. Ahlstedt and made arrangements for the performance of the abortion. He and Ruth Hutson made arrangements with Jennie Lee [*340] to take her to the Ahlstedt trailer. He drove Jennie Lee to the trailer and remained in the trailer while the abortion was performed.  He visited the trailer with Ruth Hutson on the day following.  The automobile was titled jointly in his name and that of Ruth Hutson.  He had lived with Ruth Hutson[***13] for fifteen years.  Although they were not married she used his name.  Ruth Hutson had been convicted in six prior cases.  He admitted that he had been convicted with her in one similar case and received probation without verdict for three years in another.  The evidence permits an inference that he was a party to the whole transaction.

   The State contends that there was no motion for a directed verdict by this appellant, and hence there can be no review [**597] by this court. Auchincloss v. State, 200 Md. 310, 315, 89 A. 2d 605, 607. However, there was an objection to the charge excepting "to that part of the instructions which instructs that there was a conspiracy." Without approving the form of the objection, we hold that there was no error in submitting the case to the jury.

   Judgments affirmed, with costs. 

TAYLOR v. OGLE et al. 
No. 126, October Term, 1952
 
Court of Appeals of Maryland
 
202 Md. 273; 96 A.2d 24; 1953 Md. LEXIS 324

 April  17, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  lease, renewal, redeemable, covenant, expiration, Redemption Act, longer period, period of time, unambiguous, tenant, statutory period, void, manifested, redemption, subleases, lessee, renew, right of redemption, declared void, agricultural, quotations, lessor, conclusively presumed, liberal construction, leased property, new lease, landlord, definite, irredeemable, accomplish

COUNSEL: Howard A. Sweeten, with whom were Samuel J. Fisher and Carroll H. Albaugh on the brief, for the appellants.

   F. Murray Benson, with whom were William J. McWilliams, Henry M. Decker, Jr., and Thomas G. McCausland on the brief, for the appellees.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*274] [**24] In 1931, there passed by devise from Robert L. Werntz to his niece, Amy W. Ogle, a property in the Third Election District of Anne Arundel County known as "Gardner Farm".  On June 15, 1938, Mrs. Ogle leased the property to the appellant, Raymond W. Taylor, who was in possession under a [***3]prior lease from Mr. Werntz.  The terms of the new lease included provisions cancelling the former lease, setting a term of five years, with the privilege in the lessee to renew on expiration for another term of five years, and one permitting still another term of five years.

   The lease was not acknowledged but was duly recorded in Anne Arundel County. Mrs. Ogle died in 1940, devising the property to her husband, Maurice Ogle, for life, with remainder to her son, Maurice Chapman Ogle.  On October 29, 1951 the appellant notified the Messrs. [*275] Ogle of his intention to redeem the leased property under the provisions of Section 112 of Article 21 of the Code (1951 Ed.).  The appellees challenged the right of the appellant to redeem. The appellant's bill for redemption in the Circuit Court for Anne Arundel County was dismissed on demurrer.

   We will assume, without deciding, that the lease is one for a term of exactly fifteen years, putting to one side, without consideration, the questions as to the effect of the renewal covenant, the lack of acknowledgment, the effect of the recording of an unacknowledged instrument, and the effect of the Curative Act in Section 107 of Article[***4] 21 of the Code (1951 Ed.).

   The statutory language which controls the case is codified as Section 112 of Article 21 of the Code (1951 Ed.) as follows: "All rents reserved by leases or subleases of land hereafter made in this State for a longer period than fifteen years shall be redeemable at any time after expiration of five years from date of such leases or subleases, at the option of the tenant, after a notice of one month to the landlord, for a [**25] sum of money equal to the capitalization of the rent reserved at a rate not exceeding six per centum." This section is often referred to as the Redemption Act.

   The appellees say that the statute means precisely what it appears to mean and that only leases or subleases which are for a period greater than fifteen years are redeemable. The appellant contends that the language "for a longer period than fifteen years" really means for a period of fifteen years or more. He says that mere words, read literally, no matter how plain, exact and apposite, need not a statutory prison make.  He seeks to make a skilful escape from the tight semantic shackles of Section 112, by this process of reasoning: (1), The Redemption Act was remedial[***5] legislation and should be liberally construed to accomplish the purpose for which it was passed; (2), This Court, in three cases which have dealt with the Redemption Act in a particular situation, has used substantially this language: "The [*276] lease was for a period less than fifteen years and is therefore irredeemable." From this, it is argued that it has been held, by a liberal construction, that a term of fifteen years, or more, is redeemable.

   In Silberstein v. Epstein, 146 Md. 254, 126 A. 74, the Court was deciding whether a lease of a business property, for a term of ten years, which had been executed in recognition of a right of renewal given by a previous lease of ten years, constituted a lease for more than fifteen years, or two separate ten year terms.  It held that there were two separate ten year leases. The Court said in that case: "As the existing lease is for a term of less than fifteen years and does not provide for its renewal, it is not within the operation of the statute quoted . . ."

   In Theatrical Corp. v. Trust Co., 157 Md. 602, 146 A. 805, it was held that a lease for six years with a right in the tenant to renew for a further term of eight years, [***6] and then at the end of that term, for a further term of ten years, was a lease of twenty-four years, with a consequent right of redemption. The Court, in discussing Silberstein v. Epstein, supra, said of that case: "Considering the lease then in effect and before the Court, it was clearly apparent that the lease was for a term less than fifteen years, and therefore irredeemable."

    In Schultz v. Kaplan, 189 Md. 402, 56 A. 2d 17, the Court held that a five year lease providing for indefinite extension without necessity of executing a new lease, was for a period longer than seven years and thus was void when not acknowledged and recorded in compliance with the statute.  In discussing renewal provisions in leases, the Court referred to Silberstein v. Epstein, supra, saying: "This Court held that as the existing lease was for a term less than fifteen years and there was no provision for renewal it was not within the Redemption statute . . ."

   The appellant would have these three quotations change the clear and unambiguous meaning of the Redemption [*277] Act. It is plain from the questions which were actually decided in each of the cases and from the language of the opinion[***7] in each case, read as a whole, that the Court in none of the cases intended to, or did, construe the Redemption Act as meaning that a lease is redeemable if it is for the term of fifteen years or less.  The reference in the opinions to leases for less than fifteen years is manifestly a reference to the statutory period and is used synonymously with it, albeit this was a loose and inexact use.  If the opinions in the cases relied upon are reread in full, this will be seem immediately.  In Silberstein v. Epstein, supra , 146 Md. at page 257, 126 A. at page 75, the Court said: "In this case, the lease now in force specifies a term less than the statutory period and contains no renewal covenant"; on the next page it is said: ". . . No right of redemption can be predicated upon the existing lease since it does not exceed the statutory limitation"; and on page 256 the Court said that the Redemption statute ". . . was to accomplish such a preventive purpose that all leases thereafter made for longer periods than fifteen years were declared to be redeemable . . ."

   In Maryland Theatrical Corp. v. Trust Co., supra, the actual ground of the decision was set forth in 157 Md. on page[***8] 618, [**26] 146 A. on page 811: "From what we have said, our conclusions are: . . . second, that it is a lease for a longer period than fifteen years and is redeemable . . ."

   In Schultz v. Kaplan, supra, 189 Md. at page 413, 56 A. 2d at page 22, the Court, referring to the Silberstein case, said: "The question to be decided in that case was whether the lessee of property held under a lease for more than fifteen years . . ."

   In Stewart v. Gorter, 70 Md. 242, 16 A. 644, 2 L. R. A. 711, it was held that a lease for fourteen years, with a covenant to renew for a like period, the second lease containing the same covenants as the first, was a lease for a longer period than fifteen years and so redeemable. The Court made it plain that the use of the term "for [*278] less than fifteen years", upon which reliance is had by the appellant, really is used by the Court as the synonym for the statutory period. It said: "The leases for less than the fifteen years mentioned in the Act, means leases without the covenant for renewal, and which were intended by the parties to end at the expiration of fifteen years or a less period of time." A similar definition is given in [***9] Sheppard & Enoch Pratt Hospital v. Swift & Co., 178 Md. 200, 209, 13 A. 2d 174, 178, where it is said: "It may be added that leases for less than fifteen years means leases without a covenant for renewal, and which are intended by the parties to the contract to end at the expiration of fifteen years or a less period of time."

   Courts in other States which have had occasion to consider similar statutory or constitutional language have agreed with the above quotations from Stewart v. Gorter and the Sheppard case.  The New York Constitution declared void a lease of agricultural lands for a period longer than twelve years.  In Hart v. Hart, 1856, 22 Barb., N. Y., 606, there was a lease for twelve years with a covenant for renewal which would extend it beyond that period.  The lease was held valid for the full twelve years, although the covenant for renewal was declared void. In Parish v. Rogers, 20 App. Div. 279, 46 N. Y. Supp. 1058, 1059, the question was whether the creation of an estate for the life of the lessor in agricultural lands was prohibited by the constitutional provision.  If the estate for life was held to be "for a longer period than twelve years," it [***10]would have been void. The Court held that the lease was valid for the life of the lessor or for the full period of twelve years, whichever was shorter.  In Robertson v. Hayes, 83 Ala. 290, 3 So. 674, 675, the Court was construing a statute which provided that "no leasehold can be created for a longer term than twenty years".  It was held that a lease for forty years was valid for twenty, although void for the period above that.  In Young v. Dake, 5 N. Y. (1 Selden), 463, 55 Amer. Dec. 356, where the statute [*279] of frauds required a writing if the term of the lease exceeded one year, a parol lease for exactly one year was held valid.

   We think the case before us is one which undoubtedly calls for the strict application of the doctrine of the famous case of Bluff v. Father Gray (A. P. Herbert, Uncommon Law 192), in which Lord Mildew said: "If Parliament does not mean what it says, it must say so." More direct and more binding authorities on the proposition that where the words of the statute are definite and unambiguous, the meaning of the legislature must be conclusively presumed to be manifested in the words of the Act include Celanese Corp. v. Davis, 186 Md. [***11]463, 470, 47 A. 2d 379; Saunders v. Maryland Unemployment Comp. Board , 188 Md. 677, 53 A. 2d 579; and Maguire v. State, 192 Md. 615, 65 A. 2d 299.

   The Chancellor said: "I do not think the language of the statute can be stretched so as to make it apply to a lease which was intended to end at the expiration of fifteen years or a less period of time . . . The line had to be drawn somewhere and the Legislature drew it at fifteen years." We agree.

   Decree affirmed, with costs. 

CHISLEY v. STATE 
No. 106, October Term, 1952
 
Court of Appeals of Maryland
 
202 Md. 87; 95 A.2d 577; 1953 Md. LEXIS 304

 March  20, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed.

CORE TERMS:  murder, manslaughter, shot, second degree, premeditation, homicide, deliberation, killing, criminal law, shooting, confession, remember, first degree murder, cross-examination, conviction of murder, intoxication, malice, remembered, malice aforethought, degree of murder, replied, fired, legal sufficiency, cigarettes, drinking, bought, kill, directed verdict, matter of law, wrongful act

COUNSEL: Louis M. Strauss, with whom was Clarence L. Johnson on the brief, for the appellant.

   Ambrose T. Hartman, Assistant Attorney General, with whom were Edward D. E. Rollins, Attorney General, and C. Osborne Duvall, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*91] [**578] The appellant, John William Chisley, was indicted for murder of Richard Henry Contee.  His pleas were: 1, that he was not guilty, and 2, [***8] that he was insane at the time of the commission of the offense.  It is admitted that he was sane at the time of the trial.  He was tried before a jury on September 5, 1952, about a month after his indictment. After the Court had refused a motion for a directed verdict at the close of the State's case, and at the conclusion of the whole case, the jury found the appellant sane at the time of the commission of the crime, sane then and guilty of murder in the first degree, without recommendation.  The Court sentenced him to be hanged.

    It is undisputed that John William Chisley shot and killed Richard Henry Contee on May 9, 1952 with two shots from a revolver, one in the head and one in the abdomen.  The claim of Chisley is that there was no sufficient evidence of either first or second degree murder and the Court should have so ruled as a matter of law, leaving the jury to find a verdict of either manslaughter or not guilty.  Also, it is claimed that there was prejudicial error in permitting cross examination of the accused which utilized questions and answers lifted verbatim from a confession which was refused admission in evidence because it was not complete.

   The State contends[***9] that the lower Court and this Court may not rule as a matter of law on the sufficiency [*92] of the evidence [**579] as to the degree of murder -- on whether the evidence would sustain a conviction of first degree murder -- saying that this must always be for the jury to determine.  It urges the correctness of the rulings on the evidence and that there was evidence to sustain the verdict of the jury.

   The motion of the appellant for a directed verdict is in two parts.  "(1) That there is no evidence sufficient in law to justify his conviction of murder in the first degree, (2) That the evidence is insufficient in law to justify his conviction of murder in the second degree." As is said in Yanch v. State, 201 Md. 296, 300-301, 93 A. 2d 749, "Since the adoption of the amendment to the Maryland Constitution, Article 15, Section 5, effective December 1, 1950, we have the right and duty, when the question is properly submitted, as in the instant case, to pass upon the legal sufficiency of the evidence in a criminal case . . . This Court will not in a jury case pass upon the weight of the evidence or decide whether the State has proven its case beyond a reasonable doubt.  If[***10] there is any proper evidence before the jury on which to sustain a conviction, the motion for a directed verdict will not be granted." Shelton v. State, 198 Md. 405, 84 A. 2d 76. The State agrees with this statement of the law and agrees that if there was no evidence whatever of murder, but only of a killing, which if it amounted to a crime, could be manslaughter only, the Court below and this Court could so rule.  It contends, however, that if there is any evidence of murder, there can be no determination by the Court below or this Court, as a matter of law, that the evidence is insufficient to show first degree murder. Its argument is that although Sections 494-498 of Article 27 of the Maryland Code (1951 Ed.) divide the crime of murder into two classifications: murder in the first degree and murder in the second degree, as has been long held by this Court, this statutory classification left the common law crime of murder undisturbed and did not create a new crime.  The purpose of the statutes, it is said, was a mitigation of punishment in less atrocious [*93]murders. The State says that the question before the jury can be only whether the appellant committed the crime[***11] of murder. If it is found that he did, the jury under the statute, must determine the degree.  On this premise, the State argues that the changes in criminal procedure which followed the amendment to Article XV, Section 5 of the Constitution, and which are controlled by the provisions of Section 700 of Article 27 of the Code (1951 Ed.) and Rule 5A of the Criminal Rules of Practice and Procedure do not apply to the determination of the degree of the crime.  It quotes Davis v. State, 39 Md. 355 at page 374:

   "'Murder' is here recognized as a general denomination, including offenses differing from each other in their degrees of atrocity, but not in their nature or kind; no attempt is made to explain or modify its meaning or abridge its range.  Its common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.

   "The mode of distinguishing its degrees is specially prescribed, by requiring the jury, if the person indicted for murder shall be tried, to 'ascertain in their verdict whether it be murder in the first or second degree,' or if the 'person be convicted by confession, the court[***12] shall proceed by examination of witnesses to determine the degree of the crime and to give sentence accordingly.'"
 
The State urges that in Abbott v. State, 188 Md. 310, 52 A. 2d 489, decided before the Court was given the power to pass on the sufficiency of the evidence, the Court recognized the validity of the holding in Davis v. State.  The Court said in the Abbott case: "We find nothing in the language of Section 480 of Article 27 (now Section 499) Chapter 138, Acts of 1809, quoted above, to indicate an intention on the part of the Legislature [*94] to make reviewable by this Court a finding of the trial court as to the degree of a crime".  The State finds further support for its position in Pennsylvania decisions.  Pennsylvania has a statute almost identical with [**580] Sections 494-499 of Article 27, providing that the jury shall ascertain the degree of murder. It cites Commonwealth v. Foster, 364 Pa. 288, 72 A. 2d 279, and Commonwealth v. Gibbs, 366 Pa. 182, 76 A. 2d 608.

   We are persuaded that to accept the holding urged by the State would, in a most important particular defeat the intention of the Legislature and the people in amending[***13] the Constitution so that the Court may decide in criminal cases sufficiency of evidence as a matter of law, leaving other matters of law and all matters of fact to the jury.  Under the established and unquestioned practice, the jury may return a verdict of manslaughter under a murder indictment.  Article 27, Section 710 of the Code (1951 Ed.); Bozman v. State, 193 Md. 196, 66 A. 2d 401. The State concedes, as we think it must, that the Court may instruct an acquittal on the charge of murder, leaving the jury to find whether or not the accused is guilty of manslaughter or not guilty.  It is true that technically manslaughter and murder are distinct crimes, yet, in substance, they are degrees of felonious homicide. Hochheimer, On Crimes and Criminal Procedure, Second Edition, Sec. 346.  In substance, also, the difference between murder in the first degree and murder in the second degree is as great and as definitive as the difference between murder and manslaughter. It would produce a most unreasonable and unfortunate result to hold that the Court may instruct that there is no evidence of murder and yet cannot instruct that there is no evidence which would sustain a conviction[***14] of murder in the first degree.  The difference in punishment between murder in the second degree and manslaughter is but a few years.  The difference in punishment between murder in the first degree and murder in the second degree may often be the difference between death and life.

   [*95] The language of the Constitutional Amendment, of the statute, (Section 700, Article 27 of the Code, 1951 Ed.) and of Rule 5A of the Rules of Criminal Procedure, in each case permits review by the Court as to whether the evidence is insufficient to sustain "conviction".  The Code (1951 Ed.) in Section 500 of Article 27 sets forth the punishment for "every person convicted of murder in the first degree." In the following section, it establishes the punishment for "every person convicted of the crime of murder in the second degree".  Section 502 says: "An offender, on conviction, may be sentenced to suffer death".  In Abbott v. State, supra, the Court relied strongly on the settled law of Maryland "that this Court will not pass upon the legal sufficiency of evidence to convict in a criminal case".  In speaking of the determination of the Court below as to the degree of murder, it[***15] then held this: "To the extent that the finding is one that would have been conclusive in the event of a jury trial, we think it should be equally conclusive where the determination rests with the trial court under the provisions of Section 636, Article 27, or Section 480 of Article 27 of the Code. These statutes were adopted in the same year, 1809, and have remained without substantial change.  Insofar as they deal with different aspects of the same subject-matter, they are in pari materia and should be construed together".  As we have noted, the premise of the Abbott case was that the Court cannot pass on the legal sufficiency of the evidence.  Now that the Court may do so, the force of the Abbott case as a precedent that the Court may not determine the legal sufficiency of the evidence to sustain a conviction of first degree murder is unimpressive.

   The Pennsylvania statute, which coincides with Sections 494-499 of Article 27 of the Code (1951 Ed.) contains provisions which are identical, as to the definition of the two degrees of murder and as to the duty of the Court and the jury in ascertaining which has been committed.  This statute was the first to be passed in[***16] this country and most of the States have modelled their [*96]law upon that of Pennsylvania.  See History of the Pennsylvania Murder Statute, 97 Pa. Law Review 759; and Hochheimer, work cited, Sec. 347.  The Pennsylvania decisions, relied on by the State, do not offer support for its position.  [**581] The Pennsylvania Courts have long held that where there is any evidence to be submitted to the jury, the Court cannot direct the jury as to the degree, or exclude manslaughter from its consideration and cannot direct acquittal.  The jury must be the judge where there are facts upon which it can base a decision.  Nevertheless, where there are no facts which will permit or sustain a decision by the jury, the Pennsylvania Court may direct a verdict of acquittal.  Commonwealth v. Bardolph, 326 Pa. 513, 192 A. 916; and Commonwealth v. Benz, 318 Pa. 465, 178 A. 390. The reiteration in the Pennsylvania cases relied on by the State, and in other similar cases, that the jury must decided the degree of murder comes where there is evidence to go to the jury and the Court has instructed as to first degree but has either altogether omitted reference to the possibility of[***17] a finding of second degree or of manslaughter, or has insufficiently stressed those possibilities; nevertheless, where there is a complete lack of evidence justifying the verdict of manslaughter, it has been held in Pennsylvania that it is not an error for the Court to fail to instruct on that point.  Commonwealth v. Yeager, 329 Pa. 81, 196 A. 827. Pennsylvania holds, as does Maryland, (and as is generally held, Warren on Homicide, Perm. Ed. Vol. 1, Sec. 77-78) that a division of murder into first and second degree does not change its common law status as one crime. Nevertheless, the Pennsylvania statutes require the Court on a motion in arrest of judgment, or on appeal, to pass on the sufficiency of evidence as to the degree of murder involved.  In Commonwealth v. Blanchard, 345 Pa. 289, 26 A. 2d 303, 306, 27 A. 2d 48, the Court noted that there, in homicide cases, the appellate court reviews the law and the evidence "to determine whether the ingredients necessary to constitute murder in the first [*97] degree shall have been proved to exist" and if not, to reverse judgment and to send the case back for a new trial or enter proper judgment under the law and facts. [***18]In Commonwealth v. Dorazio, 365 Pa. 291, 74 A. 2d 125, 127, the Court held that, in reviewing a conviction of murder, "it is our duty to determine whether the degree or elements of murder in the specified degree are present; whether there is sufficient evidence from which the jury could find beyond a reasonable doubt that the degree of murder was committed by the accused".  This was also stressed in Commonwealth v. Carluccetti, 369 Pa. 190, 85 A. 2d 391.

   The law in many jurisdictions seems to be in accord.  In 23 C. J. S., Criminal Law, Sec. 1156, page 695, it is said that the Court must not impinge on the right of the jury to determine the degree of crime of which accused is guilty, and goes on to say, "the Court may, where the evidence warrants it, charge that the evidence shows that a crime of one of the specified grades or degrees has or has not been committed, and direct the jury, if they believe the evidence, to find accordingly".  In 41 C. J. S., Homicide, Sec. 352, page 118, it is said: "Whether there is legal sufficiency of evidence in support of a degree of the crime of which accused may be convicted which will warrant its submission to the jury is a question[***19] of law for the Court, and, where there is no evidence to support a particular degree of homicide, the Court should not submit that issue to the jury".  See Commonwealth v. Yeager, supra; Commonwealth v. Green, 302 Mass. 547, 20 N. E. 2d 417; and Kinard v. United States, 68 App. D. C. 250, 96 Fed. 2d 522.

   In State v. Linville, 148 Kan. 142, 79 P. 2d 869, 871, the accused was convicted of manslaughter in the second degree. The Court instructed the jury as to manslaughter in the second degree, manslaughter in the fourth degree, and simple assault.  The Court said that the essential elements necessary to constitute the crime of manslaughter in the second degree were neither established by direct evidence nor by legitimate inference.  [*98] The Court held that: "As the evidence failed to support the charge of manslaughter in the second degree, we think it was error to instruct the jury as to that crime and to submit such issue to the jury".  There was a similar ruling in State v. Nelson, 148 Minn. 285, 181 N. W. 850; and see State v. McLeod, 196 N. C. 542, 146 S. E. 409. In Commonwealth v. Merrill, (Mass.) 14 Gray 415, 77 [**582] Am. Dec., 336, the accused[***20] was indicted for assault with intent to rape and was found guilty.  The Court said: "There was an entire absence of all evidence of the use of force" and that the evidence would have supported only a finding of simple assault.  It was held that the case should not have gone to the jury on the question of assault with the intent to rape.  In Devoy v. State, 122 Wisc. 148, 99 N. W. 455, the appellate court said that the evidence was insufficient to establish the crime of rape and that the Court should have granted the motions of the accused to dismiss the case on this charge and have submitted the case to the jury on the counts supported by the evidence.  See also State v. Kelley, 36 Wash. 2d 772, 220 P. 2d 342; State v. Banks, 48 Ind. 197; State v. Hammonds, 216 N. C. 67, 3 S. E. 2d 439; and Commonwealth v. DiStasio, 297 Mass. 347, 8 N. E. 2d 923, 113 A. L. R. 1133. In the latter case, the defendant was indicted with his father on the charge of murder and also as an accessory before the fact.  The Court directed a verdict on the charge of murder, saying that if there was any guilt it was as an accessory before the fact.

   We think that the criminal procedure in Maryland, [***21] established by the Constitution and the statutes and rules which have followed it, contemplates the power of the Court to direct a verdict where the evidence is entirely insufficient to go to the jury on the question of first degree murder. The Circuit Court of Appeals for the Seventh Circuit, in Ex Parte United States, 101 F. 2d 870-878, 131 A. L. R. 176, said: "The essence of legal power is to take the case away from the jury, where there is an insufficiency of evidence to sustain [*99] a conviction".  In Webb v. State, 201 Md. 158, 163, 93 A. 2d 80, 83, the Court decided that it need not consider whether, had death ensued, "the appellant could have been convicted of murder in the first degree for a 'wilful, deliberate and premeditated killing', or merely of another 'kind of murder' comprehended in the second degree".  This assumption of the power of decision between the two kinds of murder is at least a hint of prophecy, although perhaps not made with full deliberation and premeditation, that if the occasion arose, the Court would hold it has the power and duty to review the evidence to see if it would sustain first degree murder. See also Knowles v. State, 192[***22] Md. 664, 65 A. 2d 179; Munshower v. State, 56 Md. 514; and 13 Maryland Law Review, 52, 62.

   Since we must decide whether the jury should have passed on the issue of first degree murder, a recital of the essential testimony is necessary.  On May 9, 1952, the night of the murder the father of the accused and two other men met him by chance in Bowie and drove him home in the car with them.  The appellant had been drinking but did not seem to be drunk.  He walked to the car in Bowie in his usual manner, although he seemed to sleep on the back seat during the drive back home.  When the car arrived at the Chisley home, it was driven to within four or five feet of the back steps.  The father got out of the car first, followed by his brother-in-law, William Shorter, who told him that he had dropped some cigarettes. The accused said they were his and Richard Contee, the victim, said they were not.  The father testified: "That's all there was to it. He gets out the gun and shot him; there wasn't any argument to it." Both the father and William Shorter agree that more than one shot was fired. The father, after the first shot, had gone through the house and a considerable distance up [***23]a road when he heard a second, and, perhaps, a third shot. Shorter had gone around the corner of the house and some thirty or forty yards across a field, when he heard the gun go off again.  He said "I don't [*100] know how many [times]".  The father, when asked whether his son drank, testified that he did and that when he drank heavily, "He don't act any too good . . . He is kinda disagreeable and cross."

   There was testimony by Leon Thomas, a neighbor of the Chisleys, that he learned of the shooting from the appellant's mother.  He walked over to the victim's car and found the accused sitting in it, attempting to start it, as it kept stalling.  Thomas then discovered that Contee was dead, and [**583] he urged the accused not to drive off but to get out of the car to help him. Chisley made no reply, so Thomas reached in and turned off the ignition key.  At that point, Chisley reached back in his hip pocket, pulled out his gun and said "Goddam it, don't tell me what to do." Thomas' appraisal of whether Chisley was drunk or sober was that he had "been drinking, * * * but that he didn't appear to be drunk." He also said that the appellant, when drinking, "used to act up [***24]terrible; he would cuss his mother and father out; his father was scared to death of him." Thomas added that he was scared to leave his house, adjoining that of the accused, on Sunday mornings, because Chisley would sit in the kitchen door and shoot his revolver.

   The State Police testimony is that when Chisley was picked up on the night of the shooting, about midnight, he had been drinking and was staggering.  They say: "He was incoherent; he couldn't make a very definite statement." This was several hours after the shooting. The State attempted to introduce a confession which had been given by the appellant on the afternoon of the day following the shooting. It is conceded that the statement was voluntarily made and was not induced by threats or promises of reward.  It was reduced to writing, in question and answer form, and signed by the appellant after he had read it.  In preliminary testimony as to the circumstances under which the confession had been given, it developed that there were some questions which had been omitted from the statement.  The explanation was: "There may have been some that [*101]would be irrelevant to it." The testimony was that no questions had [***25]been left out because Chisley did not know the answers.  All of the questions were in there except one or two and these were left out, according to the testimony, because "they were not that important", either to the State or to the defendant.  The Court sustained an objection to the admission of the confession on the ground that it was not a complete statement.  After the rejection of the confession, Trooper Kuhns of the State Police, testified that Chisley had talked to him about ten o'clock on the morning following the shooting, and had said that he had had an argument with Contee and that he had shot him.  He could not remember what the argument was about.  Chisley then said that after the shooting, he had left and gone to Bowie to continue drinking. He had been drinking before the shooting in Bowie at the Railroad Inn and other places.  He told Trooper Kuhns that he had come home from work with Contee, his father and some other man, and that he had shot Contee with a gun he had bought several months before in a hardware store in Bowie.  Chisley also said, in this same conversation, that when he was leaving after the murder, someone tried to stop him and he pulled the gun out[***26] and pointed it at him and told him to go away and leave him alone.  Chisley told the trooper that he had, together with some of his friends, drunk three pints of liquor before the shooting. He did not know the man he shot had died, until he was told by the police.

   The appellant himself, on direct examination, testified that he got off from his work at Bowie race track about four o'clock on the day of May 9, 1952 and went to the Railroad Inn, where he bought a half pint and cold beer.  He shared his whiskey with some of his pals and shared some of their whiskey.  He did not remember getting home or who took him.  He remembers nothing until after the shooting. Police told him the next morning that he had shot a man.  He recalled seeing Leon Thomas as he was leaving the scene of the [*102] shooting but he does not remember any more than what the Police said, "that the man was shot twice".  Under cross-examination, Chisley admitted that the State Policeman did not write down anything more than he said, that he was shown the statement and read it, and that he signed it.  A series of questions and answers from the statement was read to him, and he was asked if he remembered the answer. [***27]Consistently, he replied "Yes".  The form of some of the questions made it difficult to tell whether in answering "yes", the witness was saying he remembered being asked the question and answering it, or whether he was saying that the facts [**584] stated in the question were correct.  Objection was made on the ground that the questions and answers were in the confession which had been ruled out.  The Court permitted the line of questioning on the ground that the witness, in his direct testimony, had said he did not remember matters and facts as to which he had given answers in the statement, and therefore, the cross-examination was proper.  After some twenty questions from the statement, Chisley was asked whether anyone had talked to him about the facts before he gave his statement, and he replied that no one had, that no one had coached him or said he had better say this or that, and that the answers set down were exactly what he remembered. He was asked, "You remembered when you answered these questions exactly what had occurred, didn't you?", and he replied "Yes, sir." He was then asked if he knew what had happened the day before, and he replied he did.  He was asked if he[***28] knew he had shot Contee and he replied that he did.  When he was asked if he knew that he had argued about some cigarettes, he replied that he did not.  He knew that he had had an argument of some sort but he did not know what it was about.  He knew that he had shot Contee once but he did not know he had shot him any more than that.  He knew that after he had shot Contee, he jumped into his car and he remembered Leon Thomas coming up to him, although he doesn't remember what he said.  [*103] He knows that when he got in the car, he drove down to Bowie to get his cigarettes out of Monroe Johnson's truck.  He remembered running into a bank on the way and that the car worked nicely when he got it started.  When he struck the bank, he started the car again and went on and got his cigarettes. When he got to Bowie, he remembered that he stopped at the store and bought another pint of liquor and went over to Railroad Inn and drank another bottle of beer.  He was asked whether he had a dollar bill or two dollar bills when he paid for the whiskey, and he replied that he had three one dollar bills and he didn't remember how much change the man gave him but he does remember he bought Bourbon [***29] DeLuxe.  He left the pint in the car and walked over to get some beer, but he was arrested before he had an opportunity to get it.  Before he bought the liquor, he bought a bottle of Gunther's beer and remembered that he drank it out of a glass and that it was a warm glass rather than a chilled glass.  He had planned to go back home later on.  He had told one friend of his that he was going back home and that he wanted to give himself up, knowing that he had shot somebody.  He was then asked if he told Monroe Johnson that he had shot Contee.  He said he had but he doesn't remember telling him that he almost shot Leon Thomas.  He was then asked, "But you do remember telling him you shot Contee, didn't you?" and his answer was "That's right." He was asked how far away he was when he shot Contee the first time.  His answer was "I don't know." Asked again, he said, "he was about from me over to that bar there."

   All this came in without objection.  The Court then asked him: "Were you sitting in his car when the first shot was fired? A. No, sir, I was standing on the ground.  (The Court).  You were standing on the ground when the second shot was fired? A. Yes, sir."

   There was no prejudice[***30] to the appellant in the cross-examination based on the questions and answers taken from the confession. Everything that was embraced [*104] in or deducible from this cross-examination was revealed in the testimony of Trooper Kuhns, as to the statements made to him by Chisley the morning after the shooting. No objection was made to this testimony and the facts stated by the appellant were proper evidence as admissions, even if they did not amount to a confession. Ford v. State, 181 Md. 303, 29 A. 2d 833; Delnegro v. State, 198 Md. 80, 81 A. 2d 241; and Curreri v. State, 199 Md. 54, 85 A. 2d 454. Further, in view of the denials of remembrance in Chisley's direct testimony, it tested his credibility.

   The appellant himself, in his testimony on cross-examination, unobjected to, and as to which there could be no sound objection, [**585] disclosed fully everything that was in the questions and answers complained of.  It is not necessary then to decide whether the confession was properly excluded, although it may well be that it should have come in, with full right and opportunity to the defendant to supplement it if it was incomplete.  Newton v. State, 147 Md. [***31]71, 127 A, 123; Walters v. State, 156 Md. 240, 144 A. 252; Gray v. State, 181 Md. 439, 30 A. 2d 744; Underhill, Criminal Evidence, 4th Ed., Sec. 265, page 514, and Sec. 276, page 546; 2 Wharton, Criminal Evidence, Sec. 582, page 962; 1 Greenleaf, Evidence, Sec. 201 (as modifying an apparently contradictory statement in Hochheimer, Sec. 170); State v. Burrell, 112 N. J. L. 330, 170 A. 843; State v. Adams, 339 Mo. 926, 98 S. W. 2d 632, 108 A. L. R. 838; Preston v. United States, 65 App. D. C. 110, 80 Fed. 2d 702, and Louette v. State, 152 Fla. 495, 12 So. 2d 168.

   On the evidence which the jury was entitled to consider, we find the Court below was not in error in submitting the issues of first and second decree murder. Felonious homicide is divided into two main classes -- murder and manslaughter. Murder has been defined as the unlawful killing of a human being with malice aforethought; and manslaughter to be the unlawful killing of another without malice aforethought. Hochheimer, [*105] work cited, Sec. 346; Neusbaum v. State, 156 Md. 149, 143 A. 872; and Warren on Homicide, Perm. Ed., Vol. 1, Sec. 63.  The law presumes all[***32] homicides to be committed with malice aforethought and to constitute murder. The burden is on the accused to show circumstances of alleviation, excuse, or justification, which will reduce the offense to manslaughter. Wharton's Criminal Law, 12th Ed., Vol. 1, Sec. 419. Where the law divides murder into grades, such a homicide is presumed to be murder in the second degree and the burden is on the State to show that the killing was wilful, deliberate and premeditated, if the crime is to be elevated to first degree murder under Section 494 of Article 27 of the Code (1951 Ed.). Hochheimer, work cited, Sec. 347; Lloyd v. Commonwealth, 185 Va. 674, 40 S. E. 2d 258; State v. Lamm, 232 N. C. 402, 61 S. E. 2d 188; and Commonwealth v. Robinson, 305 Pa. 302, 157 A. 689.

   The essential distinction between murder and manslaughter, therefore, is the presence or absence of malice. Malice has been defined, in this connection, as the intentional doing of a wrongful act to another without legal excuse or justification.  It includes any wrongful act done wilfully or purposely.  Warren on Homicide, Vol. 1, Sec. 66.  This Court, in Rosenberg v. State, 164 Md. 473, 165[***33] A. 306, said that "malicious" as used in an indictment, was descriptive of a wrongful act committed without legal justification.  It has been held often that the inference of malice may be drawn from the fact of the use of a deadly weapon directed at a vital part of the body.  At least, in the absence of circumstances disproving malice, that presumption arises from such a use.  Vaccaro v. Collier, D. C. Cir., 38 Fed. 2d 862. The Court, in Commonwealth v. Robinson, supra, [305 Pa. 302, 157 A. 692] said: "The intentional, unlawful and fatal use of a deadly weapon against a vital part of the body gives rise to the presumption of fact that malice * * * existed." See also Commonwealth v. Young, 326 Mass. 597, 96 N. E. 2d 133; Pitts v. State, 216 Ind. 168, [*106] 23 N. E. 2d 673; and State v. Hammonds, 216 N. C. 67, 3 S. E. 2d 439, supra. There is no evidence in this case of provocation nor passion and no other evidence to overcome the presumption of a killing committed with intent, which is malice in law.  That is to say, there is no basis on which the jury could properly have found a verdict of manslaughter. There was evidence in the case that would justify[***34] the jury finding, as they did, that the killing was wilful, deliberate and premeditated, as required by Section 494 of Article 27 of the Code (1951 Ed.) if it is to be first degree murder. As we shall see hereafter, in more detail, voluntary intoxication will not reduce murder to manslaughter nor will it excuse the crime.  It must be considered by the jury as it bears on the questions of wilfulness, deliberation and premeditation on the part of the accused.  Hochheimer, work cited, Sec. 347, p. 380, defines "wilful" as follows: "[**586] there must be a specific purpose and design to kill;" "deliberate" is defined: "there must be full and conscious knowledge of the purpose to do so;" and, "premeditated" as: "the design must have preceded the killing by an appreciable length of time, time enough to be deliberate.  In order to justify a conviction of murder in the first degree, as thus defined, the jury must find the actual intent, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate offspring of rashness and impetuous temper and that the mind has become fully conscious of its own[***35] design." It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case.  Webb v. State, supra. The Court of Appeals of New York, in Leighton v. People, 88 N. Y. 117, 120, put it in this wise: "If, therefore, the killing is not the instant effect of impulse, if there is hesitation or doubt to be overcome, a choice made as the result of thought, however short the struggle between the intention and [*107] the act, it is sufficient to characterize the crime as deliberate and premeditated murder." The same ruling is made in People v. Majone, 91 N. Y. 211, 212: "Such design must precede the killing by some appreciable space of time.  But the time need not be long.  It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is." It is generally established and certainly is necessarily the law of Maryland, where the jury is the judge of the law and the[***36] facts, that where there is evidence to go to the jury, whether or not there was malice, wilfullness, deliberation and premeditation must be for the jury to determine. Warren on Homicide, Vol. 3, Sec. 307; and Jones v. State, 188 Md. 263, 272, 52 A. 2d 484. Shelton v. State, supra.

   There remains only the effect of intoxication. Warren on Homicide, Vol. 1, Sec. 61, says this: "The general rule of criminal law that voluntary drunkenness is no excuse for crime applies to homicide . . . Where murder is divided into degrees, the fact of drunkenness at the time of the homicide may be considered by the jury in determining the degree of murder . . . It is held that the mere fact that the accused was intoxicated is not sufficient to reduce the killing from murder to manslaughter." In Hopt v. People, 104 U.S. 631-635, 26 L. Ed. 873, the Supreme Court held that voluntary intoxication affords no excuse, justification or extenuation of a crime committed under its influence but that under a statute establishing different degrees of murder, the question of whether the accused was in such a condition of mind by reason of drunkenness, or otherwise to be capable of deliberation[***37] and premeditation, becomes a material subject of consideration by the jury.  To the same effect are the majority of the cases in the country.  See State v. Kelly, 216 N. C. 627, 6 S. E. 2d 533, 546; Mack v. State, 203 Ind. 355, 180 N. E. 279, 83 A. L. R. 1349; People v. Rogers, 18 N. Y. 9; State v. Hammonds, (N. C.), [*108] supra; Commonwealth v. Jones, 355 Pa. 522, 50 A. 2d 317, 322; Commonwealth v. Simmons, 361 Pa. 391, 65 A. 2d 353; State v. Tansimore, 3 N. J. 516, 71 A. 2d 169, 176; Mergner v. U. S., 79 U. S. App. D. C. 373, 147 Fed. 2d 572; 12 A. L. R. 861; State v. Stenback, 78 Utah 350, 2 P. 2d 1050, 79 A. L. R. 897; and Wharton's Criminal Law, work cited, Sec. 516.  Spencer v. State, 69 Md. 28, 13 A. 809, and Taylor v. State, 187 Md. 306, 49 A. 2d 787, give indications that Maryland follows the general rule.  See also Fisher v. U. S., 328 U.S. 463, 66 S. Ct. 1318, 90 L. Ed. 1382. The evidence was sharply conflicting as to the extent of Chisley's intoxication. Certainly it was a matter for the jury to determine. The jury was fully instructed by the Court in his charge as to the necessity for considering the effect of[***38] intoxication on the formation and existence of wilfullness, deliberation and premeditation.

   There was evidence, in our opinion, which the jury could properly consider in determining whether there was [**587] intent to kill and deliberation and premeditation. The shooting was preceded by the discussion, brief as it was, about the ownership of the cigarettes. The jury could find that two or more shots were fired and that there was an appreciable interval between the first shot and the second, or more, and that the second was fired as Contee lay on the ground; the firing of two or more shots in such circumstances has been held by the Courts to be evidence for the jury of deliberation and premeditation. State v. McNamara, 116 N. J. L. 497, 184 A. 797, 185 A. 479; People v. Harris, 209 N. Y. 70, 102 N. E. 546; Commonwealth v. Dreher, 274 Pa. 325, 118 A. 215; and Brown v. State, 62 N. J. L. 666, 42 A. 811. The jury could have considered and acted upon a finding that the appellant, when he pulled the pistol from his pocket and threatened to shoot Leon Thomas, and then decided that he would not, was acting just as he had not acted in his attack on the deceased and that[***39] deliberation and premeditation had resulted in his choice to kill. Commonwealth v. Gidaro, 363 Pa. 472, 70 A. 2d 359; [*109] State v. Pierce, 4 N. J. 252, 72 A. 2d 305; and State v. Hammonds, 216 N. C. 67, 3 S. E. 2d 439, 445, supra. Evidence of the movements and actions of the accused after the killing and before the arrest may be competent evidence.  McCleary v. State, 122 Md. 394, 89 A. 1100; and Cothron v. State, 138 Md. 101, 110, 113 A. 620.

   We think that there was evidence which justified submission to the jury as to whether or not there was murder in the first or second degree, and that the jury was properly instructed as to the law, under the facts of the case.

   Judgment affirmed. 

JAWORSKI et al. v. JAWORSKI et ux. 
No. 94, October Term, 1952
 
Court of Appeals of Maryland
 
202 Md. 1; 95 A.2d 95; 1953 Md. LEXIS 295

 March  13, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  deed, acre, plat, ownership, build, built, feet, declaration of trust, decree, carr, real property, parol gift, estoppel, laches, frontage, recorded, sister, silent, staked, died, money expended, pais, three-fifths, one-fifth, remainder, allocated, repudiate, mortgage, deceased, occupied

COUNSEL: Malcolm J. Coan, with whom was Howard Calvert Bregel on the brief, for the appellants.

   Matthew S. Evans for the appellees.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*3] [**96] This appeal involves conflicting claims of the descendants of Ludwig Jaworski, who died a widower, as to the respective ownership of various parts of a ten acre tract of land in Anne Arundel County, which had been owned by[***5] him.  The decree of the Circuit Court for that County, which is complained of, confirmed ownership as to one parcel in a son who occupied a house thereon, which he had built, and denied effectiveness to the attempt made by another son, the holder of legal title as trustee, to effect a unilateral partition among the descendants as he saw fit.

   In 1927 Ludwig Jaworski was living in Baltimore with his son, Leon.  He and his wife had had five children, namely, John, Elizabeth, Frances (Mrs. Jewer), Leon and Roland.  Elizabeth had died in 1918.  John died in 1944 or 1945.  Leon, Frances and Roland were living in or near Baltimore City.  Ludwig had some $500.00 [*4] in the Kosciusko Loan and Savings Association, a house in Baltimore, No. 1605 Lancaster Street, and a waterfront property containing ten and a fraction acres in Anne Arundel County.  In December, 1927, Ludwig put the savings account in the joint names of Leon and himself, and the next day, conveyed the real estate to Leon by a deed duly executed and recorded. The deed was in fee simple without any reservation of life estates or powers by the grantor, but the understanding was that Leon was to hold the properties as trustee[***6] for his father and sister and brother.  In July, 1931, Leon, the grantee of the said deed, executed a declaration of trust, to the effect that he held the property for the benefit of his father for life with full power in the father "to sell, mortgage, lease, or otherwise dispose of the remainder, as well as the life estate therein, including disposition by will,".  It also provided that after the death of Ludwig, so much of the property as remained should be divided into five equal parts, one-fifth to go to Frances, one-fifth to Roland, and the remaining three-fifths to Leon, all free of trust.  This paper was executed with all the formalities of a deed but was not recorded. In April, 1935, Ludwig signed another writing, which purported to change the beneficial remainder interests in the property referred to in the declaration of trust, so as to apparently give Frances and Roland, in equal shares, the three-fifths interest which had been given Leon originally, although the language of the paper leaves it somewhat in doubt as to what was intended.  This writing was neither acknowledged nor recorded, although it was witnessed, and none of the parties give it any weight or validity. [***7] The case, by common consent, was tried on the assumption that it was not to be considered at all.

   This litigation, in substance, involves only the ten acres in Anne Arundel County.  The property lies on the north side of Powhatton Beach County Road and has a frontage of 1144.98 feet thereon, binding along its northeast side on Stony Creek for a distance of about [*5] 600 feet, and has a depth, northerly from the road, varying from about 200 feet on the easternmost outline to something over 500 feet about the middle thereof.  Frances and her husband had erected a shack on the property which had been used on weekends by the whole family.  In 1941, there were disagreements [**97] between Roland and his family and Frances and her family.  Roland wanted a division of the property. As a result, Ludwig, Leon and Frances all told him to hire a surveyor and have him plat a division of the property as the children had staked off their respective claims.  Mr. J. Revell Carr of Anne Arundel County was employed by Roland, and in March, 1942, made a plat following the lines the children had staked out, which had been done according to a rough plat Roland had previously made.  Leon denies[***8] that the property had been staked out but it is undisputed that he worked with Roland and Mr. Carr all day on the property and helped Mr. Carr to secure all the data necessary to prepare his plat. In this division of the property, Leon was allocated two lots, No. 1, containing 1.7 acres, and No. 4, containing 4.09 acres. Frances Jewer and John, her husband, were given two lots, Nos. 2 and 5, containing respectively 0.97 and 1.03 acres, and Roland and Margaret, his wife, were given Lot No. 3, which contained 2.66 acres. If there had been a division precisely according to the declaration of trust, Roland and Frances would each have received 2.09 acres and Leon 6.18 acres. Leon did receive in the Carr division 4/10ths of an acre less than an exact three-fifths, Frances 9/10ths of an acre less than her one-fifth, and Roland 5/10ths of an acre more than his fifth.  Roland's lot, on paper, was more desirable because it had more water frontage, but the north and northwest corners of his lot, so the Chancellor found, "are nothing but a deep precipitous gully, so that at least two-thirds of his Creek frontage is practically worthless".
 
   Following the survey, Roland, with the knowledge of[***9] all the family, and with the acquiescence and help of Leon, built a house on Lot No. 3, which had been allocated [*6] to him.  He spent substantial amounts immediately after the Carr Plat had been made, and eventually, expended some $9,000.00.

   In April, 1943, Roland received a letter from Mr. Noah A. Hillman, a lawyer at Annapolis, advising him that Leon, the month before, had executed a deed to Frances and her husband for "two lots of land as shown on a plat which had been recorded with the deed at Annapolis." These two lots were Lots 2 and 5, as shown on the plat. Roland was advised that Leon was willing to convey to him Lot 3 on the plat and he was directed to remove from Mrs. Jewer's lot any building material and bricks thereon.  The plat referred to by Mr. Hillman was one made by J. Edward Hall in November, 1942.  The effect of the division of the whole property shown on this plat was to cut off of Roland's lot, as established by the Carr Plat, a strip of land 100 feet or more extending along its entire westernmost outline, so as not only to reduce the area of the lot from 2.66 acres to .82 of an acre, but to cut off its entire road frontage, and tuck it in behind Mrs. [***10] Jewer's lot No. 2 at the end of a 16-foot right-of-way. It was proposed, as compensation, to give Roland Lot No. 4 near the west end of the property with a frontage of 141 feet on the County Road.  The Chancellor found that the value of this lot would not begin to compensate Roland for the damage caused to his Lot No. 3 by taking away the 100-foot strip and requiring him to use the right-of-way as his only means of ingress and egress.

   After receipt of the Hillman letter, Roland referred it to Mr. Eldrige Hood Young, a lawyer in Baltimore who had represented the family for many years, and who had prepared the deed and declaration of trust. Many conferences were held over a period of several years but nothing was accomplished by way of settlement.

   Ludwig died in September, 1946 without leaving a will.  Some six months later, Roland, having learned that Leon, notwithstanding the settlement conferences, had [*7] executed and delivered a deed of some of the land which Roland was to get under the Carr Plat, to Frances and her husband, and a deed for another part thereof, to Robert Norris and his wife, the son-in-law and daughter of Frances, seemingly as her nominees.  Roland then[***11] had Mr. Young bring a bill of complaint against Leon and the grantees of the deeds, praying that all conveyances from Leon respecting the properties, including the deeds of 1943 and 1947, be declared null and void and of no [**98] effect, and that Leon, Frances and the Norrises be restrained from in any way disposing of any part of the whole property, and that the several parcels of land as set out on the Carr Plat "be declared to be the division of the land therein among the children of Ludwig Jaworski, and that a trustee or trustees may be appointed to make conveyances or grants as therein described and allotted." The decree set aside and declared the deeds null and void and impressed Lot No. 3, containing 2.66 acres of land, with a trust in favor of Roland, and appointed Mr. Young trustee to convey the lot to Roland free and clear of all claims of any other parties.  The Court took no action as to the division of the land, other than Lot No. 3, between Leon and Frances, but indicated its willingness to make a division, if the parties so desired.

   The appellants in their brief make two explicit and express concessions.  One is, that, as found by the Chancellor, "Ludwig's power[***12] was about as broad as a power can be.  He not only had the right to sell, mortgage, or lease said property in his lifetime, but he could otherwise dispose of it during his lifetime, or, by his will, appoint who should take it".  Two, is that if Ludwig "with a copy of the Carr Plat before him and knowing all about the subdivision made thereby, expressed to Roland Jaworski his approval thereof and told Roland to go ahead and build his house on Lot No. 3 as delineated on said plat, and that Roland thereafter in reliance thereon erected his house thereon, Ludwig would not thereafter be permitted to repudiate his [*8] action.  Also, that in such event, said estoppel in pais would bind the privies of Ludwig, to wit, the defendants, Leon Jaworski and Mrs. Jewer".

   The appellants assert vigorously that Roland failed to prove the facts assumed in the second concession by the clear preponderance of the evidence, and that a finding of fact by the Chancellor, that they did was clearly erroneous. It is true that there was a conflict of evidence on the point.  Roland testified that right after the Carr Plat was made, his father was well pleased and told him to go ahead and build his[***13] house.  He says Ludwig told him "You know now what belongs to you; you go on and build your house".  His testimony is corroborated by his wife and one of his sons.  Leon, on the contrary, says that he, unaccompanied by anyone, took a copy of the Carr Plat to Ludwig, who disapproved and said that he, Ludwig, would go on the land and show how he wanted it divided.  Leon says further that several weeks later, his father went on the land and made the division, which was subsequently incorporated in the Hall Plat. Frances corroborates Leon as to Ludwig's disapproval of the Carr division and of his approval of the Hall Plat. Mr. Young testified that he went with Leon to see Ludwig, who told him that Frances and her husband had built on Lot No. 2, as shown on the Carr Plat, that Roland wanted to build on Lot No. 3, and that the father said he wanted Frances to have Lot No. 2 and Roland to have Lot No. 3, and that he was not interested in what happened to the rest of the land.  Mr. Young's exact testimony as to this meeting, in part, was: "So far as Leon and the old gentleman were concerned when I discussed with them about the deeds, that was perfectly agreeable for Roland to have that lot". [***14]

   On the evidence, Judge Clark made this finding: "I find, from the evidence before me, that Ludwig told Roland to go ahead and build his house; that he did this after he had been given a copy of the Carr Plat and knew all about the subdivision made thereby; and [*9] that, when Roland went ahead and spent nine thousand dollars ($9,000.00) in doing what Ludwig told him to do, the latter would not have been permitted to repudiate his action had he tried.  A father cannot play fast and loose with his children.  If he tells one of them to go and build a house on a certain piece of land on the promise to convey the land to the child, he must stick to his bargain".

   We think the finding of fact by the Chancellor, who saw the witnesses and the property, was not wrong and that the decree should be affirmed.  It is a well established principle in equity that a parol gift from a father to a son, of land on which an entry has been made and money expended, cannot [**99] be repudiated.  It is said that such a parol gift while not enforceable at law under the Statute of Frauds, becomes irrevocable in equity after a child has taken possession of the land and made improvements of considerable[***15] extent.  The Courts say that under those circumstances to allow the donor to avoid the performance of his undertaking, would operate as a fraud on the donee. Hardesty v. Richardson, 44 Md. 617; Loney v. Loney, 86 Md. 652, 38 A. 1071; Whitaker v. McDaniel, 113 Md. 388, 78 A. 1. The rules laid down and applied in these cases are recognized in Williams v. Robinson, 183 Md. 117, 36 A. 2d 547; Masters v. Masters, 200 Md. 318, 332, 89 A. 2d 576, 582. See also 155 A. L. R. 76.

   Neither Leon nor Frances can justly complain of the effect of this holding. As has been said, Leon participated in the preparation of the Carr Plat and actually sold Roland the lumber to be used in building his house on the lot given him by the Plat. Frances and her husband were fully aware of the situation and the building of the house, since they themselves used and occupied the shack on the adjoining lot.  Leon admits that he saw the house being built on the lot that Roland had picked out.  When he was asked if he raised any objection to its being built, his answer was "No, I let him go ahead".  This statement applies also to Frances.  [*10] One cannot stand by and see another make expenditures[***16] for improvements to property to which he has, or later asserts, some claim or title and not give any notice or objection, without losing his right in good conscience in equity to assert his own claim or title against the improvements.  Greenwalt v. McCardell, 178 Md. 132-138, 12 A. 2d 522; Machovec v. Shipley, 171 Md. 339-345, 189 A. 223.

   An even broader power of estoppel is that reiterated in Carmine v. Bowen, 104 Md. 198, 64 A. 932; Eareckson v. Rogers, 112 Md. 160, 75 A. 513; and Price v. Adalman, 183 Md. 320, 37 A. 2d 877, to the effect that "He who is silent when he ought to have spoken, will not be heard to speak when he ought to be silent".

   Then appellants contend that Roland is barred by laches because he did not bring suit for some three years after he had been notified that Leon asserted a claim adverse to him.  During that three years, the parties were making continuous efforts to adjust their differences.  If the delay resulted in prejudice, it operated with equal force on each of the parties and hurt none more than another.  It is complained by the appellants that Roland waited until his father's death before bringing the suit so that the father's[***17] testimony could not be had.  The straw that broke the camel's back and precipitated the filing of the suit, were the deeds of 1947 made by Leon after his father's death, when he would have had a more colorable right to so act than he had in 1943 when the first deed was executed, at a time when his father was living.  In any event, if the appellants had desired to have Ludwig's testimony in the controversy, the Courts were open to them and they could have brought proceedings for the establishment of the rights claimed by them at a time when Ludwig could have testified.  We see no merit in the contention of the appellants as to laches.

   Decree affirmed, with costs. 

DARIENZO TRUCKING CORPORATION et al. v. SULLIVAN et al.(Two Appeals in One Record) 
No. 97, October Term, 1952
 
Court of Appeals of Maryland
 
202 Md. 32; 95 A.2d 293; 1953 Md. LEXIS 298

 March  13, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  tractor-trailer, speed, driver, station wagon, filling station, truck, brakes, trailer, lane, mile, horn, highway, looked, excessive speed, station, pulled, evidence of negligence, collision, driving, tractor, gravel, sudden, front, feet, bus, boulevard, straight, driven, hit, ran

COUNSEL: Jesse Slingluff, Jr., with whom were John G. Rouse, Jr., and Piper & Marbury on the brief, for the appellants.

   John J. Shea for the appellees.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*34] [**293] The appellants seek reversal of judgments on verdicts by a jury finding the driver of the tractor-trailer belonging to the Darienzo Trucking Corporation guilty of negligence, directly contributing to an accident which damaged the appellees.  The Trial Court rejected motions for directed verdicts at the conclusion of the plaintiffs' case, and at the conclusion of the whole case, and also refused to grant motions for judgments notwithstanding the verdicts.

   It is necessary, therefore, to consider the evidence, and in so doing to resolve all conflicts in favor of the plaintiffs below, the appellees here, and to assume the truth of all evidence and all inferences properly to be deduced from such evidence which may support plaintiffs' [***4] claims.

   The accident occurred in October about 6:00 P.M. on the southbound by-pass on U. S. Route 1, in Laurel, Maryland.  There are four lanes and on each side is a gravel shoulder twenty-four to thirty inches wide.  At the beginning of the by-pass, there is a [**294] sign showing the speed limit to be thirty-five miles per hour.  There is another such sign approximately one-tenth of a mile beyond the first.  At the west side of the road about two-tenths of a mile south of the second of these signs is a Blue Sunoco filling station. North, towards Baltimore from this station, is a restaurant known as the Flamingo, and beyond that is an Esso filling station, which is about one thousand feet on the Baltimore side of the Sunoco station. One of the plaintiffs, Theron Wolfe, had driven his car, in which were four passengers, [*35] into the Sunoco station for gasoline, had been served, and had pulled away from the tanks, but was still some thirteen feet off the boulevard, waiting to proceed south, when the accident reached its crescendo.  Benjamin Archer, one of the passengers, said that while Wolfe was waiting for the traffic to clear so that he could get back on the highway, [***5] the tractor-trailer, owned by one appellant and operated by the other, ran through the filling station out of control and hit the Wolfe car as it sat in the driveway of the filling station. The witness said that as he was watching, he saw "the trailer make a swerve and to the outer edge of the road, and swerve back towards the tractor and the next come through the filling station." The tractor-trailer was three hundred feet away when he first saw it; he knows this because he measured it with a steel tape.  The witness drives thirty thousand miles a year and has been driving since 1914; he estimates that the truck was travelling in the neighborhood of fifty miles an hour when he first saw it.  The tractor-trailer knocked down the steel sign post of the filling station which supported a neon sign and broke the air pump.  The Wolfe car was damaged severely.  The trailer turned over on it and the tractor demolished the rear.  The trunk part was completely demolished.  Also damaged in the accident was a Nash automobile parked at the filling station.

   The trailer was smashed beyond repair.  Archer said he heard the truck driver's explanation of the accident to the State Trooper to this[***6] effect: "a station wagon cut in on him, passed by him, and cut short in front of him, is why he swerved the first time, or why he lost control of the truck." Archer did not see any vehicle cut off the tractor-trailer.

   Another witness for the plaintiffs, Leicester Cabey, was in the Esso station getting gas for a truck he was driving. It was parked on the outside pump near the right hand lane. He observed a tractor-trailer pass him, his attention was called to it by its speed and he spoke of it to by-standars.  He estimated the speed at some [*36] forty or forty-five miles an hour.  He said that the truck driver, when he talked to him about half an hour after the accident, said that a taxi-cab had pulled in and cut him off.

   Another passenger in the automobile, Thomas Dailey, says that the speed of the tractor-trailer was approximately fifty miles an hour just before it hit the steel pole supporting the neon sign at the filling station.

   The filling station attendant, testifying for the defendants, said that he heard a very loud and very shrill blast from an airhorn, and described this as a horn carried on most large vehicles such as tractor-trailers. He looked around to see[***7] what had happened because of the noise of the horn, and as he looked, the tractor-trailer and this other vehicle were some three hundred feet away from him.  He saw the tractor-trailer in the extreme right hand lane and he also saw what was either a station wagon or a town and country sedan in the next lane. He was looking into two sets of headlights.  He then testified: "As I said before when I looked around at this horn blowing, then I heard these brakes along about the time I heard the airhorn . . .; I looked and it looked like these two sets of headlights were merging together . . . I heard a rendering crash; it sounded like metal scraping to me; it wasn't too shrill or loud; it didn't last too long; the tractor-trailer come on out into the gravel driveway there and got to swinging back and forth like this;".  At this point the witness ran for safety, and then heard the crash as the trailer hit the post which was holding the neon sign and did the damage which has been described.  This witness estimates the speed of the tractor-trailer at thirty to thirty-five miles an hour.  On cross-examination, [**295] he said that he first heard the airhorn and then he heard the brakes, [***8] and he also stated that if the vehicles did lock, they pulled apart immediately.

   The driver of the tractor-trailer said that he was coming from New York to the Quantico Marine School in Virginia, driving a White tractor with a Fruehoff trailer loaded with potatoes, and the gross weight of the tractor-trailer [*37]and the potatoes was about thirty-nine thousand pounds.  His description of the accident was: ". . . as I was coming down the No. 1 highway, a fellow in a station wagon, it was a car in other words, pulled over on me; I blowed my horn and he seemed to move; it seemed to me he was going to cut into the filling station or off the road; I blew my horn at him; just then he got over to the front of my truck, his back end touched the front of my truck which automatically fused the wheels and run me over in the gravel; once I got over in the gravel, quite naturally as anyone knows if you run over in the gravel shoulder, it will automatically throw your truck; well I kind of got my truck straight; I had my brakes on; I pushed on the accelerator, trying to get enough speed to pull it back straight; the proper way to get a tractor straight is to start jacking on it so I had it[***9] almost straight; I couldn't get it back on the highway; I hit the island; that automatically tore my trailer in half; then the tractor run up in to Mr. Wolfe's car." He says he was driving around thirty to thirty-five miles an hour.  In response to a question as to whether the station wagon had actually passed him, he said: "Well, he got up beside me, when I blew my horn it looked like he turned back over, like he was going off the road in the station." He was asked when he applied his brakes. His answer was: "As soon as the other vehicle come in contact with me, I did apply my brakes."

   A taxi-cab driver testified that he was driving back to Laurel from the direction of Baltimore and he overtook the tractor-trailer in the extreme right lane and the station wagon in the lane next to it on the left.  He was approaching to pass over in the third lane, going between thirty-five and forty miles an hour.  As he got near the two vehicles, he heard a horn blow and then he saw the tractor go over into the dirt.  The station wagon stopped soon thereafter and the driver was standing beside it.  The taxi driver pulled up behind him.  Then suddenly, the driver of the station wagon jumped in his [***10]automobile, slammed his door and sped off.  [*38] The taxi-driver did not take the license number of the station wagon, explaining that "I didn't know the man had been in it or I could very easily have gotten the man's number." When he was asked whether he saw the station wagon pull around in front of the tractor-trailer, his reply was: "From where I was it looked like he wasn't actually pulling around it; it looked like to me he was trying to crowd him, more like this." He heard the horn blow but he did not hear the brakes applied.
 
   The appellants base their contention that the Court should have directed a verdict on the ground that there was no evidence to show that the driver of the truck was guilty of any negligence directly contributing to the injuries complained of.  They say that the plaintiff must meet the burden of proving negligence on the part of the defendant, and in addition, must prove that such negligence was the proximate cause of the damage claimed.  They argue that there is no evidence sufficient to show that the tractor-trailer was going at an excessive rate of speed, and that even if the jury properly could find excessive speed, the speed did not directly cause[***11] or contribute to the accident.  They say that the sole cause of the accident was the station wagon which cut in front of the tractor-trailer, throwing it out of control.  This, they contend, makes the sole proximate cause of the injuries of the plaintiffs the negligence of the driver of the station wagon. The appellants rely on cases such as Sun Cab Co. v. Faulkner, 163 Md. 477, 163 A. 194, and Sonnenburg v. Monumental Motor Tours, 198 Md. 227, 81 A. 2d 617. In the Sun Cab case, the taxi-cab in which the plaintiff was riding approached a street intersection, favored by a green light, at a speed in excess of that permitted by law. Another taxi-cab, carrying an injured man hurriedly to a hospital at the directon of a police officer, [**296] ran through the red light.  The two drivers came within sight of each other at a distance of thirty feet apart, and both swerved.  The testimony was that they came together immediately [*39] after they came within sight of each other.  The Court considered, as a settled fact, that the driver claimed to be going at an excessive speed was entitled to go forward on the assumption that no one would attempt to drive across his right [***12] of way given him by the green light.  The Court found that if there was negligence in the rate of speed at which the cab was being driven, that negligence was not the cause of the collision. It found further that there was no foundation in fact to show that if the cab had been driven at a reduced speed, its driver might have avoided the collision after the two cabs came within sight of each other.  The Court said further, that the contribution of the speeding cab was only that of being there at the moment, "a circumstance which might have arisen with or without negligence in approaching the place." [163 Md. 477, 163 A. 195]

   In the Sonnenburg case, a bus proceeding south on a boulevard, was struck by a car coming west on a side street.  As a result, the bus ran across the sidewalk, through a store, and into the wall of a residence.  The car had violated the right-of-way of the bus by entering the boulevard. The claim was that the excessive speed of the bus was evidence of negligence. The Court found that there was no evidence that the speed of the bus was excessive or that, if it was, "it had any causal relation to the damage to appellant's property." [198 Md. 237, 81 A. [***13] 2d 621]

   This Court has often recognized that speed in excess of that permitted by law is not always or necessarily evidence of negligence which gives rise to liability.  See Gudelsky v. Boone, 180 Md. 265-70, 23 A. 2d 694, where this rule is stated and a number of cases cited in support.

   On the other hand, it has often been held that speed may be evidence of negligence. In Wolfe v. State, for use of Brown, 173 Md. 103, 117, 194 A. 832, it is pointed out that speed takes color and significance from the facts and circumstances in which it is found.  In Bozman v. State, to Use of Cronbrandt, 177 Md. 151, 9 A. 2d 60, the Court held that "Excessive speed, which may constitute [*40] negligence if it contributes to an accident, may be inferred from such testimony as that the brakes were put on too late, or that the car did not stop until it had gone an extraordinary distance after the brakes were applied.  The jury is not compelled to believe that the witnesses for either side are accurate in their testimony regarding the speed or the manner of operation of a motor vehicle." In Powers v. State, 178 Md. 23-28, 11 A. 2d 909, there was testimony as to excessive speed[***14] and the Court held that the testimony as to speed, the impact against the guard rail, and other facts, justified the trial court in submitting the case to the jury.  The cases hold that in order to justify a directed verdict, the evidence should admit of no inference of negligence in the operation of the automobile.

   We think there is in this case evidence from which the jury could find that the tractor-trailer, weighing with its load almost twenty tons, was being driven at a speed beyond that permitted by law and at a speed fraught with foreseeable potential and dangerous consequences in the environment in which it was indulged.  We think that it cannot be said, as a matter of law, that this negligent operation did not directly contribute to the damage to the vehicles parked in the filling station and their occupants.  It must be noted that the Sun Cab Case and the Sonnenburg case both involved accidents in which a favored vehicle not reasonably to be charged with anticipation of what ensued, was struck by an unlawful interloper and that the accidents happened with such speed and suddenness that the opportunity for avoidance on the part of the favored car was absent to a point[***15] which made the negligence of the interloper the sole proximate cause of the collisions.

   In this case the evidence did not require the Court or the jury to find that there was any such sudden intervening cause, independent of the operation of the tractor-trailer, which alone could account [**297] for the happening of the accident.  This is not a right of way or intersection case.  There was an appreciable length of time while [*41] both vehicles were running along the road before either the impact between the two or the crowding of the truck by the station wagon, whichever occurred.  This is clear from the evidence of several witnesses for the appellees and from the testimony of the driver of the truck himself.  From the evidence the jury could reasonably find that the tractor-trailer was speeding in an area where the presence of filling stations, restaurants, stores and other abutting activities which require reduced speed limits in built up neighborhoods adjoining a busy highway would cause traffic anticipating lawful and proper speed thereon frequently to leave or enter the boulevard, and could further find that when the station wagon came abreast of the larger vehicle[***16] and gave signs that it was about to turn into the right hand lane, the driver of the tractor-trailer had an opportunity and an obligation to apply his brakes in place of blowing his airhorn.  There was testimony that he blew the horn before he applied the brakes. Indeed, he himself admitted that he did not apply his brakes until the back end of the station wagon touched his truck. The jury could likewise determine that if he had been proceeding at a reasonable rate of speed and had applied his brakes when he observed that the station wagon might obstruct his lane, or come unduly close, the impact would not have taken place and the tractor-trailer would not have gone out of control.  The jury, not unreasonably, could have decided that if the speed of the tractor-trailer had been reasonable, the fact that the driver pulled over, or that the truck swerved over on the gravel shoulder, would not have produced the uncontrollable effect on the vehicle which did occur at the high rate of speed at which it was travelling.  So also the jury could have found that if the rate of speed had been reasonable and all the events occurred which the driver of the truck testified did occur, yet the large[***17] vehicle could have been brought under control within the three hundred feet it travelled between the meeting with the station wagon and the damage to the filling station. The jury was not required [*42] to believe the explanation of the driver of the tractor-trailer that it was necessary to, and that he did, accelerate the vehicle in an effort to pull it straight after he had applied his brakes. They may have believed from the evidence that his operation of the heavy vehicle, during the emergency in which he found himself, was negligent rather than skillful, or in the words of Judge Bond, speaking for the Court in Newman v. Stocker, 161 Md. 552, 157 A. 761, in describing a similar situation, the jury "might still, we think, conclude that the subsequent acceleration of the speed of the car, to which the defendant testified, was a mistake which a driver exercising due care would not have made, and was the cause of the collision with the pole." See also Consol. Gas Co. v. O'Neill, 175 Md. 47, 200 A. 359.

   In Ness v. Males, 201 Md. 235, 93 A. 2d 541, a car entered the boulevard and turned left, and was then struck by a tractor-trailer proceeding towards the car.  Judge[***18] Henderson, speaking for the Court said that the jury might have found that the accident resulted from "the swinging across the center line of the unloaded trailer, bouncing on the rough downhill surface when the air brakes were applied to a vehicle moving at a high rate of speed".  The owners of the tractor-trailer contended that as far as causation is concerned, it was immaterial where the accident occurred if the braking action that made the trailer swing was made necessary by the sudden intrusion of the unfavored vehicle.  The Court said that the jury might well find that the truck driver was at fault, not for relying upon his right-of-way, but "for driving at a high speed over a hill around a curve where he knew the visibility was limited, past a filling station where parked vehicles were to be expected and the room for passage might be narrowed." The Court then said, in considering whether this was negligence, "the jury could consider all the surrounding circumstances, including the propensity of unloaded trailers to swing when operated downhill on a rough surface.  If the situation presented could properly be described [*43][**298] as an emergency, it was largely of[***19] his own creation and at least presented a question for the jury".

   We think that the similarity between that case and the facts and the underlying probable cause of the accident in this case is convincing.  Here the driver of the tractor-trailer, the jury might well find, could reasonably have foreseen that in a built up neighborhood there was real probability of sudden intrusions on the highway, or the crossing from one lane of traffic to another, which would necessitate a sudden stop of a heavily loaded trailer, and that if he operated at excessive speed this might cause a swerving, making it difficult, if not impossible, to control the vehicle.  We think the Trial Court was correct in permitting the jury to pass on the questions of negligence.

   Judgments affirmed, with costs. 

BURKERT et al. v. SMITH et al. 
No. 77, October Term, 1952
 
Court of Appeals of Maryland
 
201 Md. 452; 94 A.2d 460; 1953 Md. LEXIS 214

 February  6, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment reversed and case remanded for a new trial, with costs.

CORE TERMS:  stairway, door, entrance, tavern, stair, contributory negligence, floor, matter of law, invitee, stepped, duty, adjacent, occupant, customer, shuffleboard, invited, opened, front, glass, proprietor, flight, crowd, reasonably safe condition, adequate opportunity, front door, short time, left side, withdrawing, stair-step, unguarded

COUNSEL: Noah A. Hillman and C. Osborne Duvall for the appellants.

   Michael Paul Smith, with whom were W. Lee Harrison and Albert J. Goodman on the brief, for the appellees.

JUDGES: [***4]

   Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Sobeloff, C. J., delivered the opinion of the Court.  Henderson, J., dissents.

OPINIONBY: SOBELOFF

OPINION: [*454] [**460] In a suit for personal injuries sustained by a woman who fell down a stairway in [**461] a tavern, the trial court directed a verdict for the defendants, the owners of the building and the tenant who operated the tavern. The sole question for decision is whether in doing so the court committed error.

   The Judge briefly stated to the jury that the plaintiff (who, with her husband, brings this appeal) was guilty of contributory negligence as a matter of law. Although no mention was made by the trial court of the question of the defendants' primary negligence, it was argued in the briefs and orally in this court.  The question is necessarily involved in an examination of the Circuit Court's action, for even if it should be found to have been in error in holding the plaintiff guilty of contributory [*455] negligence the action may still not be disturbed if there was no sufficient evidence of the defendants' negligence to require submission to the jury.  Accordingly, our inquiry is as[***5] to both primary and contributory negligence.

   The facts are not seriously in dispute and may be briefly stated.  The hinges of the entrance door are on the right as one approaches from the outside, so that when the door is opened it swings from left to right into the tavern. On each side of the door was a window and there was a glass panel in the door itself.  On the left side of the room was a bar; on the right, shuffleboard, chairs and other usual paraphernalia.  Immediately to the left of the door, against the front wall, was a stairway leading to the cellar.  The head of the stairs was variously estimated to be from four to eight inches from the left side of the front door -- less than the width of the ordinary stair-step.

   Shortly before the accident the appellant, Mrs. Burkert, was shopping in a durg store adjacent to the tavern. There her husband left her to go next door, saying that she should call for him in the tavern when she had completed her mission in the drug store.  When the wife came to the tavern door she called her husband, who asked her to come in as he had not finished drinking his beer.  She entered and stopped just inside the door watching people play shuffleboard [***6]on the right side of the tavern. Thus, with her back toward the stairs, she stood a short time, estimated at not more than three or four minutes.  She then noticed through the glass panel of the front door the shadow of a person seeking entrance, and as the door opened inward she took one step back to make way.  When she did so, she fell down the stairs and was injured. Mrs. Burkert testified that she did not see the stairway as she entered and had never been in the place before.  The entrance was on the first floor and there is nothing in the record to indicate that she knew of the existence of the basement.

   The legal arguments for the appellants and the appellees follow the customary pattern.  The pertinent rules [*456] of law are even less in doubt than the practically undisputed facts.  It is the precise application of recognized legal principles to the present situation that presents the difficulty.

   The appellants invoke the familiar doctrine that the owner of premises owes a duty to an invitee to have them reasonably safe to avoid injury to the person who enters by invitation.

   The rule frequently enunciated in this and in many other states is that the keeper of a store[***7] or other place of business to which the public is invited is bound to exercise due care to have his premises and the approaches thereto in a reasonably safe condition, and will be liable for injuries sustained in consequence of a failure to do so.  Illustrative cases are: Dickey v. Hochschild, Kohn & Co., 157 Md. 448, 146 A. 282; O'Neill & Co. v. Crummitt, 172 Md. 53, 190 A. 763; Chalmers v. Tea Co., 172 Md. 552, 192 A. 419.

   The appellees on their part stress such cases as Yaniger v. Calvert Bldg. & Con. Co., 183 Md. 285, 37 A. 2d 263, where the plaintiff in some unexplained way fell out of a window not shown to be unusual in height, location or otherwise. There it was said: "The mere ownership of land or buildings does not render one liable for injuries sustained by persons entering thereon or therein; the owner is not an insurer of such persons even though [**462] he has invited them to enter, nor is there any presumption of negligence on the part of an owner or occupier merely upon a showing that an injury has been sustained by one while rightfully upon the premises.  The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality[***8] or the danger therefrom to persons going upon the property.  It is when the perilous instrumentality is known to the owner or occupant, and not known to the person injured, that a recovery is permitted.  * * * And hence there is no liability for injuries from dangers that are obvious, or as well known to the persons injured as to the owner or occupant."

   [*457] As a statement of a general rule, this will readily be granted but as for the correct answer to our problem it holds hardly a clue, for the circumstances of the two cases are so unlike.  In Maryland and elsewhere cases are to be found involving injuries to invitees falling down stairways and a consideration of the respective duties of owner and occupant on the one hand and invitee on the other.  Examination of these cases is useful to guide us in our approach to a solution, but always it must be borne in mind that general expressions to be found in reported cases cannot be given rigid and undiscriminating application to particular facts.  An illustration of this problem appears in the case of Long v. Joestlein, 193 Md. 211, 217, 66 A. 2d 407, 409. There the court said: "In the case at bar the stairway was in no way [***9]unusual in construction.  Nor was there evidence of any defective condition.  Hence, it did not present any unusual danger.  The law is clear that the maintenance of a well lighted stairway leading down from the floor to which persons are invited, guarded on all sides except where the steps meet the floor, does not constitute negligence which will render the owner liable for injuries to an invitee who falls down the stairs. F. W. Woolworth & Co. v. Conboy, 8 Cir., 170 F. 934, 23 L. R. A., N. S., 743." But these words were spoken in the case of an employee in a home, not of an invitee to a public place.  Judge Delaplaine speaking for this Court in Long v. Joestlein, supra, said: "One entering a private residence, even for purposes connected with the owner's business, is entitled to expect only such preparation as a reasonably prudent householder makes for the reception of such visitors." Moreover, after stating the general rule that the presence of different floor levels connected by a step is not such a dangerous condition as to make the owner or occupant of the premises liable in damages for injury to an invitee, the opinion carefully adds, "unless, owing to the character, [***10] location or surrounding conditions of the step, a reasonably careful person would not be likely to expect or see it."

   [*458] The Long v. Joestlein facts contrast with those of our case.  Here the appellant stopped, as she had the right to do, near the door and stepped back instinctively to allow the door to open and admit a person seeking entrance. Acts which, if done in calm deliberateness, might be judged negligent, may yet not be so regarded where done spontaneously in response to a normal impulse without adequate opportunity for reflection.  A jury might well conclude that when Mrs. Burkert stepped back to admit someone she saw through the glass door panel her behavior was normal and free from negligence.  At all events the question admitted of more than one reasonable answer.  It falls into what has been termed the twilight zone, neither entirely dark nor entirely light.  It is not a case of contributory negligence as a matter of law.

   While it may be argued with great plausibility that she should have seen the stairway it can be argued also with cogency that there was no reason for her to suppose that a stairway would be placed within a few inches of the door in a [***11]public place, for that is a most unusual arrangement.  The appellants' contention is not entirely without force that the location of a stairway hard by the entrance door may constitute a trap or pitfall, even though well lighted.  To say that the fall occurred in daylight is not to dispose of the problem, for the injured woman claims that the location of the stairway was so unexpected that [**463] it constituted a danger to her of which she was unaware, and that she was put off her guard despite the lighting conditions.  It would not be an unreasonable contention that some gate swinging away from the stairway should have been placed there, and this could have been done at nominal cost.  It is not our function and was not that of the trial judge to decide this conflict, but to recognize its existence and that it is fairly debatable. Decision was for the jury.  These competing arguments present a question peculiarly appropriate for a jury, because it must be recognized that a reasonable mind could conclude that there was [*459] negligence in having an unguarded stairway so close to the entrance; also that a jury might reasonably conclude that the conduct of the injured woman[***12] in stepping aside to allow the front door to be opened was normal and free from contributory negligence on her part.  It is necessary to remember the rule which has been so often repeated, that to justify the trial court in withdrawing the case from the consideration of the jury on the ground of contributory negligence, the negligent act relied on must be distinct, prominent and decisive, and one about which ordinary minds would not differ.

   Some courts have resolved the question in somewhat similar fact situations by holding owners and operators of a store negligent in placing the stairway close to the door, and the injured person free from negligence in not noticing the stairway; other courts have come to the opposite conclusion.  Some saw in the dispute a jury question, others have ruled as the trial court did in this case, withdrawing the matter from the jury.  In Marguis v. Goldberg, (Mo. App.) 34 S. W. 2d 549, the distance between the entrance and the stairway was greater than in this case (three or four feet), yet the matter was submitted to the jury. See also Sante Peterson, Admr. v. Alf Hendrickson & Wife, 335 Ill. App. 223, 81 N. E. 2d 266; Delmore v. Polinsky[***13] , 132 Conn. 28, 42 A. 2d 349; Cheney v. S. Kann Sons & Co., D. C., 37 F. Supp. 493; Johnson v. Pulidy, 116 Conn. 443, 165 A. 355.

   Such factors as the close proximity of the steps to the entrance, the short time during which appellant was in the tavern, the attraction of the shuffleboard game, the appellant's ignorance of the peril lurking behind her, the swift but natural response of the appellant in stepping away from the door upon realizing that an incoming patron would open the door on her -- all of these are matters for consideration in determining contributory negligence. While the facts in Chalmers v. Tea Co., 172 Md. 552, 192 A. 419, were not like those here the principle announced in that case by Judge Offutt [*460] is applicable to this case.  He said: "There is a substantial difference between the kind and degree of vigilance which a traveler on a street must exercise to avoid danger and that which is required of a customer in a store.  The storekeeper expects and intends that his customers shall look not at the floor but at the goods which he displays to attract their attention and which he hopes they will buy.  He at least ought not to complain, if they[***14] look at the goods displayed instead of at the floor to discover possible pitfalls, obstructions, or other dangers, or if their purchases so encumber them as to prevent them from seeing dangers which might otherwise be apparent.  Patrons are entitled therefore to rely to some extent at least upon the presumption that the proprietor will see that the passage ways provided for their use are unobstructed and reasonably safe."

   The appellees put heavy reliance upon the language of Mr. Justice Holmes in the Massachusetts case, Hunnewell v. Haskell, 174 Mass. 557, 55 N. E. 320, where it was said: "There is no duty on the part of a shopkeeper to give warning of the presence of an ordinary flight of stairs in broad daylight, or to guard the necessary access to it, even if there is a crowd in his shop.  * * * Every one who is on an upper story knows that there probably are stairs from it somewhere, and must look out for them.  * * * The case is different from that of a hole in the floor which commonly is covered, and which is of a kind not to be expected. The recited facts are obviously unlike the case before us.  In the Massachusetts case the stairs were normal not only in themselves but[***15] in their location.  In the case here the [**464] abnormal location of the steps in relation to the entrance is the distinguishing feature and the alleged cause of the injury.

   An examination of Recreation Etc. Corp. v. Zimmerman, 172 Md. 309, 191 A. 233, may shed light on our problem.  A nonpaying spectator at defendant's bowling alley, while descending steps attached to a stand of seats intended for spectators, was injured due to the fact that [*461] the drop to one of the steps was twice the usual drop, and plaintiff failed to notice this.  It was held that the questions if whether plaintiff might, though exercising care, have been misled by this condition, and whether the defendant in not foreseeing the danger and acting accordingly was negligent, were for the jury.

   If it is proper for a jury to pass on the negligence vel non of one descending a flight of stairs and whose attention is presumably directed to the stairs, for the reason that one is not necessarily held accountable for not seeing what he has no reason to expect or to look for, then the appellant here might be held not to have committed an act of contributory negligence as a matter of law. See Morgenstern [***16]  v. Sheer, 145 Md. 208, 125 A. 790, where it was held proper to refuse a directed verdict against a plaintiff who fell down an unguarded elevator shaft despite his admission that there was sufficient light in the adjacent hallway to enable him to see twelve feet ahead. See also, II Restatement of Torts, 943.

   We are of the opinion that this case should have been submitted to the jury. Accordingly, the judgment will be reversed and the case remanded for a new trial.

   Judgment reversed and case remanded for a new trial, with costs.

DISSENTBY: HENDERSON

DISSENT: Henderson, J., delivered the following dissenting opinion.

   There are few buildings anywhere that do not contain stairways, and it is not suggested that the existence of a stairway is negligence per se.  But it is now held that the mere location of a stairway adjacent to a door is sufficient to charge a landlord with negligence.  There must be thousands of buildings, erected in full complicance with the building codes, where such a condition exists.  Apartments with doors opening on stair landings are a familiar example.  There is no evidence that the stairway in question was improperly constructed, defective or badly lighted. [***17] To correct the defect found [*462] it will apparently be necessary to remodel the whole structure and move the staircase to an undetermined distance from any door.

   When we consider the question of contributory negligence the case seems even clearer.  The plaintiff could hardly have failed to see the stairway when she opened the door. Certainly she could have seen it if she had looked, and it was her duty to look.  Nevertheless, she chose to take up a position immediately in front of the door, where she blocked the entrance, and at the very top of the stairway, to which she turned her back.  After she had stood there for three or four minutes and someone was about to enter, she stepped backwards without looking and fell.  To step back without looking is seldom a prudent act; to do so when she had voluntarily assumed a position blocking the entrance, at the head of a plainly visible stairway, is so manifestly imprudent in my mind as to leave no room for doubt.

   There seems to be no Maryland case directly in point.  But in Yaniger v. Calvert Bldg. & Con. Co., 183 Md. 285, 37 A. 2d 263, an action for injuries sustained in falling through a tall open window immediately adjacent[***18] to an elevator was held bad on demurrer.  The Court took pains to distinguish Recreation Centre Corp. v. Zimmerman, 172 Md. 309, 191 A. 233, on the ground that in that case there was a defect in the stairs, or missing step, by which the plaintiff was "caught unawares".  The cases of Elzey v. Boston Metals Co., 189 Md. 566, 56 A. 2d 692, Long v. Joestlein, 193 Md. 211, 66 A. 2d 407, and Neely v. Brewer, 194 Md. 691, 71 A. 2d 872, illustrate the lengths to which this court has gone in denying recovery as a matter of law where there was no defect except the mere existence of an opening, stairwell or obstruction that was easily apprehendable.

   While there are instances in other states where cases have been allowed to go to a [**465] jury on somewhat similar facts, a careful analysis will disclose that they almost always are based not on the mere existence or location of a stairway, but on active conduct by the proprietor or [*463] lessee, calculated to trap a customer, as, for example, the display of goods in such a manner as to hide the steps or divert the customer's attention, or the gathering of an unmanageable crowd in response to advertisements of sales.  In[***19] the absence of such factors, the soundest rule is that stated in F. W. Woolworth & Co. v. Conboy, 8 Cir., 170 F. 934, 936, 23 L. R. A., N. S., 743, cited with approval by this court in Long v. Joestlein, supra: "Open stairways leading from one story to another are a part of the ordinary equipment of such [store] premises.  Even when elevators are provided, there is usually a stairway adjacent to the shaft, and there are frequently other stairways in such rooms. Such stairways are closed on three sides, as was the one in this case; but the entrance is left open.  Any other arrangement would be manifestly impracticable, and defeat the very object which the stairways are designed to accomplish.  Such open stairways being an ordinary feature of store premises, the public, when resorting there, assume the risk arising therefrom, and are bound to protect themselves by the use of their eyes against such dangers.  Mr. Justice Holmes, then speaking as Chief Justice of the Supreme Court of Massachusetts, states the rule applicable to such a situation as follows, in Hunnewell v. Haskell, 174 Mass. 557, 55 N. E. 320:

   'There is no duty on the part of a shopkeeper to give warning[***20] of the presence of an ordinary flight of stairs in broad daylight, or to guard the necessary access to it, even if there is a crowd in his shop.  The sides of the opening were guarded.  Every one who is on an upper story knows that there probably are stairs from it somewhere, and must look out for them.  The case is different from that of a hole in the floor which commonly is covered, and which is of a kind not to be expected.'"
See also Bauhof v. Adair, 162 Pa. Super. 92, 56 A. 2d 370; Evans v. Orttenburger , 242 Mich. 57, 217 N. W. [*464] 753; Myers v. Ben Snyder, Inc., 313 Ky. 832, 233 S. W. 2d 1016; Ball v. Atlantic City Ambassador Hotel Corp., 137 N. J. L. 744, 57 A. 2d 362. I think the case was properly withdrawn from the jury and the judgment should be affirmed. 

SALSBURG v. STATE 
No. 49 October Term, 1952
 
Court of Appeals of Maryland
 
201 Md. 212; 94 A.2d 280; 1953 Md. LEXIS 188

 February  5, 1953, Decided

   SUBSEQUENT HISTORY: [***1]

   Order Staying Mandate Filed March 5, 1953, Pending Decision of Supreme Court of United States.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  Fourteenth Amendment, equal protection, Bouse Act, classification, illegally procured, admissible, territory, paraphernalia, Constitutional Law, gambling, system of laws, territorial, seizure, misdemeanors, immunity, negroes, monopoly, substantial relation, right to engage, illegally, procured, inadmissible, regulation, occupation, guaranty, privacy, deprive, adding, rear, Fourth Amendment

COUNSEL: Herbert Myerberg, with whom were Joseph Leiter and Louis M. Strauss on the brief, for the appellant.

   Ambrose T. Hartman, Assistant Attorney General, with whom were Edward D. E. Rollins, Attorney General, Albert J. Goodman, State's Attorney for Anne Arundel County, and C. Osborne Duvall, Assistant State's Attorney, on the brief, for the appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins and Henderson, JJ.  Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*215] [**281] Julius Salsburg, who was convicted by the Circuit Court for Anne Arundel County of bookmaking on horse races, is challenging here the constitutionality of Chapter 704 of the Laws of 1951, which amends[***6] the statutory rule of evidence known as the Bouse Act, Laws 1929, ch. 194, by adding a proviso that the Act shall not prohibit the admission of illegally procured evidence in Anne Arundel County in prosecutions for violations of the State gambling laws.

   The Act was also amended by Chapter 710 of the Laws of 1951, which provides that the Act shall not prohibit the admission of such evidence in Wicomico and Prince George's Counties.  Thus the Act, as codified in Code 1951, art. 35, sec. 5, provides as follows:

   "No evidence in the trial of misdemeanors shall be deemed admissible where the same shall have been procured by, through, on in consequence of any illegal search or seizure or of any search and seizure prohibited by the Declaration [*216]of Rights of this State * * *.  Provided, further, that nothing in this section shall prohibit the use of such evidence in Anne Arundel, Wicomico and Prince George's Counties in the prosecution of any person for a violation of the gambling laws as contained in Sections 303-329, inclusive, of Article 27, sub-title 'Gaming', or in any laws amending or supplementing said sub-title."

   Salsburg and two other men, Joseph John Rizzo and[***7] William Raynard Nicholson, were arrested by five officers of the Anne Arundel County Police Department on May 21, 1952, in a two-room building in the rear of a garage along the Governor Ritchie Highway at Brooklyn.  When the police officers appeared on the scene, the front door was open but the door to the rear room was locked. They rapped on the door to the rear room, but, as no one answered, they broke the door open with an ax.  Upon entering the room they arrested defendants and seized three telephones, two adding machines, racing forms and other paraphernalia. While the officers were in the building many telephone calls came from persons wanting to make bets.

   Before the trial defendants filed motions to suppress the evidence and dismiss the proceedings.  It was conceded that the police officers raided the building without a search warrant and that they seized the gambling paraphernalia illegally. Defendants contended that the 1951 amendment of the Bouse Act violates the Fourteenth Amendment of the Constitution of the United States, and that the paraphernalia were inadmissible under the Bouse Act as it stood before the amendment.  The Court overruled the motions and admitted [***8]the paraphernalia [**282] in evidence.  The Court thereupon found each defendant guilty and sentenced each to the Maryland House of Correction for six months and to pay a fine of $1,000.

   On December 12, 1952, the Court of Appeals held, in an opinion by Chief Judge Markell, that Rizzo and [*217] Nicholson could not complain of the illegality of the search and seizure, because they had no interest in the raided premises.  Salsburg, on the other hand, testified that he was lessee of the building at the time of the raid.  Therefore, the paraphernalia would be admissible as to him only in case the 1951 statute is valid.  We ordered a reargument of his appeal on the question of the constitutionality of the statute.  Rizzo v. State, 201 Md. 206, 93 A. 2d 280.

   Prior to the enactment of the Bouse Act in 1929, this Court held that where evidence offered in a criminal trial is otherwise admissible, it will not be rejected because it was obtained illegally. Meisinger v. State, 155 Md. 195, 141 A. 536, 142 A. 190; Heyward v. State, 161 Md. 685, 158 A. 897; Baum v. State, 163 Md. 153, 161 A. 244. This is still the rule in prosecutions for felonies in this State.  [***9] Marshall v. State, 182 Md. 379, 35 A. 2d 115; Delnegro v. State, 198 Md. 80, 86, 81 A. 2d 241, 244. The Bouse Act changed the rule only in trials for misdemeanors.

   We find no reason to hold that the 1951 statute, making illegally procured evidence admissible in certain trials in Anne Arundel County, is in conflict with the Due Process Clause of the Fourteenth Amendment of the Federal Constitution or Article 23 of the Maryland Declaration of Rights.  It is true that in Weeks v. United States (1914), 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, the United States Supreme Court held that evidence obtained in violation of the Fourth Amendment is inadmissible in the Federal courts.  But in Wolf v. People of State of Colorado (1949), 338 U.S. 25, 69 S. Ct. 1359, 1361, 93 L. Ed. 1782, the Court explicitly stated that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure.

   In explanation of the rule, Justice Frankfurter made the following comment: "The security of one's privacy against arbitrary intrusion by the police -- which is at [*218] the core of the Fourth[***10] Amendment -- is basic to a free society.  * * * Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment. But the ways of enforcing such a basic right raise questions of a different order.  How such arbitrary conduct should be checked, what remedies against it should be afforded, the means by which the right should be made effective, are all questions that are not to be so dogmatically answered as to preclude the varying solutions which spring from an allowable range of judgment on issues not susceptible of quantitative solution."

   Appellant vigorously protested that the statute, partially exempting Anne Arundel County from the operation of the Bouse Act, will tend to give encouragement to the county police to violate the law by invading private homes to make searches and seizures without a warrant.  A similar protest was made by the defendant in People v. Defore (1926), 242 N. Y. 13, 150 N. E. 585, 588, 589, but the Court of Appeals of New York announced that it preferred the State rule to the Federal rule.  In that case Judge Cardozo said in the[***11] opinion of the Court: "We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would be.  The pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crime the most flagitious. * * * We do not know whether the public, represented by its juries, is to-day more indifferent to its liberties than it was when the immunity was born.  If so, the change of sentiment without more does not work a change of remedy. Other sanctions, penal and disciplinary, supplementing the right to damages, have already been enumerated.  No doubt the protection of the statute would be greater from the point of view of the individual whose privacy had been invaded if the [**283] government were required to ignore what it had learned through the invasion.  The question is whether protection [*219] for the individual would not be gained at a disproportionate loss of protection for society.  On the one side is the social need that crime shall be repressed.  On the other, the social need that law shall not be flouted by the insolence of office.  There are dangers in any choice." [***12]

   We now pass to the important question whether appellant was denied the equal protection of the laws when the Circuit Court for Anne Arundel County, in accordance with the 1951 statute, admitted illegally procured evidence against him at his trial for gambling, while the law makes illegally procured evidence inadmissible in trials for the same offense in twenty counties and the city of Baltimore.

   Ever since the beginning of our government, American political philosophy has been based upon principles of equality.  Protection from unequal operation of the laws entitling a person to like privileges and burdens accorded to other persons in like circumstances is a basic American concept.  It was thus natural that this concept was expressed in the guaranty of protection from arbitrary and unjust disparity of treatment contained in Federal and State Constitutions.  The constitutional guaranty of equality is construed, however, to give full play to the powers of government so long as the exercise of those powers is clearly not an infringement of the rights of citizens.

   The principal guaranty of equality in American Constitutions is the clause in the Fourteenth Amendment to the Federal Constitution[***13] which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." This amendment was proclaimed to be in force July 28, 1868.  It was nearly five years afterwards when the Supreme Court construed the Amendment in the Slaughter-House Cases (1873), 16 Wall. 36, 81, 21 L. Ed. 394, 410. The Amendment had been submitted to the people to give protection to the Negroes, who had been recently emancipated, but those cases raised questions of the extent [*220] of the police power of the State and the granting of a monopoly. The Legislature of Louisiana had granted a monopoly of the slaughter-house business in New Orleans in favor of one corporation, thereby depriving many citizens of the right to engage in that business.  The Court held that the statute did not violate any provision of the Fourteenth Amendment and that the subject of local monopoly was for the States, not for the Federal Government, to deal with.  In referring to the Equal Protection Clause, Justice Miller said in the opinion of the Court: "The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship[***14] against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.  * * * We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision."

   That prophecy proved to be false.  The majority of the litigants who have invoked the Equal Protection Clause have charged discrimination in economic legislation, rather than race discrimination.  It is now universally recognized that the Equal Protection Clause guarantees that equal protection shall be given to all persons under like circumstances in the enjoyment of their civil and personal rights; that all persons are equally entitled to acquire and enjoy property; that they shall have like access to the courts of the country; that no impediment shall be interposed to the pursuits of any person except as applied to the same pursuits by others under like circumstances; and that no greater burdens shall be laid upon one than are laid upon others in the same calling and condition.  Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 28 L. Ed. 923.

   It has been held[***15] that the power of the Legislature to regulate a business or occupation cannot be exercised arbitrarily or in such a manner as to deprive a citizen of rights, privileges, or property to which he is entitled [*221]as a matter of natural justice, except for the protection of some [**284]substantial public interest; nor can such power be exercised in such a manner as to impose upon members of a selected class burdens which are not shared by others in like circumstances.  In so far as a statute grants privileges to or places burdens upon an individual, or limits his rights, especially his right to engage in a particular business or occupation, such statute may be invalidated by an arbitrary or unreasonable classification or discrimination in respect to territory. Herbert v. County Com'rs of Baltimore County, 97 Md. 639, 644, 55 A. 376; Watson v. State, 105 Md. 650, 655, 66 A. 635; Clark v. Harford Agricultural & Breeders' Ass'n, 118 Md. 608, 620, 85 A. 503; Criswell v. State, 126 Md. 103, 109, 94 A. 549. The classification must be reasonable and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, and[***16] the law shall apply equally to all persons similarly situated within the territory described in the act.  Ocampo v. United States, 234 U.S. 91, 34 S. Ct. 712, 715, 58 L. Ed. 1231; Royster Guano Co. v. Commonwealth of Virginia, 253 U.S. 412, 40 S. Ct. 560, 64 L. Ed. 989; Ft. Smith Light & Traction Co. v. Board of Improvement, 274 U.S. 387, 47 S. Ct. 595, 597, 71 L. Ed. 1112. The classification is presumed to be reasonable in the absence of clear and convincing indications to the contrary, and the person attacking the classification has the burden of showing that it does not rest upon any reasonable basis but is essentially arbitrary.  Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S. Ct. 337, 55 L. Ed. 369.

   In State v. Shapiro, 131 Md. 168, 173, 101 A. 703, it was held by this Court that a statute requiring different rates of license fees for the privilege of dealing in junk, according to the population of the county or city in which the business is conducted, does not deny any person the equal protection of the laws.  On the contrary, in Dasch v. Jackson, 170 Md. 251, 269, 183 A. 534, the Court held that a statute providing for the [*222] licensing[***17] and regulation of paperhangers in the City of Baltimore denied equal protection of the laws, because it had no substantial relation to the public health or safety and there was no rational basis for the territorial classification. Likewise, we held that the Strip Mining Act, Laws 1947, Sp. Sess., ch. 16, which discriminated between operators of coal mines in Garrett County and those in Allegany County, was unconstitutional because there was no difference in the conditions in the two counties that would make strip mining a menace to public health and safety in Allegany but harmless in Garrett, and there was no rational basis for the territorial classification and no justification for the discrimination.  Maryland Coal & Realty Co. v. Bureau of Mines of State, 193 Md. 627, 69 A. 2d 471.

   These principles have been recognized in cases dealing with statutes imposing licenses, taxes and other burdens in the exercise of the police power of the State.  But those statutes are quite different from the statute now before us. This statute does no more than prescribe a rule of evidence.

   It is true that one of the intermediate courts in New York has held that where a statute dealing with[***18] bastardy proceedings in all parts of the State outside of the City of New York permitted testimony of the defendant as to access by others without corroboration, another statute requiring corroboration of such testimony in proceedings brought in the City of New York was unconstitutional.  Commissioner of Public Welfare v. Torres, 263 App. Div. 19, 31 N. Y. S. 2d 101. We are unwilling to base our decision on that opinion.  The Equal Protection Clause contemplates the protection of persons or classes of persons against unjust discrimination by the State, but it has no reference to municipal or territorial arrangements made for different portions of the State that do not injuriously affect or discriminate between persons or classes of persons within the municipalities or counties for which such regulations are made.  The State can establish any system of laws it sees fit [*223] for all or any part of its territory, provided that it does not encroach on the jurisdiction of the United States, and does not abridge the privileges and immunities of citizens of the United States, or deprive any person of [**285]due process of law or equal protection of the laws.  Thus it has been [***19] held that the Legislature has the power to declare that certain acts are criminal in some counties but not in others.  Davis v. State, 68 Ala. 58, 44 Am. Rep. 128, 132; People v. Hanrahan, 75 Mich. 611, 42 N. W. 1124. For instance, the equal protection of the laws is not denied by a State local option law under which the traffic in intoxicating liquors may be made a crime in certain territory and permitted elsewhere.  State of Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 24 S. Ct. 703, 48 L. Ed. 1062.

   In emphasizing the right of the State to establish its own system of laws, Justice Bradley said in State of Missouri v. Lewis (1880), 101 U.S. 22, 25 L. Ed. 989, 992: "If the State of New York, for example, should see fit to adopt the civil law and its method of procedure for New York City and the surrounding counties, and the common law and its method of procedure for the rest of the State, there is nothing in the Constitution of the United States to prevent its doing so.  This would not, of itself, within the meaning of the 14th Amendment, be a denial to any person of the equal protection of the laws.  If every person residing or being in either portion of the State[***20] should be accorded the equal protection of the laws prevailing there, he could not justly complain of a violation of the clause referred to.  For, as before said, it has respect to persons and classes of persons.  It means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes in the same place and under like circumstances.  * * * If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause in the 14th Amendment, there is no solid reason why there may not be such diversities in different parts of the same State."

   [*224] It has always been the policy of the State of Maryland to permit the enactment of local laws affecting only one county or the exemption of particular counties from the operation of general laws or some provisions thereof.  Stevens v. State, 89 Md. 669, 674, 43 A. 929, 931; Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67, 48 A. 2d 593, 600. Moreover, the right of a citizen to have his controversies determined by existing rules of evidence is not a vested right.  Rules of evidence relate to the remedies[***21] which the State provides for its citizens, and, like other rules affecting the remedy, they are subject at all times to modification by the Legislature.  Mobile, Jackson, & Kansas City R. Co. v. Turnipseed, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78; Luria v. United States, 231 U.S. 9, 34 S. Ct. 10, 58 L. Ed. 101. Rules of evidence are not a constituent part of any contract and are not of the essence of any right which a party may seek to enforce.  Generally speaking, therefore, the State, having the right to control procedure in its courts, has the power to regulate the admissibility of evidence without denial of equal protection of the laws.  Illinois Central R. Co. v. Paducah Brewery Co., 157 Ky. 357, 163 S. W. 239, 242. We, therefore, conclude that the statute assailed by appellant does not violate the Equal Protection Clause.

   For these reasons we hold that the paraphernalia, although procured by illegal search and seizure, were admissible. As we find no error in the ruling of the trial Court, the judgment of conviction will be affirmed.

   Judgment affirmed, with costs. 

COREY et al. v. CARBACK et al. 
No. 52, October Term, 1952
 
Court of Appeals of Maryland
 
201 Md. 389; 94 A.2d 629; 1953 Md. LEXIS 207

 February  5, 1953, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing, Filed March 2, 1953, Denied March 18, 1953.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  deed, parcel, trespass, lis pendens, conveyed, tract, clerk, plat, purchaser, feet wide, fregit, quare, constructive notice, clausum, motion to strike, easternmost, wharf, feet, amended declaration, boundary line, equity case, acre tract, westernmost, ejectment, ownership, resurvey, residue, action of trespass, parcels of land, strip of land

COUNSEL: Emanuel Klawans, with whom was Louis M. Strauss on the brief, for the appellants.

   George W. Baker, Jr., with whom were John G. Rouse, Jr., and Morton & Rouse on the brief, for the appellees.

JUDGES: Delaplaine, Collins, Henderson and Hammond, JJ.  Hammond, J., delivered the opinion of the Court.

OPINIONBY: HAMMOND

OPINION: [*392] [**631] In 1951 Daniel Paul Corey and Joseph Albert Corey, the appellants, brought an action in ejectment in the Circuit Court for Anne Arundel County, against Richard T. and Hazel I. Carback and John J. and Rosalie Carback, claiming ownership of land in Anne Arundel County, described in the Amended Declaration by metes and bounds, courses and distances.  The property so claimed and described is made up of three parcels, to each of which, title is derived in a separate way.  Fundamentally, the contentions of the parties as to ownership are answered[***6] by determination of the boundary line between two contiguous tracts of land called respectively "Poplar Plains" and "Poplar Ridge", the eastern boundary of Poplar Plains being the western boundary of Poplar Ridge.

   In 1888 Bernard Oberman acquired title to Poplar Plains.  In 1907 he conveyed two acres, comprising its northeast corner, to Henry Jacob Wickart, Jr. and his wife.  In 1910 he conveyed a one acre tract to the same grantees, the northern boundary of the one acre tract being the common boundary with the southern line of the first tract. In 1948 Wickart, by then divorced, conveyed the two tracts to John J. Carback and Rosalie Carback, his wife, two of the appellees.

   The remaining part of Poplar Plains became vested in Bruner R. Anderson in 1933.  In 1935 he conveyed a 13 acre tract to Daniel Patrick Corey and wife, the [*393] parents of the appellants.  The southern boundary of the one acre Wickart tract coincides with the easternmost part of the northern boundary of this 13 acre tract. Also in 1935, Bruner R. Anderson conveyed to Bertha H. Linthicum and A. Howell Linthicum what was left of "Poplar Plains".  In 1937 Bertha H. Linthicum and others conveyed to the Coreys[***7] a strip of land 30 feet wide, which was the same land over which was to run an unopened road 30 feet wide. This proposed road had been included in the description in the deed of 1935 to Corey and his wife as follows:
". . . to the west side of a road to be left open thirty feet wide along [**632]the eastern outline of the whole tract, hereinafter referred to, said road extending along the easternmost side of the whole tract of land as an approach to the wharf on Back Creek and with the use of said wharf and road in common with others . . ."
In 1950 Daniel Patrick Corey and his wife conveyed all of the property they acquired by the deed of 1935 and the deed of 1937 to their sons, Daniel Paul Corey and Joseph Albert Corey, the appellants.  In 1951 Bertha H. Linthicum, widow, and others executed and delivered a deed to the appellants, in which it was recited:
"WHEREAS, There is a residue of land lying between the Easternmost boundary of the property owned (or formerly owned) by Henry Jacob Wickart, as the same is described in a deed recorded among the said Land Records in Liber W. N. W. No.-6- folio 135, and the Westernmost boundary of the property now known as Poplar[***8] Ridge, and which was formerly owned by Joshua F. Johnson, Mabel V. Johnson, J. Purnell Johnson, and Lois P. Johnson; and,
"WHEREAS, the said Westernmost boundary of the said Poplar Ridge property was formerly in dispute, but was finally fixed and determined [*394] by an Agreement between the said Daniel P. Corey and Mabel F. Corey, his wife, and Joshua F. Johnson, Mabel V. Johnson, J. Purnell Johnson, and Lois P. Johnson, dated December 4th., 1940, which said Agreement is filed among the papers in the case of Joshua F. Johnson, et al, v. Daniel P. Corey and Wife, No. 22 Trials, October Term, 1940, in the Circuit Court For Anne Arundel County.
"WHEREAS, The said parties of the first part fully intended the said residue of land to be included with their original grants to Daniel P. Corey and Mabel F. Corey, hereinbefore referred to, and further that the said parties of the first part intended to convey the said residue of land to the said Daniel P. Corey and Mabel F. Corey by a Deed dated February 5th., 1941, but which said Deed, however, was not recorded;"
There was a further recital that the parties desired to confirm title in the appellants.  The deed granted and conveyed, [***9] as one tract, by metes and bounds, courses and distances, all of the land conveyed in the deed dated 1935 from Bruner R. Anderson to Daniel Patrick Corey and his wife, and all of the land conveyed in the deed of 1937 from the grantors of the present deed to the said Daniel Patrick Corey and his wife, and the additional property referred to in the recitals.  The description in the amended declaration in this case is the same description which appears in this confirmatory deed.

   In 1937 Joshua F. Johnson, and other Johnsons, acquared Poplar Ridge.  The owners subdivided this tract into a number of lots.  Lot No. 108, Poplar Ridge, as shown on "Plat of Section 1 of Poplar Ridge" and recorded among the Plat Records of Anne Arundel County, is the westernmost lot in Poplar Ridge and the westernmost boundary of Lot 108 coincides with the easternmost boundary of Poplar Plains.  The Johnsons conveyed Lot 108, with three other adjoining lots, to [*395] Glenn W. Murray and wife in 1948, and Glenn W. Murray and his wife conveyed those lots to the appellees, Richard T. Carback and Hazel I. Carback, his wife, later in 1948.

   On January 6, 1939, Joshua F. Johnson and his co-owners, brought an [***10]action of trespass quare clausum fregit against Daniel Patrick Corey, the father, (but not his wife) in the Circuit Court for Anne Arundel County, alleging that Mr. Corey had entered upon their said land and cut down certain trees, and claiming $500.00 damages.  This is generally referred to in the case as "No. 22 Trials, Oct. Term 1940".  Upon the plaintiffs' motion a warrant of resurvey was issued, directed to Edward Hall, Jr., county surveyor.  No return of the warrant was ever made by the surveyor, but after Mr. Corey's lawyer had struck his appearance, there was filed in the case, on December 4, 1940, an agreement between the plaintiffs, executed on their behalf by their lawyers, and the defendant, who executed it [**633] in proper person and as attorney-in-fact for his wife.  This agreement established a boundary line between the property owned by the Johnsons and the property owned by Daniel Patrick Corey and his wife.  The line agreed on was drawn on a plat prepared by the surveyor and filed with and as a part of the agreement.  This line is located 40 feet east of a line found by the Court to be the western boundary of Poplar Ridge.  No order to settle the case was[***11] ever filed, and it was, and is now, carried as an open case.  It was not entered on the Judgment docket or on the Judgment index.

   In 1950 Daniel Paul Corey and Joseph Albert Corey filed in the Circuit Court for Anne Arundel County a bill in equity for declaratory relief against the appellees, who filed a demurrer.  After a hearing thereon, the demurrer was sustained on the ground that the suit was essentially one to try title and the appellants had an adequate remedy at law.  On April 28, 1951, the appellants brought in the same court an action in ejectment against the appellees, who filed a general issue [*396] [SEE ILLUSTRATION IN ORIGINAL] [*397] plea and a plea setting forth a defense, on equitable grounds of laches.  The case was tried before the Court without a jury (Judge Clark, who heard the equity case the year before, sitting) and the Court decided that the appellants had title to two parcels of land, which are only a relatively small part of the property described in the amended declaration. Judgment for these two parcels of land and for one cent damages, and costs, was entered for the appellants, and this appeal is from that judgment.  On September 29, 1952, [***12] after the record had been transmitted to this Court, the appellants filed here a motion to strike out the judgment or for other relief.

   From the tedious recital of the chain of title which has gone before, it can now be seen that the first parcel embraced in the land claimed by the appellants, is the northernmost 350 feet of the 30 foot wide strip of land referred to in the deed of 1935 from Bruner R. Anderson and others to Daniel Patrick Corey and wife, and later conveyed in fee by the deed of 1937 from Bertha A. Linthicum to the Coreys.  The southernmost 500 feet of this 30 foot strip runs along the 13 acre tract acquired by Daniel Patrick Corey and later conveyed by him to the appellants, which is not directly involved here.

   The second parcel is a strip of land 40 feet wide and approximately 300 feet long, lying immediately east of the first parcel, and as has been said, the answer to the ownership of this parcel is the determination of the exact boundary between Poplar Plains and Poplar Ridge.

   The third parcel is the residue of the property, described in the amended declaration, 54.22 feet wide, at the southern end and adjoining the first parcel to the west.  The property of[***13] the appellees, John J. Carback and Rosalie Carback, and the first and third parcels of the land claimed by the appellants, came from a common grantor, Bernard Oberman.  It is admitted that the appellants own those parts of the first and [*398] third parcels which were not included in the boundaries of the property conveyed to Mr. and Mrs. Carback by Wickart.  The appellees, Richard T. Carback and Hazel I. Carback, say that the second parcel, claimed by the appellants, is actually the easternmost 40 feet of Lot 108 of Poplar Ridge, and they deny that the appellants have title to any of it.  The answer to the dispute resolves itself in the determination of the location of two boundary lines, viz., the western boundary of Richard T. Carback and wife, and the eastern boundary of the property of John J. Carback and his wife.  The Messrs. Carback and their respective wives concede that whatever property lies between these two boundary lines is the property of the appellants.

   It will be appropriate to discuss parcels one and three before disposing of parcel number two, and the appellants' motion to strike out the judgment.

   The description in the deeds from Oberman to Wickart and the[***14] description in the deeds from Wickart to John J. and Rosalie Carback, are identical.  These descriptions as to the first tract include a call to "a stake and stone now planted by the side of a bounded double chestnut tree standing on the west side of the road heretofore referred to as leading to the wharf on [**634]Bear Creek; thence running with and bounding on said road a northerly course to the place of beginning." As to the second tract, the description includes this: "thence leaving the said outline and running with and bounding on or about the center of the road that leads to the wharf on Back Creek." The Court below, in discussing parcels one and three, said this:

   "Parcels Nos. 3 and 1 must, I think, be discussed together.  Just how much land the plaintiffs hold in virtue of (1) the deed from Bertha Linthicum and others to Daniel P. Corey and Mabel F. Corey of November 1, 1937, and (2) the confirmatory deed from the said Bertha Linthicum and others to the plaintiffs dated June 19, 1950, depends entirely on the true [*399] construction of the two deeds from Oberman to Wickart heretofore mentioned.  In other words, the defendants, John J. Carback and Rosalie, his[***15] wife, now own the Wickart's lots, and, as the conveyance thereof were made long before the conveyances under which the plaintiffs claim, the most the plaintiffs can own is what was left after the Wickart lots are carved out.  In construing these deeds, we must bear in mind that the road leading to the wharf on Back Creek, therein mentioned, is not the straight strip, thirty feet wide, which the elder Mr. Corey acquired by deed dated November 1, 1937.  The road mentioned in said deed, as well as in the deed of November 14, 1935, was nothing but a contemplated road, running along the easternmost boundary of Poplar Plains, and it was never in fact opened.  That is not only shown by the testimony, but by certain corrections made by interlineation in the description of the thirteen acres tract as contained in the deed from the elder Mr. Corey and his wife to the plaintiffs dated January 27, 1950.  The word 'proposed', was twice interlined when referring to this road, and the words 'intended to be' were interlined in another place.  The strip of land, thirty feet wide, to which the plaintiffs claim title in virtue of said deed dated November 1, 1937, is very well shown on the plat made by[***16] Mr. McCrone for the defendants, and offered in evidence as 'Defendants' Exhibit No. 2', while the road in use when the Wickart grants were made, and which is still in use is not only shown on that plat, but on the plat made by Mr. McCrone dated November, 1951, and marked 'Court's Exhibit No. 1.'"
The Court went on to find as a fact that the road, eight feet wide, existing on the property, is the same road referred to in the Wickart deeds. He continued, "I [*400] hold that, by the true construction and meaning of these deeds, Captain Wickart took to the center of said road leading to the wharf on Back Creek.  This is made necessary by the provisions of Code, Article 21, Section 114, and the decisions in Campeggi v. Wakefield, 157 Md. 229; and Maryland Telephone Company v. Ruth, 105 Md. 644. . . . This means that I must give the plaintiffs all of that part of Poplar Plains which lies on the east side of the center line of said road, and the defendants all that part thereof which lies on the west side thereof.  . . . I gather from this that the defendants feel that because they did not actually eject the plaintiffs from all the land described in the amended declaration, [***17] the plaintiffs cannot recover.  I cannot follow them in that.  . . . In any event, they never conceded the plaintiffs' title to all the land I am giving them.  They limited their concession to so much of the thirty foot strip as was not included in the Wickart deeds. The plaintiffs are entitled to a little more than that.  In other words, the confirmatory deed of June 19, 1950, did convey a residue of land lying between said thirty foot strip and said Wickart lots."

   Judgment was entered in accordance with this finding of the Court; the various parcels of land are all described in the opinion of the Court and that awarded the appellants in the judgment.  The Reporter will reproduce with this opinion the plat which was found opposite page 14 of the appellants' brief.  On this plat the parcels awarded the appellants are indicated with diagonal lines.

   [**635] [**636] We think that his action was supported by the evidence.  In any event, the plaintiffs failed to prove title to more than he gave them and they must win or lose on the strength of their own title.  Joseph v. Bonaparte, 118 Md. 591, 85 A. 962; and Giles v. DiRobbio, 186 Md. 258, 46 A. 2d 611.

   Daniel Paul[***18] Corey and Joseph Albert Corey claim title to the westernmost forty feet of Lot 108 of Poplar Ridge by virtue of the agreement of December 4, 1940, [*401] entered into between Joshua F. Johnson and his co-owners, on the one hand, and Daniel Patrick Corey and his wife, on the other, and filed in the trespass case of 1939.  They produced no other evidence.  Their title to parcel number two must depend on the effect of that agreement.  Since we find they are not helped by that agreement, we concur with the determination of the Trial Court that the common boundary between Poplar Plains and Poplar Ridge was the so-called "Hall" line, some forty feet west of the agreement line. Both lines are shown on the plat to which we have referred.

   Richard T. and Hazel I. Carback claimed, and produced evidence, that they bought and paid for the land involved without any notice of said agreement, and say, therefore, that they are bona fide purchasers for value and took title free and clear of any effect of the agreement.  It was shown that none of the appellees learned of the existence of the agreement until June 1949, some eight months after Richard and Hazel Carback obtained the deed to Lot[***19] 108. This was also true of Arthur A. Anderson, Jr., the lawyer who made the title examination for Mr. and Mrs. Carback.  He said that he had examined the public records and that they did not contain any notice of the agreement which settled the disputed boundary line. He testified to thirteen years' experience in examining titles, that he made his examination of title for the Carbacks in 1948 and did not find any reference to the No. 22 Trials, Oct. Term, 1940, nor to the agreement.  He said further, that when the Carbacks told him that Mr. Corey asserted there was such an agreement, he twice returned and still found no reference to the agreement.  He said he found no reference to it on the judgment docket or anywhere else and that there was no way he could have found No. 22 Trials, Oct. Term, 1940, except by running the law dockets all the way back, which is not the practice of the examiners.

   The testimony of the Chief Deputy Clerk of the Court was that at the time of the examination cases were [*402] indexed only in the name of the defendant, so that a search under the name of "Johnson" would not have revealed the case. No. 22 Trials, Oct. Term, 1940, has never been finally[***20] disposed of. On the contrary, the case is carried as an open case on the Trial Docket.

   There are several ways in which a case may be concluded other than as a result of a trial.  "Frequently", says Mr. Poe (Practice, Tiffany Edition, Sec. 236) "the parties before the trial is reached come to a satisfactory adjustment. There are several entries which they may order to be made in this event, viz: They may direct the Clerk to enter the case 'off without costs'.  . . . Or the entry may be 'agreed', or 'agreed and settled' . . ." The clerk, in receiving an order to enter a case "agreed and settled", acts only as a ministerial officer of the Court.  He has no discretion or initiative in the matter, and no right to make a judicial determination whether or not to make such an entry.  An entry "agreed and settled" has the effect of a judgment and may be stricken out by the Court only after a direct proceeding for that purpose.  See Tabler v. Castle, 22 Md. 94; and Clark v. Southern Can Company, 116 Md. 85, 81 A. 271, 36 L. R. A., N. S., 980.  The agreement of December 4, 1940 did not direct the clerk to do anything.  The clerk is required by Article 17, Sec. 1 of the 1951 Code to [***21]file "all papers delivered to him to be filed" but he is not concerned with the merit of the papers nor with their effect and interpretation. If the parties wish the case to be entered "agreed and settled", they or the Court must give the clerk an order to that effect.  The Court below decided (correctly, we think) that the Clerk of the Court, by the mere filing with him of the agreement, was not [**637] required to transcribe the docket entries in the case in his judgment docket, and index the judgment as required by Sec. 33 of Article 17 of the 1951 Code.  He did not do so and the appellees were not put on constructive notice under those circumstances.

   [*403] There is another reason why the trespass case would not be binding on the appellees, Richard and Hazel Carback.  The Court below held that the proceeding was not of a kind to which the doctrine of lis pendens was applicable, since the trespass case was for money damages and was not a proceeding directly relating to the property in question.  He held that lis pendens does not apply to an action of trespass quare clausum fregit.  We need not and do not decide whether, in a case of trespass quare clausum [***22] fregit, where there has been a warrant of resurvey issued, lis pendens applies. There is some indication in the statutes and cases that it might in some circumstances.  Art. 75, Sec. 85, 1951 Code, refers to the issuance and utilization of warrants for resurvey in ejectment, and says that "No warrant of resurvey shall issue in any action of ejectment unless the Court shall be satisfied that there is a dispute about the location of the lands claimed in said action; nor shall any issue in other actions unless there is a dispute about the location of the lands for the injury of which damages are claimed . . ." See also Sec. 86 and 87 of Art. 75; Giles v. DiRobbio, supra; West v. Pusey, 113 Md. 569, 77 A. 973; and B. & O. R. R. Co. v. Silbereisen, 121 Md. 407, 88 A. 252, 89 A. 102. In Andrews v. Pitts, 126 Md. 328, 95 A. 203, there is a full discussion of the history of the use of the warrant of Resurvey in Ejectment and in actions of trespass quare clausum fregit, which tends to show that they are equivalent in trying title to disputed lands.  We may assume, without deciding, that the trespass case of 1939 was one which would invoke the doctrine of lis pendens[***23] , and yet deny it that effect, because it is thoroughly established that in order to constitute lis pendens, there must be a continuance of litis contestatio.  There can be no long and unexplained delay in the prosecution of a suit.  See Taylor v. Carroll, 89 Md. 32 at 36, 42 A. 920, 921, 44 L. R. A. 479, which adopts the language of Pomeroy, in his work on Equity Jurisprudence, as follows: "In order, however, that a purchaser pendente lite may be [*404] thus affected, the suit must be prosecuted in good faith with all reasonable diligence and without unnecessary delay.  A neglect to comply with this requisite would relieve a purchaser from the effect of the lis pendens , as notice." See also Price v. McDonald, 1 Md. 403, at page 412; Rupp v. Rogers , 118 Md. 534, 85 A. 774; and Frank, "Title to Real and Leasehold Estates", p. 289.  There the author says, "In order, however, that a purchaser pendente lite may take subject to the outcome of the litigation, the suit must be prosecuted in good faith, with all reasonable diligence and without unnecessary delay.  A neglect to comply with this requisite would relieve a purchaser from the effect [***24]of the lis pendens as notice.  If the claimant failed in diligent prosecution of the action, the consequences are the same as if no action had been begun." We think failure to close the case for years would relieve the Carbacks from the effect of lis pendens if it otherwise were applicable.

   The appellants' motion to strike out the judgment, in effect, asks this Court to assume original jurisdiction.  The basis for the relief sought is that in 1938 Joshua F. Johnson and his co-owners brought suit against Daniel P. Corey, in equity, for continuing trespasses by Corey on the Johnson land, and that the index to the equity docket for the Circuit Court in Anne Arundel County for the period from July 1, 1937 to 1949 shows the case of Joshua F. Johnson, et al v. Daniel P. Corey, No. 7638, Equity Docket 10, Folio 219, and that the case was indexed under the name of Joshua F. Johnson and each of the other Johnsons, as well as under the name of Daniel P. Corey.  It is argued that a title examiner, running the equity index, would have found this case and that in the papers in the case, there is a reference to the trespass suit of Joshua F. Johnson against Daniel P. Corey, and so a[***25] careful title searcher would have found the trespass [**638] case and inevitably would have found the agreement of December 4, 1940.  It is difficult to see, on close examination, how the appellants improve their position, by saying that if they [*405] had known of the equity case at the time of the trial or had it been known to Mr. Anderson, that the result of the trial would have been different.  It is not argued, and the Court did not find, that the Carbacks had actual notice of the agreement.  The Court below decided, and we have agreed, that No. 22 Trials, Oct. Term 1940, was neither a completed or properly indexed case which the statute made constructive notice, nor a case to which the doctrine of lis pendens was applicable, and therefore, it could not offer constructive notice on either theory.  Thus, it is of no consequence that it might have been possible to discover the agreement, since, in fact, it was not discovered.

   Regardless of the consequences or effect of the 1939 equity case, this Court is without jurisdiction to grant the motion to strike out judgment or give other relief, which does not arise from or depend on the record in this Court.  In Smith [***26]  v. Hooper, 95 Md. 16, 51 A. 844, 54 A. 95, there was a motion to remand a case to the Trial Court for further proceedings, on the ground that the true facts were wholly and radically different from those contained in the record and that if the appellant were permitted to submit them, the result would be the reverse.  The appellant argued that the Court had power to grant the relief under the provisions of Article 5, Sec. 36 of the Code.  The Court decided it had no such power, either under the statute or otherwise, saying, "It must be borne in mind that this Court has no original jurisdiction.  Its functions are purely appellate.  If the statutes do not give jurisdiction to hear a case except upon the record as transmitted, then it is obvious that this Court has no power to inspect documents or to consider evidence with a view to determine whether facts stated in the record to be facts, are facts or simply fiction." See also Stanley v. Safe Deposit & Trust Co., 87 Md. 450 at page 459, 40 A. 53, 56. There this Court said, in referring to a petition filed by the appellant after the argument praying that the Court suspend the determination of the case until proof can be introduced[***27] [*406] either in the Court of Appeals or in the Court below, in support of the appellant's petition: "This is a very unusual request and one that we manifestly have no authority to grant. In effect the petition asks leave to make out a new and totally different case . . . We must deal with cases as they are brought before us by the record transmitted from the Court below, and we have no power, whilst reviewing a particular order from which an appeal has been taken, to receive evidence or to remand the record for the Court below to hear testimony on totally different questions that in no way reflect on the only issue brought to this Court for review." See also State v. Rutherford, 145 Md. 363.

   In United Railways Co. v. Corbin, 109 Md. 52, 71 A. 131, 132, the Court suggested that a way out of the dilemma, where the appellant wished to have the lower court in that case strike out judgment by saying that it could not be done while the appeal was pending, but that "If the appellant desired such motion to be acted on by the lower court, it had the undoubted right to dismiss its appeal and thereby enable that court to act on the motion".  The appellants here do not seem to[***28] challenge the correctness of the ruling of the Court below on the evidence before it, as much as they rely on evidence they assert to have been discovered and to be available on a re-hearing.  We must decide the case as it comes to us.  As the Court said in Giles v. DiRobbio, supra, in discussing a somewhat similar endeavor, on the ground of newly discovered evidence in a trespass quare clasum fregit case, "It is the policy of the law that litigation be finally terminated.  To permit appellant to dismiss the appeal, restore the case on the trial docket, and then dismiss the case, without prejudice, would be a violation of that policy.  The only purpose of such proceeding would be to enable appellant to reinstitute the case, to the end that it be tried over again, in the hope of better results to the appellant." We concur in that reasoning.

   Judgment affirmed, with costs. 

BANNER et al. v. HOME SALES COMPANY D et al. 
No. 70, October Term, 1952
 
Court of Appeals of Maryland
 
201 Md. 425; 1953 Md. LEXIS 210

 February  5, 1953, Decided

   PRIOR HISTORY: [**1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Appeal dismissed, with costs.

CORE TERMS:  zoning, decree, moot, general welfare, chancellor, declared unconstitutional, disputed property, questions of law, acres of land, detrimental, depreciate, enjoined, confine, refrain, rezoned, invalid, ceased, notice, zoned, void, map

COUNSEL: George Sachse, with whom was Emanuel Klawans on the brief, for the appellants.

   Hyman Ginsberg, with whom were Symone S. Spector, James W. Blackhurst and Ginsberg & Ginsberg on the brief, for the appellees.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins, Henderson and Hammond, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: [**3]

   COLLINS

OPINION: [*426] This is an appeal from a decree dismissing appellants' bill of complaint.

   On March 18, 1952, appellants filed a bill of complaint against the appellees alleging, for the purposes of this case, the folowing.  Five acres of land owned by the appellees had, before November 27, 1947, been tentatively zoned on the zoning map by the Board of County Commissioners of Anne Arundel County (the Board) as "Cottage Residential".  Mr. Charles H. Doing, one of the appellees, appeared at a meeting of the Board on November 27, 1947, and requested that the proposed zoning of his five acres of land be changed from "Cottage Residential", so there could be constructed thereon certain semi-detached and group houses. He further requested that no zoning regulations be permitted to interfere with his project, due to the vast sum of money he had already invested therein.  Due to this request the [*427] Zoning Commission was then instructed by the Board to consider the requested changes and to re-present such zoning map at the next meeting of the Board.  A meeting was later held by the Board on December 2, 1947, when the zoning of appellees' property was changed to "Group Housing", [**4]without notice or advertisement to the public.  On December 19, 1951, appellees applied for building permits to build 73 dwellings on their land. Nothing was shown to indicate that these applications were for group houses and permits were issued.  On December 28, 1951, Home Sales Company, one of the appellees, was advised by the Zoning Commissioner that no construction was to be started until the plans and specifications had been resubmitted and corrected. Even though the plans have not been approved by either the Board or the Zoning Commissioner, and even though the land has been improperly zoned, the appellees have persisted and are now building foundations for 73 group houses.  If the 73 group houses are built they will depreciate the value of appellants' property and be detrimental to the health, safety and general welfare of the community. On March 6, 1952, prior to the beginning of the construction of said houses by the appellees, the appellants and others filed with the Zoning Commissioner a petition to change the zoning of the aforesaid property from "Group Housing" to "Cottage Residential" and said petition is to be acted upon by the proper officials according to law.  The[**5] change in zoning from proposed "Cottage Residential" to "Group Housing" was arbitrary, unreasonable, discriminatory, and constitutes spot zoning without any substantial relation to the public health, safety or general welfare, and without notice to the public generally or to the appellants.  The bill of complaint further alleged that the appellees "have proceeded to construct said group houses, and unless this Honorable Court intervenes, Your Complainants will be deprived of the protection of the zoning and building laws and requirements to which protection they are legally entitled under the law, and further, Your Complainants [*428] have no adequate remedy at law." The bill prayed that the zoning of December 2, 1947, be declared unconstitutional, invalid, and void; that the appellees be enjoined from construction on said property until the said Zoning Commissioner and the Board have heard and passed on the application for rezoning of the said land, and until valid building permits have been obtained; and that the appellees be enjoined from using or permitting said property to be used for group housing purposes.

   After combined demurrer and answers were filed, stipulations were[**6] submitted and a hearing held in open court before the chancellor. An opinion was filed by the chancellor in which he held that the zoning of the defendants', appellees', property was valid and "the question of whether or not the defendants have a 'vested rights' because of the work they have done, is not properly before me." We are informed that no further work has been done on the disputed property since the bill of complaint herein was filed.  From a decree dismissing the bill of complaint, appellants appear here.

   At the argument of this case in this Court it was admitted by all the parties that since the decree here appealed from was signed by the chancellor, the property here in dispute has been rezoned "Cottage Residential" by the zoning authorities.  The case before us has therefore become moot.  The zoning of the property here in question on December 2, 1947, as "Group Housing" has now been changed to "Cottage Residential".  The zoning contested in the case before this Court has been superseded by the zoning authorities.  As was said by Chief Judge Bond in the case of Public Service Commission v. Chesapeake & Potomac Telephone Company, 147 Md. 279, 281, 128 A. 39,[**7] the general rule is "that the court should confine itself to the particular relief sought in the case before it, and refrain from deciding abstract, moot questions of law, which may remain after that relief has ceased to be possible.  Upon consideration of this and of all the circumstances of the case, we have concluded that the proper course for the Court is to [*429] dismiss the appeal." See also Montgomery County v. Maryland-Washington Metropolitan Dist. et al. 200 Md. 525, 92 A. 2d 350; Velasco v. Protestant Episcopal Church, 200 Md. 634, 641, 92 A. 2d 373, 376. The appeal will be dismissed.

   Appeal dismissed, with costs. 

REILING v. COMPTROLLER 
No. 84, October Term, 1952
 
Court of Appeals of Maryland
 
201 Md. 384; 94 A.2d 261; 1953 Md. LEXIS 206

 February  4, 1953, Decided

   SUBSEQUENT HISTORY: [***1]

   Application for Leave to Present Newly Discovered Evidence and Further Relief and Motion to Amplify Application, Filed March 2, 1953 and March 10, 1953, Denied March 19, 1953.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed with costs.

CORE TERMS:  income tax, statutory remedy, domiciled, resident, refund, direct appeal, estimated tax, taxation, declaratory decree, taxable year, sub-title, assessment of income tax, federal government, failure to file, right to appeal, liable to pay, null and void, type of case, declaration, injunction, dwelling, paying, thence, decree

COUNSEL: Herman T. Reiling, in proper person.

   Francis D. Munraghen, Assistant Attorney General, with whom was J. Edgar Harvey, Acting Attorney General, on the brief, for appellee.

JUDGES: Sobeloff, C. J., and Delaplaine, Collins and Henderson, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*385] [**262] This appeal is from a decree of the Circuit Court for Anne Arundel County, in equity, sustaining a demurrer to and dismissing a bill of complaint.  The bill alleged that the appellant was an attorney admitted to practice in the State of Illinois but employed by the Bureau of Internal Revenue in Washington.  During the years 1944 and 1945, he was so employed but maintained his citizenship and domicile in Illinois, although he resided and owned a dwelling in Chevy Chase, Maryland.  In 1949 the Comptroller of the State of Maryland sent him a notice of estimated assessment of Maryland income tax, including interest and penalty, for the calendar years 1944 and 1945.  He requested a statement as to its [*386] computation, and an abatement on the ground that it was unconstitutional.  He[***4] was furnished with a statement showing the tax was calculated on account of the salary he received from the federal government. He complains that the tax was not correctly computed, but nevertheless he did not further challenge the assessment, although told that it would become final if he did not do so within fifteen days, (section 300, Article 81, Code of 1951) nor did he exercise his right to appeal to the State Tax Commission (section 305, Article 81, Code of 1951), and thence to the courts (sections 305 and 255).  None of these appeals would have entitled him to a stay, but had he followed the procedure outlined in the sections cited and obtained a final adjudication in his favor, he would have been entitled to a refund with interest under section 257, Article 81, Code of 1951.  Instead of pursuing the statutory remedy, he let the time for appeal expire and subsequently brought this bill for an injunction and declaration that the assessment is null and void. The appellee, while contending that the tax is valid in any event, challenges the appellant's standing [**263] to invoke the aid of a court of equity after having failed to pursue his statutory remedy. 

   The appellant[***5] attempts to meet this contention by arguing that an appeal to the Tax Commission and thence to the courts is allowed only to a dissatisfied "taxpayer", defined in section 275(c), Article 81 of the 1951 Code, as "any person required by this sub-title to pay a tax or file a report".  He contends that he is not a "taxpayer" within this definition.  The definition quoted is, however, only "for the purposes of this sub-title and unless otherwise required by the context".  In the context of section 305, the right to appeal is not limited to persons whose liability to some tax is admitted.  There is a broader definition of "taxpayer", in section 2 of Article 81, to include "any person * * * paying or liable to pay any tax, or against whom any liability for taxes is claimed or asserted, or could be claimed or asserted * * *". Moreover, under section 290, it is required that "every individual [*387] resident of this State" file returns under the conditions stated.  "Resident" is defined in section 275(i) to mean "an individual domiciled in this State on the last day of the taxable year, and every other individual who, for more than six months of the taxable year, maintained a place of[***6] abode within this State, whether domiciled in this State or not * * *".  The appellant clearly falls within the latter category.  If he is exempt from the tax, as contended, it is not because the statute is not in terms applicable to him, but because the statute cannot be constitutionally applied as the legislature intended.  In Wood, et al. v. Tawes, 181 Md. 155, 28 A. 2d 850, certiorari denied 318 U.S. 788, 63 S. Ct. 982, 87 L. Ed. 1154, this court not only entertained a direct appeal by residents, claiming constitutional immunity from taxation some of whom were in almost the identical situation as the complainant, but sustained their liability in the fact of the same arguments here presented.

   Nor do we find any merit in the appellant's contention that the remedy by way of appeal would be inadequate because a refund under section 306 would be barred by limitations.  As we have pointed out, refund with interest would be allowable on appeal under section 257.  The prohibition on refund in section 306 was designed to give effect to the limitations where that defense might have been raised at an earlier stage.  Cf. American Bank Stationery Co. v. State, 196 Md. 22, 75 A. [***7] 2d 86. In Reiling v. Lacy, D. C. 93 F. S. 462, 467 (appeal dismissed 341 U.S. 901, 71 S. Ct. 614, 95 L. Ed. 1341), it was squarely held by a three-judge federal court that the remedy afforded by the Maryland statute in this case was a plain, speedy and efficient remedy.

   Perhaps the strongest argument that could be made in favor of a consideration of the case on its merits, is that the point raised is not the amount or calculation of the assessment but the constitutional power of the State to impose an income tax on a resident who is domiciled in another state and earns the income which is the measure of the tax in the District of Columbia [*388]through services there performed for the federal government. We have pointed out in a number of recent cases that where a constitutional issue is raised, and there is no danger of by-passing administrative action, the question may properly be decided in an equity proceeding, or one for a declaratory decree, before the time has arrived for invoking the statutory remedy. Schneider v. Pullen, 198 Md. 64, 68-69, 81 A. 2d 226, 228; Kracke v. Weinberg, 197 Md. 339, 79 A. 2d 387; Francis v. MacGill, 196 Md. 77, 75 A. 2d 91;[***8] Cambridge v. Eastern Shore Public Service Co., 192 Md. 333, 337, 64 A. 2d 151; Kahl v. Con. Gas & Elec. Lt. & Pwr. Co., 191 Md. 249, 258, 60 A. 2d 754. It may be noted, however, that none of these were tax cases.

   The case of Tawes v. Williams, 179 Md. 224, 17 A. 2d 137, 132 A. L. R. 1105, is closely in point.  It was there held that an assessment of income tax, including within the taxable basis income received from a foreign fiduciary, could only be attacked, even on constitutional grounds, on direct appeal, and not by a proceeding for a declaratory decree. On the last point the authority of the decision is somewhat shaken by subsequent amendments of the Declaratory [**264]Judgement Act. * See Cambridge v. Eastern Shore Public Service Co. and Schneider v. Pullen, supra. However, these amendments, and our decisions, recognize that where a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed.  The gravamen of the decision in the Williams case was that the legislature intended to make the statutory remedy exclusive.  In tax assessment cases there are special reasons why there should be finality upon[***9] failure to exercise the statutory right of appeal, and collateral attack should be prohibited.  Cf. Wasena Housing Corp. v. Levay, 188 Md. 383, 52 A. 2d 903, and American Bank Stationery Co. v. State, supra. Questions involving jurisdiction to tax income from particular sources have repeatedly been [*389] decided on direct appeal. Wood v. Tawes, supra; Gordy v. Dennis, 176 Md. 106, 5 A. 2d 69. This court has never overruled the Williams case on this point, and we see no occasion to do so now, when it has been tacitly accepted by the legislature as a correct interpretation of its intention.

* Code (1951), Art. 31A.

   Since we hold that the remedy by way of appeal from the assessment was exclusive, it follows that the bill was properly dismissed.

   Decree affirmed with costs. 

PHILIP E. GRAY, INC. v. GRAY 
No. 50, October Term, 1952
 
Court of Appeals of Maryland
 
201 Md. 260; 93 A.2d 533; 1953 Md. LEXIS 193

 January  8, 1953, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  salary, dollars, services rendered, prayer, demurrer, hotel, bedroom, lived, non-payment, furniture, apartment, accounted, occupied, married, vouchers, clothes, presumption of payment, tending to prove, lapse of time, testator, lifetime, living expenses, jury question, former wife, income tax, substantiate, legitimately, expenditures, accountant, naturally

COUNSEL: Wm. Meverell Loker, Jr., with whom were Wm. Meverell Loker, Loker and Guyther, Rouse and Morton and James C. Morton, Jr. on the brief, for appellant.

   Wm. J. McWilliams, with whom were McWilliams, Evans and Melvin, Joseph D. Weiner and D. Sylvan Friedman, on the brief, for appellee.

JUDGES: Delaplaine, Collins, Henderson and Hammond, JJ.  Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*261] [**533] This is an appeal from a judgment in the amount of $7,797.12 rendered against the appellant, Philip E. Gray, [***3] Incorporated, and in favor of the appellee, Margaret W. Gray.  The suit was in assumpsit for services rendered by the appellee, plaintiff, to the appellant, defendant, in that amount.

   The case comes to this Court on the denial of the appellant's motion for a directed verdict and on the refusal of appellant's motion for a judgment N. O. V.  Of course, in deciding whether this demurrer prayer and motion should have been granted, we will resolve all conflicts in the evidence in favor of the appellant and assume the truth of all evidence and all inferences which may naturally and legitimately be deduced therefrom which tend to support appellant's claim.  The evidence will therefore be recited in a light most favorable to the appellant.  Stannard v. McCool, 198 Md. 609, 610, 84 A. 2d 862, 863, and cases there cited.

   Margaret W. Gray, the appellee, testified that she and Philip E. Gray were married at Roanoke, Virginia, on August 3, 1935.  They lived in Roanoke for three years and then moved to Charlottesville and lived there until [*262] they were divorced in 1947.  Mr. Gray was in the coin machine business in Virginia and about 1942 transferred his operations to St. Mary's County, [***4]Maryland.  The Grays have two children, a girl fifteen and a boy nine years of age at the time of the trial.  Prior to the divorce an agreement was reached by the parties that Mr. Gray was to pay her fifty dollars per month for herself and two hundred dollars for the children.  The children went to live with Mrs. Gray's parents in Roanoke and Mrs. Gray went in training in Charlottesville [**534] to become a nurse.  When the boy became ill Mrs. Gray went back to Roanoke to take care of the children.  Mr. Gray kept in touch with his former wife and his children.  Some time before June, 1948, Mr. Gray suggested that they try to "make a go of it again" and that they remarry.  On the way back to Maryland, Mrs. Gray told him at Union Station in Washington that she and the children would not go back unless she and he were married. Mr. Gray, however, persuaded her to go back to St. Mary's County with the promise of marriage some time in the future.  In July, 1948, they all returned to St. Mary's County to a house in Patuxent Park, where Mr. Gray had his slot machines stored in the basement.  In this house one room was used as an office, one room was occupied by two boys who worked for[***5] Mr. Gray, and the family occupied a living room, kitchen, and three upstairs bedrooms. Mr. and Mrs. Gray occupied one bedroom as man and wife.  In September, 1948, Mr. Gray formed the corporation, Philip E. Gray, Inc.  The corporation employed Mrs. Gray in the fall of 1948 "to take care of the books, which was just a ledger, that he kept on the slot machines take, not pertaining to any of his other bookkeeping, and keep the office and take telephone calls and so forth and keep the place clean." She was to be paid a salary of one hundred dollars a week.  They later moved from this office to another house three doors away, where they established a home.  Mrs. Gray said she then took care of this home and "went back and forth and kept the office going like I had always [*263] done, and it wasn't until September of the following year, 1949, that we moved into the hotel; I have been running the hotel since the middle of September, and I found that running the hotel and handling the home and looking after the children, I couldn't do both jobs, so we took six rooms there at the hotel, and made it into a five room apartment." She had entire management of the hotel which consisted of[***6] about one hundred bedrooms, without a dining room.  Six maids and a maintenance man were employed.  Mrs. Gray said: "We had it set up, a bell system, where, in case I wasn't in the office, that they could ring back into the apartment, if I was back in the apartment, taking care of that, * * *".  She took in the money and paid most of the bills.  There was no bank account.  All the transactions were in cash.  She said she never received any of her salary from the corporation.  She said she asked her husband for her salary, but he never paid it.  She continued to hope he would marry her.  Finally in May, 1950, she discovered that her husband had been telling people they were not married and he "wouldn't give me anything to go on except he handed out to me as I needed it," and being convinced that he would not marry her, she quit her employment.  She entered this suit on November 30, 1950.

   She said from time to time during her employment she received from her former husband money in cash as she needed it for food, clothes for the children, furniture for the house, clothing for herself and for him, groceries, doctor's bills for the children, and large doctor's bills for herself.  She[***7] said this could have amounted to as much as $13,726.00.  She said she was required to account for the money he gave her and for the money she received at the hotel and from other employees, Messrs. Hayden and Pennington.  She said she accounted to Mr. Gray for all of the money he had given her in a composition book.  She said the corporation owed her for salary, seventeen hundred dollars for the year 1948, fifty-three hundred dollars for the year 1949, and [*264] two thousand dollars for the year 1950, less the necessary deductions for income taxes of $1,202.88, leaving a balance of $7,797.12 which had not been paid her.  After she left the employ of the corporation she moved out of her former husband's bedroom and into the bedroom with her son.  At the time of trial she was boarding with a Mr. and Mrs. Achenback and working in the A. & P. Store. She admitted that she signed income tax returns for 1948, 1949, and 1950.  She said these returns were prepared by an accountant and she didn't read them after they were prepared but signed them because Mr. Gray asked her to do so.  She further testified that during this period [**535] Mr. Gray did not pay her the two hundred[***8] dollars for the children and the fifty dollars alimony per month, but merely gave her money for expenses of the family and home.  She said at the time she was not living with him, he made out to her each month a check for $50.00 and marked on it "alimony" and a check for $200.00 to her father for the children.

   Mr. William W. Pennington, an employee of the appellant corporation, in his deposition, offered by the appellant, testified that when Mr. Gray was out of town he would advance Mrs. Gray money from his "change fund" and put a ticket in the change box showing the payments to Mrs. Gray.  He said Mr. Gray did not object to this but asked him "to discourage her as much as I could".  He said Mrs. Gray, for Philip E. Gray, Incorporated, during eight months of 1949 while he was employed there, did some book work, cleaned up the office, and operated an adding machine and type-writer.  Mr. Gray told him that Mrs. Gray was on the payroll and he heard him discuss it with his accountant who was making up the income tax. He said he thought he heard Mr. Gray say that Mrs. Gray's salary was $100.00 per week.

   Philip E. Gray testified that he was the president of the corporation and owned[***9] all its stock except for two shares.  He said for the sake of the children, he and Mrs. Gray resumed living together in June, 1948.  He [*265]admitted that he and Mrs. Gray made an arrangement whereby she would receive one hundred dollars a week from the corporation.  While she lived with him he said "she was to receive the additional money necessary" and that she was given additional money.  He said that Philip E. Gray Incorporated paid to Mrs. Gray one hundred dollars per week while she was on the payroll.  He further said: "I gave her one hundred dollars per week from the corporation, plus additional money as it was demanded by her." He said during the period she worked for the corporation "in round figures I gave her thirteen thousand five hundred dollars".  He further said: "I advanced her corporation money to the extent of one hundred per week only; any other money she received from me, came from me.  I asked only that one hundred dollars per week be set off against what she got; she got far in excess of one hundred dollars a week, but the corporation only extended her one hundred dollars a week." Apparently appellant had no record of the payment of Mrs. Gray's salary other[***10] than an envelope upon which was written a memorandum each month of its expenditures. Inside the envelope were receipts for these expenditures, other than the employees' salaries. There were no receipts or vouchers from any of the employees showing that their salaries were paid.  There were no checks showing the payment of appellee's salary, as all payments were made by the corporation and Mr. Gray in cash.  Mr. Gray testified that the social security records and unemployment records would show the corporation reported the payment of Mrs. Gray's salary by the corporation.  There is no evidence here that Mrs. Gray made these reports.

   From this testimony it is not disputed that Mrs. Gray was employed by Mr. Gray for the corporation at one hundred dollars a week to do certain work, which she performed, and that she earned her salary of one hundred dollars per week. Mr. Gray admitted that while she lived with him he agreed to pay her "the additional money necessary".  She admits that Mr. Gray [*266] might have paid her as much as $13,726.00 but that this was the "money necessary" for the living expenses, clothes, medical expenses, furniture, and other necessities for the family, [***11] and did not include her salary from the corporation.  Mr. Gray says that this amount paid by him included her salary from the corporation. He has no receipts, vouchers, or checks to substantiate this contention.  It was certainly a jury question as to whether Mrs. Gray had been paid her salary in full and if not, how much was due her.  There are no objections to the instructions given the jury by the trial judge.  Under the testimony here the court could not have ruled as a matter of law that Mrs. Gray's salary had been paid in full as appellant here contends.

   The appellant relies on the case of Provident Trust Company v. Massey, 146 Md. 34, 125 A. 821, in which the appellee sued [**536] for service rendered. It was there said that as a general issue plea was filed and non-payment was a necessary allegation, it was incumbent upon the plaintiff to offer evidence tending to prove non-payment. Gill v. Donovan, 96 Md. 518, 54 A. 117. In that case a demurrer prayer was filed.  This Court there reaffirmed the well known principle that the effect of filing a demurrer prayer is to admit the truth of the plaintiff's evidence and every inference properly deducible therefrom. [***12]Here we have affirmative evidence from the plaintiff that she accounted to Mr. Gray for all the money he gave her and that the defendant corporation had not paid any of her salary. In Lynch v. Rogers, 177 Md. 478, 10 A. 2d 619, the appellee, plaintiff, filed a suit in assumpsit for domestic services rendered by the plaintiff to the defendant's testator during the latter's lifetime. The principal question in the case was whether the defendant's demurrer prayer should have been granted.  In support of this prayer the defendant urged that the testimony on the part of the plaintiff failed to show affirmatively that the defendant's testator had not paid the plaintiff in his lifetime for her services.  Judge Parke in that case, after giving [*267]other reasons why the demurrer prayer should not have been granted, said at page 482: "and, thirdly, the general rule is that payment is a matter of defense, and so affirmative testimony by the plaintiff of non-payment for services rendered is not ordinarily a necessary part of the plaintiff's right to recover." In the case now before this Court we have affirmative testimony by the plaintiff of non-payment for services rendered. [***13]

   In Weil v. Lambert, 183 Md. 233, 37 A. 2d 312, an action in assumpsit was brought against the administrator of an estate for compensation for services rendered, among other items.  This Court there said, 183 Md. at page 243, 37 A. 2d at page 316: "While the lapse of time may raise of itself at common law a presumption of payment, the presumption will not arise if the length of time is not at least twenty years unless the circumstances of the particular case are such as to raise a presumption of payment. Provident Trust Co. v. Massey, 146 Md. 34, 125 A. 821; Morse v. National Central Bank, 150 Md. 142, 147, 132 A. 598; Lynch v. Rogers, 177 Md. 478, 486, 10 A. 2d 619; 22 Am. & Eng. Ency of Law, 2d Ed., 596; Wigmore on Evidence, 2d Ed. Sec. 2517.  The court does not, of course, consider the weight of the evidence which is a matter exclusively for the jury.  It is only concerned with the question of the legal sufficiency of the evidence.  Hartford National Bank v. Rutledge, 124 Md. 46, 65, 91 A. 790. If there is any evidence, however slight, legally sufficient as tending to prove the matters alleged, that is to say, competent, pertinent and coming from [***14]a legal source, the weight and value of such evidence will be left to the jury." Of course, there is no question of lapse of time in the instant case. 

   Finding no error, the judgment will be affirmed.

   Judgment affirmed, with costs. 

RIZZO et al. v. STATE (Three Appeals in One Record) 
No. 49, October Term, 1952
 
Court of Appeals of Maryland
 
201 Md. 206; 93 A.2d 280; 1952 Md. LEXIS 412

 December  12, 1952, Decided

   SUBSEQUENT HISTORY: [***1]

   Reargument of Constitutional Question Only Ordered as to Salsburg December 12, 1952.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed with costs as to Rizzo and Nicholson.  Reargument of constitutional question only ordered as to Salsburg.

CORE TERMS:  search warrant, seizure, seized, bookmaking, searched, right to raise, general issue, complain, convicted, arrest, lease, illegal search and seizure, pro tanto, arrested, repeated, aunts, Criminal Rules of Practice, Bouse Act, constitutional question, search and seizure, right to complain, closely analogous, motions to quash, definite term, rented, uncontradicted, reargument, sub-title, telephone, gambling

COUNSEL: Herbert Myerberg, with whom were Joseph Leiter and Louis M. Strauss on the brief, for the appellants.

   Ambrose T. Hartman, Special Assistant Attorney General, with whom were J. Edgar Harvey, Acting Attorney General, Albert J. Goodman, State's Attorney for Anne Arundel County, and C. Osborne Duvall, Assistant State's Attorney, on the brief, for the appellee.

JUDGES: Markell, C. J., and Delaplaine, Collins and Henderson, JJ.  Markell, C. J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*208] [**281] These are appeals from judgments and sentences on conviction of bookmaking. Defendants were arrested on warrants charging bookmaking. Before the magistrate[***4] the State's Attorney prayed jury trial.  In the circuit court the case was tried without a jury.  Code of 1951, Art. 52, sec. 14.  Wilson v. State, 200 Md. 187, 88 A. 2d 564.

   Before issuance of the warrants for arrest, and without a search warrant or any warrant at all, members of the Anne Arundel County police force, "upon the advice of the State's Attorney", entered by the use of an axe the rear room of a small two-room building in the rear of Roland Terrace Garage, at the intersection of Third Street and Governor Ritchie Highway.  There the officers arrested defendants and seized "incriminating evidence" [appellants' brief], the nature of which is not specified in either brief or appendix.  There were three telephones there, and three telephone wires leading [*209] in.  Motions of each defendant that "the articles, items and property enumerated in the return of the police as taken from the premises of your defendant, and all other property of the defendant in custody of the State taken from this defendant * * * be returned to your petitioner" were overruled.  Presumably (it does not affirmatively appear) the articles seized were admitted in evidence.

   As amended by Chapters[***5] 704 and 710 of the Acts of 1951 [approved May 7, 1951, effective June 1, 1951], the Bouse Act (Code of 1951, Art. 35, sec. 5) contains a proviso, "Provided, further, that nothing in this Section shall prohibit the use of such evidence in Anne Arundel, Wicomico and Prince George's Counties in the prosecution of any person for a violation of the gambling laws as contained in Sections 303-329, inclusive, of Article 27, sub-title 'Gaming', or in any laws amending or supplementing said sub-title." As to Anne Arundel County this proviso was added by Chapter 704, as to Wicomico and Prince George's by Chapter 710.  Defendants contend that Chapter 704 denies them the equal protection of the laws and is unconstitutional.  The State contends that the act is constitutional, and also that defendants had no title or interest in or to the premises searched and therefore no right to complain of the search and seizure as illegal.

   There is no evidence -- and no allegation other than any implication in mention of "the premises of your defendant" in the unsworn petitions for return of property seized -- that defendants Rizzo and Nicholson had any interest in the premises.  Defendants say it is sufficient[***6] that they claim the property seized. They cite United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, and the often repeated statement of this court that "one cannot complain of an illegal search and seizure of premises or property which he neither owns, nor leases, nor controls, nor lawfully occupies, nor rightfully possesses, or in which he has no interest." [Italics supplied].  Baum v. State, 163 Md. 153, 157, 161 A. [*210] 244, 245. Although this statement in the Baum case was believed to be supported by many cited state and federal cases, including one Supreme Court case, it appears that recent Supreme Court cases recognize a broader right to complain. United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93, citing McDonald v. United States, 335 U.S. 451, 456, 69 S. Ct. 191, 93 L. Ed. 153. In the Jeffers case narcotics seized without a search warrant in a hotel room of defendant's aunts, in [**282] the absence of defendant and his aunts, were ordered suppressed as evidence, though not returned to defendant because they by law were contraband.  The decision was not based on the ground that the seizure was illegal, though the search was not (as[***7] to the defendant), but on the ground that "the search and seizure" were "incapable of being untied", and therefore were an invasion of the defendant's rights, though he had no interest in the premises.  We need not further pursue the ratio decidendi in the Jeffers case.  If it supports defendants' contention in the instant case, it is contrary to the often repeated statement of this court in the Baum case.

   We are not infrequently reminded by counsel of our statement in Wood v. State , 185 Md. 280, 285, 44 A. 2d 859, 861, that "The Bouse Act and the Act of 1939 amount to adoption pro tanto of the Supreme Court decisions under the Fourth Amendment." The context shows that the extent of pro tanto was the meaning of "illegal search and seizure" as dependent upon want of "probable cause".

   In the instant case defendants were convicted on a charge of "making or selling a book or pool on the result of a running race of horses". "Incriminating evidence" to support that charge necessarily showed that defendants were "using and occupying" the building for bookmaking, an offense committed in the officers' presence.  Since, therefore, defendants Rizzo and Nicholson could[***8] not complain that the search of the premises, in which they had no interest, was illegal, the arrest of [*211] them without a warrant and seizure of this evidence was not unlawful as to them.

   Defendant Salsburg testified that he rented the premises by an oral lease, at $50 a month, for no definite term, from a named owner, and that he paid the rent to the owner in cash.  This testimony was uncorroborated but uncontradicted. It was received by the judge with evident suspicion, but the judge did not say that he did not believe it or that he overruled Salsburg's motion to return on that ground.  We cannot hold that the judge (who saw the witness) could not believe Salsburg's testimony and should have overruled his motion on that ground.  The fair implication, in the absence of anything to the contrary, is that the motions were overruled because the act was held constitutional and not because Salsburg had no right to raise the question.  Cf. Lambert v. State, 196 Md. 57, 61, 75 A. 2d 327, 328.

   In Sugarman v. State, 173 Md. 52, 57-58, 195 A. 324, 326, we held that a motion, before trial, to declare a search warrant null and void and to suppress use of the articles seized[***9] as evidence and compel return of them was "founded upon no statute of this State", nor "supported by precedent to justify its propriety." In Smith v. State, 191 Md. 329, 334, 62 A. 2d 287, 5 A. L. R. 2d 386, and in Asner v. State, 193 Md. 68, 73, 65 A. 2d 881, 883, we noted that such a motion to quash a search warrant is now authorized by statute.  Code of 1951, Art. 27, sec. 328.  In the instant cases the motions made are not authorized by statute, but are closely analogous to motions to quash. Rule 3(1) of the Criminal Rules of Practice and Procedure provides that, "Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion." Rule 3(4) provides that, "A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue." In the instant cases the court did dispose before trial [*212]of the questions thus raised.  This rule includes the motions in the instant cases.

   The question of the constitutionality of Chapter 704 is therefore presented for decision in Salsburg's case.  We have[***10] decided to order a reargument on this constitutional question alone in Salsburg's case.  For the reasons already stated, the judgment will be affirmed as to Rizzo and Nicholson. 

   Judgment affirmed with costs as to Rizzo and Nicholson.  Reargument of constitutional question only ordered as to Salsburg. 

LICHTENBERG et ux. v. SACHS (Two Appeals in One Record) 
No. 163, October Term, 1951
 
Court of Appeals of Maryland
 
200 Md. 145; 88 A.2d 450; 1952 Md. LEXIS 327

 May  9, 1952, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree and denial of wife's petition affirmed with costs.

CORE TERMS:  right of way, predecessor, tenant, easement, permissive, user, enjoin, public road, prescriptive right, farm, acre, claim of right, deed dated, abandonment, properly denied, gravel, occupier, equity jurisdiction, conversations, landowner, decree, injunction, permission, abandoned, deed, grading, motor vehicles, certain land, own land, unenforceable

COUNSEL: Linwood L. Clark for Jerome Lichtenberg.

   Noah A. Hillman for Evelyn E. Lichtenberg.

   George B. Woefel for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson and Markell, JJ. Markell, J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*148] [**451] These are appeals from a final decree for an injunction restraining defendants from interfering with the [*149] use by plaintiff and the owners and occupiers of certain land of plaintiff of a right of way as now laid out from plaintiff's land through certain[***7] land of defendants to Hammonds Ferry Road.  In a full and careful opinion Judge Clark held that plaintiff is entitled to a prescriptive right of way, and to protection by injunction against interference by defendants with use of this right of way. Neither the briefs nor the appendices, nor even the transcript (except Judge Clark's opinion), contain a plat or an understandable description of the lands in question.  Judge Clark, "at the suggestion of defendants' counsel, and with the consent of plaintiff's counsel, went and look at the locus in quo." He says, "The banks along the sides of this road, where it goes down the hill back of the tenant house on the Robinson property [defendants' property], are, at places, at least six feet high.  This 'cut' through which this road runs was not put there by grading or anything like that.  It got there by the gradual erosion of the soil.  The banks along the sides of this [**452]road, wherever it goes through a 'cut', have an old look.  I venture the opinion that that road has been there for more than one hundred years.  But, we do not have to go back that far.  The evidence clearly establishes that the road was there and in use when[***8] Mr. and Mrs. Jankiewicz purchased the property [plaintiff's property] in 1898, and that it has been in use continuously ever since.  This raises a presumption that the user was adverse, and, under a claim of right, and casts the burden of showing that the use of the way was permissive or by license inconsistent with a claim of right, on the owner of the land.  (Cox v. Forrest, 60 Md. 74; Potomac Edison Co. v. Routzahn, [192 Md. 449, 65 A. 2d 580]; Wilson v. Waters, [192 Md. 221, 227, 64 A. 2d 135]; Smith v. Shiebeck, 180 Md. 412, 24 A. 2d 795; Southern Md. Agricultural Association v. Meyer, [196 Md. 31], 75 A. 2d 89.)" Evidently Judge Clark understands the properties; we do not.  Even if we were unable to accept his geological conclusions as to the age of the [*150] road, it is, as he says, unnecessary to go back that far.  The testimony fully supports his conclusions as to the last fifty years.

   The properties are described in Judge Clark's opinion.  "The question posed by this case is whether the plaintiff is entitled to a right of way, by prescription, over the defendants' property, to the Hammonds Ferry Road.  Said Hammonds Ferry Road, at this point, [***9] runs approximately north and south.  The defendants own a farm containing 97 3/4 acres of land, situate and lying on the west side thereof.  This farm formerly belonged to William A. Shipley and was devised by him to his daughter, Armenella M. Robinson, and in the testimony is generally referred to as the 'Robinson property'.  I will, hereinafter, at times, so refer to it.  The defendants acquired this farm by deed from John R. Norris, trustee, dated December 8, 1950, although they had purchased it sometime prior to that date.  The whole 97 3/4 acres is in said deed described under one set of courses and distances, but it really consists of two tracts, one containing about 25 acres, and the other 70 some acres. The plaintiff owns a farm containing 35 1/2 acres of land, lying west and north of the defendant's said land.  The 25 acres tract belonging to the defendants as aforesaid, lies between the plaintiffs' land and said Hammonds Ferry Road. There is a small tenant house on said 25 acre tract about 1,000 feet back from said Hammonds Ferry Road.  The road over which the plaintiff claims a right of way begins at said Hammonds Ferry Road and runs thence westerly to a point in front[***10] of said tenant house, and thence continues on past the same down through a small piece of woodland, to the plaintiff's property, and thence continues on, first, over the plaintiff's land, then over a small stream, and then on to the house thereon.  The plaintiff acquired this land from his father by deed dated November 12, 1948, the elder Mr. Sachs acquired it from Frank Jankiewicz and Katie, his wife, [*151] by deed dated October 4, 1933.  Mr. Janicwicz and Katie, his wife, acquired it from James M. Pitcher, and others, by deed dated August 18, 1898.  The plaintiff's land is entirely surrounded by the lands of others, and there is no means of ingress or egress thereto or therefrom except over the road in question.  Shortly after the defendants bought the Robinson property, the elder Mr. Sachs, who apparently lives in the neighborhood, went over one day began 'rounding up' or grading the road with an autopatrol, or gasoline propelled grading machine, and Mr. Lichtenberg ordered him off and threatened to shoot holes in the machine's tires if he did not go. Mr. Sachs left.  Mr. Lichtenberg then placed a barricade across the road. This suit followed.  When at the beginning of the[***11] trial, it was discovered that title to the Robinson property had been taken in the names of Mr. and Mrs. Lichtenberg, then plaintiff obtained leave to amend his bill by making Mrs. Lichtenberg a party defendant, and, when this amendment was made, it was agreed that the answer filed by Mr. Lichtenberg be considered as having been filed by both Mr. and Mrs. Lichtenberg, and the case continued with Mr. and Mrs. Lichtenberg as defendants.  It will not be necessary for me to review the testimony.  It suffices to say that it very definitely establishes that the plaintiff and his predecessors in title have used the road in question for at least fifty years.  As a [**453] matter of fact, I think it had been used much longer than that." Then follows the portion of the opinion first above quoted.

   As Judge Clark says, plaintiff's property was conveyed to him by his father by deed dated November 12, 1948, to the father by the Jankiewiczs by deed dated October 4, 1933, and to the Jankiewiczs by deed dated August 18, 1898.  The record does not show a common source of title to plaintiff's and defendants' properties.

   Defendants contend that although ordinarily this court does not review the [***12]lower court's decision as to [*152] the credibility of witnesses, the decision on the evidence is clearly erroneous and should be reversed.  They assert that the court's opinion "is replete with beliefs and assumptions that have no factual support in the record", No less than eight instances are specified.  None of the eight can properly be so characterized -- unless in a purely rhetorical sense.  None of them are factually unsupported statements in the opinion; all are argumentative or verbal criticisms by defendants of the opinion, especially parts of the opinion which reflect Judge Clark's impressions from viewing the property.  We have suggested that we might hesitate to accept all of Judge Clark's conclusions as to the age of the road.  On the other hand, on questions of fact on which defendants rely on bits of testimony and attenuated inferences contrary to what Judge Clark saw, e.g., whether the road now physically exists, or whether between 1898 and 1914, in the eyes of a boy born in 1898, the right of way in question was a road or a "path", and other questions as to use or abandonment of this road and use or existence of substitutes, we are disposed to give controlling[***13] weight to what Judge Clark saw and his inferences therefrom.

   We concur in the above quoted statements by Judge Clark, and in his reasons and citations of authorities, as to the continuous use of the road since 1898, and the presumption that the user was adverse.  Defendants assert that the road was not used for more than twenty years, that the use was not adverse but permissive, and that it has been abandoned. These seemingly contradictory contentions reflect the same misinterpretation of the same facts which establish the opposite of these contentions.  This road is a road, not a "path", but has never been a boulevard.  Plaintiff's property is not one of the paradises which exist in other parts of Anne Arundel County.  It is partly woodland, it has not been continuously farmed, and the part of the road from [*153] plaintiff's property to the Robinson tenant house has never been affected by congestion of traffic.  Some of the tenants of plaintiff's property have not even owned automobiles.  Consequently tenants have sometimes used the road principally by foot, and have had few visitors, on business or pleasure, by automobile. Nevertheless, the fact that the road has been less[***14] used than some other roads does not mean that it is not necessary -- indeed indispensable. The fact that it is the only road makes it indispensable, whether it is used by automobile every hour or once a week.

   The same is true of defendants' assertions that plaintiff, or his father, his predecessor in title, had other outlets by other public roads than Hammonds Ferry Road.  Plaintiff's property adjoins one or more of his father's properties which border on some other public road. When plaintiff's father owned the property now in question, his tenant sometimes walked, and occasionally drove, on a good day, across the field to the father's house and vice versa.  There was, however, and is, no road across the fields, and hence no outlet from plaintiff's property through his father's.  Any road, good or bad, is better than none at all, and some road is indispensable.

   To show that use of the right of way was not adverse but permissive, defendants called as a witness a son of the Jankiewiczs, who was born a month before his parents moved to the property and therefore was about sixteen years old when they moved away.  He says that when he was ten or twelve years old he heard conversations[***15] between his father and mother to the effect that sometime prior thereto the father had got permission to go through the Robinson property.  Judge Clark says, "I do not think this testimony should be taken very seriously.  * * * Unless he was a [**454] more precocious youngster than I think he was, he would hardly be remembering conversations which occurred before [or when] he was ten or twelve years old." We agree, especially if the conversations indicated that [*154] user was permissive and not adverse, a distinction which probably neither the witness nor his parents then or ever since understood.  Judge Clark also says, "As heretofore stated, the road was the only means of ingress to and egress from this property, and it is a little difficult for me to believe that Mr. and Mrs. Jankiewicz would have bought this property if they had not been told and believed that they could use the road in question as a matter of right." If they got any permission to use the Robinson property, they probably thought it was irrevocable.  An oral permission, believed to be irrevocable but unenforceable by reason of the Statute of Frauds, may evidence a claim of right and indicate that[***16] user was adverse and not permissive. Tiffany on Real Property, (3d Ed.) § 1196; Schmidt v. Brown, 226 Ill. 590, 596-600, 80 N. E. 1071, 11 L. R. A., N. S., 457.

   Judge Clark says, "I am not quite clear as to exactly what the defendants' defense is.  In their answer, they seem to attempt to say that there is, in fact, no road running from the plaintiff's property through their property to the Hammonds Ferry Road; and Mr. Lichtenberg testified that when he looked at the Robinson property before he bought it, he did not see any road running through it.  I just do not understand what he means by his answer or his testimony.  The road is there.  I saw it with my own eyes; and walked over it with Mr. Lichtenberg and his counsel and Mr. Sachs and several others.  I not only found the road there, but I found it well defined and marked on the ground. 

   "It was suggested that the use of this road by the plaintiff, and his predecessors in title was not 'exclusive'.  The basis for this argument seems to be that from the tenant house to the Hammonds Ferry Road, the road over which the plaintiff claims his right of way, was used by the plaintiff, and his predecessors in title, jointly[***17] with the defendants, and their predecessors in title, and the occupier of said tenant house.  I do not understand [*155] that, in order to establish an easement by prescriptive use, the owner of the dominant estate must be the only one who uses the road. The word 'exclusive' when used in connection with a prescriptive right of way simply means that the claim of the one asserting the right must not depend on the claim of someone else.  (Cox v. Forrest, supra; Wilson v. Waters, supra; Southern Md. Ag. Association v. Meyer, supra.)" We concur in these views.

   Judge Clark also says, "The defendants also suggest that, as the part of the road from the tenant house out to the Hammonds Ferry Road is now, and for some years, has been used by the defendants, and their predecessors in title, and the occupiers of the tenant house on the Robinson place, as well as by the occupiers of the plaintiff's farm, this fact negatives the presumption that the use of the road by the plaintiff, and his predecessors in title, was adverse." In Tiffany on Real Property (3d Ed.), § 1196a, it is said, "The user by another of a way or space laid out or left by the landowner, concurrently with[***18] its user by the latter, has occasionally [never in Maryland] been regarded as presumably by permission of the landowner; but whether such user is permissive would seem properly to be determinable with reference to all the circumstances of the case, more particularly the character and location of the way or place of passage." See also, Tiffany, § 1199; Schmidt v. Brown, supra; Bennett v. Biddle, 150 Pa. St. 420, 24 A. 738. In the instant case no circumstance warrants an inference that, because defendants (and their predecessors) have used the same land as plaintiff (and his predecessors) for passage between the Robinson tenant house and the public road, the plaintiff's use has been permissive. The only purpose of the road between plaintiff's property and the Robinson tenant house was to continue to the public road; no purpose was served by the part of the road between plaintiff's property to the Robinson tenant house alone.  On this point Judge Clark says, "I hold that the circumstances of this case, particularly the facts (1) that the plaintiff, [**455] and his [*156] predecesssors in title, had no other way to reach a public road, (2) that the road in question [***19]has been used for that purpose for more than fifty years, (3) that it has always been at substantially the same place, and with a well defined road bed, and (4) that it has been kept up by the plaintiff, and his predecessors in title, as the road to their property, are sufficient to raise a presumption of adverse use, and that this presumption is not overcome by the fact that about half of the road was for some years used jointly by the owners of the dominant and servient tenements.  (See Tiffany, Real Property, [3d Ed., §§ 1196a, 1199].)"

   On the subject of abandonment, Judge Clark says, "Finally, the defendants suggest that the plaintiff's easement if it ever existed, has been lost by abandonment. The evidence just does not support this inference.  There must be something more than mere non-user to support an abandonment of an easement once acquired.  (Baugh v. Arnold, 123 Md. 6; Canton Co. v. Baltimore City, 106 Md. 69.) While there is some evidence here that, at times, the road was allowed to get in a rather bad state of repair, there is certainly no evidence that either the plaintiff or his predecessors in title, ever intended to abandon it.  On the contrary, the[***20] fact that they repaired the road after heavy rains, and repeatedly replaced the bridge over the stream on their own land when it was washed out, indicates very strongly that they had no intention of abandoning anything.  This road confessedly is not a boulevard, but it is certainly better than no road at all.  To hold that Mr. Sachs has abandoned this road, would be tantamount to saying that he had abandoned his farm; and I am not willing to go that far, or anything like that far." We concur.

    Judge Clark also says, "Mr. Lichtenberg has opened up a gravel pit on the south side of the road in question at a point some four hundred to five hundred feet back of the tenant house.  He not only dumped several loads of gravel in the road just beyond this point, thus effectually blocking the road, but his trucks have, in hauling [*157] gravel from this gravel pit out to the Hammonds Ferry Road, cut up a part of the road so badly that said part is now impassable to motor vehicles, and it will remain that way until repairs are made.  This condition has only existed for the last year or so, and it is certainly not a defense to this suit." We concur.

   Amid a maze of interlocutory proceedings[***21] were petitions of defendant for an order "retaining jurisdiction in the case until the complainant, if he so desires, proceeds at law to establish his alleged title to said right of way", and for an order "that issues be framed and sent to a court of law to be tried, for the information of [the court] in making final disposition of the injunctive relief prayed." Sending of issues to a court of law is discretionary.  Commissioners of Cambridge v. Eastern Shore Public Service Co., 194 Md. 653, 72 A. 2d 21, and cases cited.  In denying the petition for issues there was no abuse of discretion.  If the application for stay until plaintiff "proceeds at law" was a belated effort to set up the defense of lack of equity jurisdiction, it was properly denied for each of the reasons mentioned by Judge Clark, (1) that the defense was waived by not properly raising it, by demurrer or answer, and by praying retention of jurisdiction and later invoking equity jurisdiction to send issues to a court of law, (Wells v. Price, 183 Md. 443, 450-451, 37 A. 2d 888; Bogley v. Barber, 194 Md. 632, 641, 72 A. 2d 17, 21) and (2) that, in view of the absence of any other road, equity had jurisdiction [***22]in the first instance.  Campbell v. Bishields, 197 Md. 572, 579-580, 80 A. 2d 262, 266. Whether or not in the course of a century the rule that equity ordinarily has not jurisdiction to enjoin trespasses or interference with easements until after title has been established at law has become an exception and the exceptions to the rule have become the rule is a speculation we need not pursue.  Campbell v. Bishields, supra, and cases cited; Needle v. Scheinberg, 187 Md. 169, 173-174, 49 A. 2d 334.

   [*158] The original bill was filed against defendant husband alone.  At the very beginning of the final hearing, during the examination of plaintiff as the first [**456] witness, the wife was made an additional party defendant in the following fashion, "Q. Jerome Lichtenberg is the defendant?  A. Yes. (Mr. Woefel) May it please the court, at the time we drew this bill, this deed was placed on record.  I see now that the deed is in the name of Mr. Lichtenberg and his wife.  (Mr. Clark) We were going to consent to your adding the wife's name.  It was brought against him and it should be both.  We will consent to that amendment.  (The Court) Let the record show that interlineation[***23] making Mrs. Lichtenberg defendant by consent.  I suppose it is also agreed that the answer filed by Mr. Lichtenberg will also be the answer filed by Mrs. Lichtenberg.  (Mr. Clark) Correct." After the final decree the wife, by other counsel, filed a "petition to intervene" in which she alleged, among other things, "That though she knew this suit was filed nevertheless when she was not mentioned in the bill of complaint she simply considered that the plaintiff, or his solicitor, had thought it was not necessary.  That during the trial of this cause your petitioner's name was mentioned by the judge as an owner, but she did not understand that she was being made a party or that she could be sued in that way, though she was naturally interested in her husband's case.  * * * that had she been sued and given an opportunity to defend this case (in addition to the right to demur) if she had been required to proceed with a defense at trial she would have testified, among other things": (a) that plaintiff had been paid three or four times what his entire property was worth when the State Roads Commission of Maryland paid him $8,600 for four acres of the thirty-five acres in this case[***24] on the claim that the thirty-five acres was made worthless by the Baltimore-Washington Expressway cutting off his only way in and out of the property (over his father's farm to the River Road); that plaintiff claimed the right of way now in issue had been lost by non-use and [*159] also had become impassable.  * * * She prayed (a) that the injunction be dissolved as to her, (b) that if plaintiff desires an injunction against her he be required to bring her into this case as a party defendant, (c) that she be properly served with process and given time to answer and defend.  The wife appeals from refusal of the court to sign any order on her petition, absolute or nisi, granting or denying relief.  We think she was at least entitled, on request, to an order denying relief.  Ernst v. Keough, 197 Md. 554, 80 A. 2d 23. However, an affidavit of counsel states that the court orally refused to sign an order and both parties treat the refusal as here on appeal.  If the wife was not technically a party to the instant case, her neglect to appear as a technical party would make the decree as binding upon her as if she were such a party. Albert v. Hamilton, 76 Md. 304, 25[***25] A. 341; Rody v. Doyle, 181 Md. 195, 199-201, 29 A. 2d 290, and other cases cited.  We think, however, that the wife was a technical party when her husband's counsel, in her presence, consented to make her a party and on her behalf made his answer hers.  At the argument, in response to a question from the bench, we were informed that the wife and the husband are not separated but are "a delightful family".  Obviously her petition represents a wholly amicable repudiation of her husband and their lawyer, for their mutual benefit, to get in her name a rehearing which they could not otherwise obtain.  There is no evidence to overcome the presumption that counsel in fact had her authority to do what he did for her in her name and in her presence.  Posko v. Climatic Control Corporation, 198 Md. 578, 584, 84 A. 2d 906, 909. If the wife's petition be treated as an application to open an unenrolled decree, it was properly denied. There is no showing why the alleged facts could not have been discovered earlier.  Moreover the alleged fraud was not a fraud upon defendants.  If plaintiff had a right of way, as we hold he had, he may have cheated the State Roads Commission, but not defendants, [***26]by representing that he had no such right of way. At the argument [*160]defendants denied any such fraud against anyone.  The facts are not before us, but the averments of the petition are so lacking in particularity that they do not state even a colorable case.

   Decree and denial of wife's petition affirmed with costs. 

MAURER et al. v. SNYDER et ux. 
No. 115, October Term, 1951
 
Court of Appeals of Maryland
 
199 Md. 551; 87 A.2d 612; 1952 Md. LEXIS 288

 April  2, 1952, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree reversed with costs, and cause remanded for passage of a decree in accordance with this opinion.

CORE TERMS:  fishing, occupation, crab, fish, boat, nuisance, catch, bait, zoning, dollars, season, waterman, selling, regulation, dwelling, peelers, zoning act, injunction, crabbing, neighbors, river, chip, zone, buy, beauty parlor, regulations thereunder, primary use, transporting, decree, dozen

COUNSEL: Julius G. Maurer, with whom was John G. Rouse, Jr., on the brief, for the appellants.

   Emanuel Klawans for the appellees.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson and Markell, JJ. Markell, J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*552] [**613] This is an appeal from a decree dismissing a bill for injunction against (a) alleged violations of the [*553] Anne Arundel County zoning act and regulations thereunder and (b) continuation of alleged nuisances.

   Plaintiffs and defendants own adjoining properties at Magothy Beach, each fifty feet wide and running about 565 feet from the public road in the rear to the waterfront.  Zoning regulations applicable to these properties were adopted on April 20, 1948 and again on February 15, 1949.  These properties were zoned as "Cottage Residential".  Of six zones provided for, the "Cottage Residential" is the highest, most restricted zone. In it "the following uses[***4] are permitted: Single or two-family dwellings. -- Schools or churches.  -- Public buildings.  -- Home occupations and professional offices, providing that such an occupancy does not usurp a structure's primary use as a dwelling. -- Accessory buildings to any of the above uses." A regulation provides, "Signs advertising professional offices or home occupations may not exceed two square feet in area." Defendants do not question the validity of the act or the regulations or claim any right to a non-conforming use.

   The bill alleged that defendants "are engaged on [their] lot * * * in the business [a] of transporting for profit * * * fishing parties and (b) of selling for profit live crabs, peelers, soft crabs, minnows, fish and bait, all in * * * violation of said zoning act and the regulations * * * thereunder"; and also "that practically all of the numerous people who have become patrons of * * * defendants drive upon [defendants'] lot * * * in automobiles; that the roadway on * * * defendants' * * * property used by said patrons is not surfaced * * * and all of said automobiles stop, start, back and turn within approximately seven feet of the bedrooms in [plaintiffs'] [***5] house * * *; that the driving, stopping, starting, backing and turning of said automobiles produces not only clouds of dust but also fumes and gases which infiltrate the bedrooms and said home of [plaintiffs] to such an extent that they are denied the peaceful use and comfortable possession thereof"; and also "that * * * defendants employ in the operation of their said business two motor [*554] launches, four row boats and a number of live boxes; * * * when defendants * * * made repairs to their said equipment, the discarded materials, consisting of boards with protruding nails and other refuse, was dumped overboard by them; * * * the bulk of said discarded material and refuse washed up on the beach of [plaintiffs'] lot * * *, and * * * it became necessary for [plaintiffs] to remove [it]; * * * since some of said refuse material has become submerged and is not discernible through ordinary inspection, the use of [plaintiffs'] bathing beach * * * has become hazardous and dangerous." The bill prayed an injunction against [a] use by defendants of their premises or any part thereof "for the sale of crabs, fish, bait and oysters or for any other commercial use, including [***6] the transportation of fishing parties, not permitted" by the Anne Arundel County zoning act and the regulations thereunder and [b] "continuing and perpetuating the nuisances described and set forth in the bill * * *." The answer denied "that defendants engage on said lot in the business of transporting fishing parties for profit, or selling for profit crabs, peelers, minnows, fish or bait" and alleged that "the people they have taken out on fishing parties have never paid them anything; * * * they do not fish commercially but only for sport, and with hook and line and not with nets, and only on a comparatively few occasions, when they made an excessive catch, did they dispose of the excess, not to the general public, but to neighbors, and not for market price but for a nominal sum".  "They say that nobody comes to defendants' premises at any point near plaintiffs' premises other than defendants' friends and there is no space in which to park more than two cars, that nobody comes during the week, and only a few people on some week ends.  * * * the so called 'customers' who come to defendants' premises do not drive by plaintiffs' premises at all, and park about two [**614] hundred[***7] feet from plaintiffs' home." Defendants deny throwing refuse overboard, say they have two small children who would be injured by doing so, and say that refuse of [*555] which plaintiffs complain comes from plaintiffs' own wharf and live box.  Mr. Snyder's testimony shows that some of these denials in the answer are not true, e.g., denial that he "sold for profit crabs, peelers, minnows, fish or bait", and assertions that "the people he had taken out on fishing parties had never paid him anything" and that "only on a comparatively few occasions when he made an excessive catch, did he dispose of the excess, not to the general public but to neighbors, and not for the market price, but for a nominal sum."
 
   Apart from zoning questions, plaintiffs' charges of nuisances call for little discussion.  Strange to say, at the hearing and in this court the principal nuisance complained of was one not mentioned in the bill, viz., disturbance of sleep by noises from automobiles and other sources in connection with the arrival and departure of fishing parties at three or four o'clock in the morning.  Most of the nuisance charges seem exaggerated and improbable on their face.  All presented[***8] questions of fact.  The trial judge, who saw and heard the witnesses, decided these questions of fact against plaintiffs.  In so doing he was not clearly wrong; we think he was right.  We shall only add that the instant case, both the charges and the facts, falls far short of Fox v. Ewers, 195 Md. 650, 75 A. 2d 357, in which trucks at the plaintiffs' bedroom window were held a nuisance, Green v. Garrett, 192 Md. 52, 63 A. 2d 326, the baseball case, or Five Oaks Corporation v. Gathmann, 190 Md. 348, 58 A. 2d 656, a restaurant case, in which latter cases noise and other annoyance caused by attracting a metropolitan or suburban crowd for amusement at hours when neighbors preferred to sleep, were held nuisances.

   On the zoning questions defendants' contention, which was sustained by the court, is that their commercial maritime activities (if they are commercial), both the fishing parties and the sale of crabs, peelers and bait are "home occupations" permitted by the regulations. These questions are essentially questions of law as to the meaning of "home occupations".  We must construe [*556]this term and apply our construction to what defendants have done and are doing, [***9] regardless of the names they apply to their acts. Plaintiffs' witnesses, except their two brothers, one of them their counsel, were the defendant Mr. Snyder and friends or associates of his.  The witnesses were not always candid -- Judge Clark did not find them candid -- but there are no important conflicts of testimony (except as to nuisance questions) other than some conflicts between what was first denied and later admitted.  If defendants' activities are not clearly stated in the testimony of themselves and their friends and associates, they are readily inferrable therefrom.

   Mr. Snyder's own position is two-fold, (1) he admits sales -- and advertising signs which he could not deny -- of "hard crabs", "peelers" and "bait", but minimizes the amount of such transactions, (2) he says he does not fish commercially, only for sport, and his fishing parties were confined to "friends".

   Regarding his occupation and his fishing parties, Mr. Snyder testified, "Q. Mr. Snyder, what do you do?  A. I forgot to mention I crabbed.  I caught some crabs. Q. What do you do with the crabs? A. I ketch crabs whenever I can catch crabs. I don't always bring them home.  I bring them home and put them [***10]in the live box.  If anybody wants to buy any, I will sell them.  Q. You do sell crabs? A. Occasionally when I have them.  I don't always have them. I don't have any crabs now.  Q. You do have signs advertising crabs, don't you? A. That's right.  Q. You have one in the front of your property and one on the opposite end of the property?  A. That's right.  Q. What else do you do in your spare time?  A. Well, I go fishing when the fish are biting.  I fish with a hook.  Q. With whom do you go fishing? A. Well I go fishing lots of times by [**615]myself; sometimes I go with my boy; sometimes I take my father; sometimes my father's friends; sometimes my friends; sometimes relatives' friends.  Q. How often is that?  A. Well this year I may have went, so far this season, I [*557] may have went fishing ten or twelve times off-hand.  * * * Q. What do you use that boat for, Mr. Synder: A. I use that boat for my own pleasure, fishing with a hook and line.  Q. Do you take anybody with you when you go out?  A. Yes.  Sometimes I go by myself; sometimes I take somebody.  Q. How often during the week do you go?  A. Well it all depends.  Sometimes I don't go any.  I haven't went fishing[***11] for three weeks.  Q. You were fishing quite often prior to that thought, wern't you?  A. For two weeks this season, I fished.  Q. How about June, did you have Mr. Collins out in June?  A. I went fishing the last part of June I think.  Q. When you go out, how many people do you take with you?  A. Like I told you -- sometimes I go myself, sometimes I take one, may take my boy, my father -- (Court) Do any of them pay you any thing?  (Witness) They chip in and pay me for my trouble, expenses and gas and all.  (Court) That's what I want to know about -- this chipping in business. How much do they chip in?  (Witness) Well they chip in sometimes two dollars, sometimes five dollars. I have gotten as high as thirty dollars. When they catch a lot of fish, the fellows feel good.  (Court) What is your charge?  (Witness) I don't charge anything for my boat. Q. Isn't it true Mr. Snyder, that you charge ($5.00) Dollars a piece for people you take out.  A. No, sir, absolutely not. Q. How do you determine your expenses then when you come in?  A. I don't determine any expenses.  A lot of fellows I take out for nothing, absolutely nothing.  They don't pay me a penny.  Q. How do they come to get[***12] to your place?  A. Well, they are all friends of mine.  Everyone that goes fishing. Q. What do you mean by friends -- tell us who your friends are?  A. Well, I have some friends, people that have known me ever since I was ten -- twelve years old.  They come down and go fishing with me." He then testified, in response to questions by the court, "Q. Well you would starve to death if you did it that way.  You have a boat there.  You have to make a living.  A. I make a living. Q. You don't make a living with that [*558] boat. A. No sir.  Q. But you have to make a living somehow.  A. Yes, sir.  Q. Do you want me to understand that any time a friend comes along that you just get in your boat and stay out as long as he feels like staying.  A. I stay as long as I want to stay, your Honor.  Q. And you don't make him any charges at all?  A. No sir.  Q. Well how do you find time to make a living then?  A. I make a living.  I am a carpenter by trade.  Q. Well how can you work at your trade when you are out on the river fishing? A. Well I go crabbing. I catch crabs. Q. Well nobody pays you for working at carpentry when you are out on the river doing that?  A. No sir, but I still crab. [***13] I make money crabbing. I catch crabs and sell them.  I never could make a living by taking what people offered me.  If I depended on people just chipping in to pay me I would have starved to death." Previously he had found it difficult to say just what his occupation was.  "Q. Are you employed now Mr. Snyder?  A. Well I am always employed off and on.  Q. Where? A. In all different places.  I do all kinds of work.  [**616] Q. Where?  A. All different places.  Q. Would you mind telling us some of the places?  A. Well, I may go down the river a certain ways and repair a boat, or anybody who may want a boat repaired, I am a boat mechanic; I am a motor mechanic; I may fix a man's car; I am a carpenter; I am a boatbuilder; I work in a boatyard.  Q. For whom did you work last week?  A. Last week I was working for myself, drawing up plans to build three runabout boats. * * * Q. You are working on plans to build three runabouts?  A. Drawing plans.  Q. What do you propose to do with these runabouts?  [Objection] (Court) Overruled.  The question is, what he is getting at in an indirect way, is to show that this man hasn't got any regular job.  A. One of them I am going to use and my[***14] boy's gonna use one, just for pleasure and running around the river, like I did before; I may use them myself for a season; then I will sell them if anybody would want to buy one.  Q. So you propose to engage on that property in the building of boats? A. No. Well for these [*559] boats, yes.  * * * Q. Did you do any other work in 1951?  A. Well I do so many little jobs, I can't remember where they are, the people's names.  I am sort of a 'jack of all trades'.  I know a lot of people and I may do a job and forget it tomorrow." Later he testified that he had taken out "I guess" twelve fishing parties in the 1951 season (before the trial, which began on August 16th) and "maybe" twenty-five in the 1950 season. He testified, "I never made any profit on it".  Contrary to the averments of his answer, he testified that when he had a large catch of fish he did not sell it to neighbors, but took it to the market, that in 1951 he had sold about sixty cents worth of fish on the premises, about two hundred dollars worth off the premises, in 1950 about fifteen dollars worth on the premises.

   There is no evidence that he advertised fishing parties.  No one was identified as one of the "people[***15] that have known him ever since he was ten or twelve years old".  It is a fair inference that anyone known to him as interested in fishing parties -- and willing to "chip in and pay him for his trouble, expenses and gas and all" -- was sufficiently qualified as a "friend" to go on such parties.  Mrs. Snyder testified that "it takes a lot of money to maintain the boat and buy gas and he loves to fish and he is just tickled when somebody offers him money for gas".  One of defendants' neighbors, who has gone on fishing parties with Mr. Snyder, testified, "Q. But you just live there and you have gone out to help Snyder catch fish so you can sell them in the morning? A. Yes.  I wasn't paid like a regular fishing party; I just chipped in and helped pay expenses.  Q. What do you mean by expenses.  A. Gas, oil, beer, food. (Court) How much did you chip in?  (Witness) One time two dollars; another time three.  * * * Q. All those fellows go out and help catch fish in order to sell them at the market?  A. Well we catch 300 fish, who's going to take them?  I take home enough to eat and let Mr. Snyder have the rest." Mr. Snyder is not a "gentleman of leisure" able to live without working.  It[***16] is evident that when he is [*560] crabbing, or fishing, to the extent that he crabs and fishes, that is his occupation for the time being.  Whether he calls it "fishing commercially" or "fishing for sport", and whether he calls his return "profit" or "payment for his trouble [e.g., his time and earning capacity], expenses and gas and all", it is a commercial undertaking and what he gets is compensation for work at his occupation.

   Mr. Snyder testified that he has five live boxes, three in the water and two smaller ones; they will hold altogether "maybe sixty dozen"; he usually has about fifty to sixty dozen crabs. Ninety-five per cent of the people who come to buy crabs come in row boats. Sometimes he sells fish by the pound, sometimes by what he thinks they weigh.  He has two scales; when people come in to buy fish, he uses either scale; the customers want to know just how much [**617] money to give him.  At the end of Mr. Snyder's testimony, Judge Clarke remarked, "It is not my fault if he has been vague."

   Mrs. Snyder testified that most of defendants' business is on weekends; "we very seldom have anybody during the week because people mostly come on weekends [***17]to get crabs. * * * they come in rowboats; lots of people from the neighborhood come and then we have a few cars come down".  They sell each week "I guess about fifty dozen"; they get seventy-five cents a dozen. Around Fourth of July we sell a lot of [fish], more than usual.  * * * we sell right smart of peelers."

   Assuming that in zoning, as in other fields of law, the principle de minimis has a place, we find no place for it in the instant case.  During the crabbing and fishing seasons defendants were engaged in commercial business to a substantial extent.  What the net proceeds were, whether or not they considered the business a success, is not shown and is not material.

   In a careful, well-reasoned opinion, based largely on analogy to Osborne v. Talbot, 197 Md. 105, 78 A. 2d 205, Judge Clark held that defendants' activities constitute a "home occupation" permitted by the zoning regulations. To a large extent we concur in his reasoning, but we [*561] reach a different conclusion, (a) by putting more stress on the difference between Osborne v. Talbot and the instant case, and (b) by construing "home occupation" less broadly.  Osborne v. Talbot involved[***18] the effect of a restrictive covenant in a 1910 deed upon the use by a chiropractor of his residence.  In the professional aspect, a chiropractor is not a physician (Crider v. Cullen, 191 Md. 723, 63 A. 2d 618), but in the real estate aspect the positions of a chiropractor and a physician are analogous.  From time immemorial, and to a considerable extent today, the profession of a physician, especially of a "country doctor", has been a typical illustration of a "home occupation". Unless this were true, a community such as Magothy Beach could never have a resident practising physician.  In this respect we see no near analogy between a physician and a "waterman".  Furthermore, in suggesting that the scope of "residence purposes only" may be a matter of degree, we were referring not to the monetary volume of a business done but to the degree of changes in the structure or use of the building.

   On the meaning of "home occupation" Judge Clark said, "A 'home occupation', however, must be something which is customarily incident to the use of the premises as a dwelling. In some communities, the sale of crabs, fish, bait, and the taking out of fishing parties, would not come within this[***19] category, but, in a community where there are hundreds of houses fronting on the water, and many men doing exactly what Mr. Snyder is doing, and from their homes, I think what he is doing must be denominated as a 'home occupation'. Drive around any waterfront in Anne Arundel County, and you will see numerous signs up on properties which are primarily residential, indicating that fish, crabs, bait and so forth are for sale there.  And, if the driver will go one step further, and investigate, he will find, in most instances, that a waterman lives in the house in question, a waterman who makes his living catching fish, crabs, oysters and so forth, selling most of his catch on the wholesale market, but a small part thereof at [*562] his home.  Mr. Snyder is in the business on a rather small scale, and, at this time, I cannot see that his activities are so extensive that they can be said to 'usurp' his home's 'primary use as a dwelling'.  If he should increase his activities to any considerable extent, we might have a different story.  It is all a question of degree."

   We think this construction is too broad.  The names Billingsgate and (in its collateral connotations) Marsh Market[***20] Place are reminders that the sale of fish has no necessary relation to "home" life in a "cottage residence" community.  The activities, lawful or unlawful, of "watermen" in "Our Mutual Friend" were not "home occupations" incidental to the use of their "homes", as such, at or near the river. The occupation of a "waterman", per se, is no more a "home occupation" than the occupation of a farmer or a garage keeper -- or, formerly, "the village blacksmith".  If defendants' occupations were in the past not uncommon in Anne Arundel [**618] County, the question remains whether they now are permitted in a "cottage residential" zone. We think not.
 
   If an owner wishes to use her residence as a beauty parlor (Dobres v. Schwartzman, 191 Md. 19, 59 A. 2d 684) or a funeral parlor (Ullrich v. State, 186 Md. 353, 46 A. 2d 637, 165 A. L. R. 1107) the properties so used are none the less a beauty parlor or a funeral parlor, because also used as a residence, and within express prohibition of such uses in a residential district.  In Dobres v. Schwartzman we held it unnecessary to decide whether a beauty parlor is a home occupation permitted by one section of the zoning ordinance in [***21]view of express prohibition of beauty parlors by another section.  In Piper v. Moore, 163 Kans. 565, 183 P. 2d 965, a use in question was held not to be permitted as a "home occupation" and also to be prohibited as a "public garage", as defined for zoning purposes.  It has been held that a dancing school, operated on a large scale, after structural changes in the building (State ex rel. [*563] Kaegel v. Holekamp, Mo. App., 151 S. W. 2d 685, quoted by Judge Clark) or a restaurant, which apparently had a cook of some local reputation in the vicinity, who was a sister of the owner and lived in the house, (King County v. Lunn, 32 Wash. 2d 116, 200 P. 2d 981) or a real estate brokerage office (Village of Riverside v. Kuhne, 335 Ill. App. 547, 82 N. E. 2d 500) was not a "home occupation".  In construing "home occupation" we see no difference, in principle, between a general prohibition of commercial uses and a specific prohibition of a beauty parlor, a funeral parlor, or a "public garage". 

   The proviso in the regulation relating to "home occupation" does not broaden but narrows the definition of "home occupation".  It does not include as a "home occupation" any commercial[***22] enterprise which can be conducted on a lot 565 feet deep without "usurping" the primary use of the dwelling. If it could be so construed, the residential character of a "cottage residence" district would have little meaning or legal protection.

   Decree reversed with costs, and cause remanded for passage of a decree in accordance with this opinion. 

CORBIN v. JONES 
No. 124, October Term, 1951
 
Court of Appeals of Maryland
 
199 Md. 527; 86 A.2d 911; 1952 Md. LEXIS 284

 March  12, 1952, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Appeal dismissed, with costs.

CORE TERMS:  motion to strike, final order, order striking, appeal lies, satisfying, order settling, final disposition, attachment, decree, revisory power, satisfaction

COUNSEL: Albert J. Goodman, with whom were Ginsberg & Ginsberg, on the brief, for appellant.

   No brief and no appearance for[***2] appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson and Markell, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*527] [**912] This is an appeal, by appellant, plaintiff below, from an order, granted on September 18, 1951, by the trial [*528] judge, striking out an order given by the plaintiff on August 1, 1951, settling and satisfying the short note case in an attachment proceeding.  The motion to strike out the order settling and satisfying the case, was made and filed by defendant, appellee, on August 29, 1951 and stated that the claim was paid "inadvertently".  The appellee has filed herein a motion to dismiss the appeal under Rule 47 of this Court.

   In the case of Legum v. Farmers National Bank of Annapolis, 180 Md. 356, 24 A. 2d 281, where a judgment debtor appealed from an order of court striking out an order of satisfaction of a judgment against him, this Court said: "In a recent case (Silverberg v. Dearholt, 180 Md. 38, 22 A. 2d 588) this court quoted with approval the statement of this rule in Poe's Practice, Vol. II (Tiffany Edition, Par. 389), to the effect that where the motion to strike is made within [***3] the term and is granted, no appeal lies at the instance of the plaintiff because such order is not a final disposition of the case, but leaves it on the docket to be legally heard in due course, and therefore no substantial injury is done to the plaintiff." Likewise, in the instant case, the order striking out the order to settle and satisfy the case is not a final disposition of the short note case and the attachment, but leaves it on the docket to be legally heard in due course.

   Assuming, without deciding, that the order from which the appeal here is taken is a final order, Rule VI (1) Revisory Power of Courts over Final Judgments, Orders and Decrees.) provides in part: "For a period of thirty (30) days after the entry of any judgment, order or decree, final in its nature, or thereafter pursuant to motion filed within such period, the Court shall have the same revisory power and control over such judgment, order or decree as it had during the term at which it was entered under the practice heretofore existing." The order to satisfy in the instant case was given on August 1, 1951. The motion to strike out that order was filed [*529] on August 29, 1951, and therefore comes within[***4] the thirty day period aforesaid.

   Poe's Practice, Vol. II, Par. 389, supra, which sets out the "practice heretofore existing" as to motions to strike out judgments, before the passage of Rule VI (1), supra, provides: "Where the motion to strike out is made during the same term at which the judgment is rendered, * * * the application is within the sound discretion of the court: and when it is granted and the judgment is stricken out, no appeal will lie at the instance of the plaintiff."

   If the order in the instant case, striking out the order settling and satisfying the case and from which the appeal is taken, is not a final order, of course no appeal lies to this Court.  If it is a final order, the motion to strike having been made within the thirty day period, it is not appealable under Rule VI (1), supra.  The appeal must therefore be dismissed.

   Appeal dismissed, with costs. 

MELVIN v. BOARD OF COUNTY COMMISSIONERS OF ANNE ARUNDELCOUNTY 
No. 166, October Term, 1951
 
Court of Appeals of Maryland
 
199 Md. 402; 86 A.2d 902; 1952 Md. LEXIS 267

 March  5, 1952, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court of  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  issuance, gift, appointment, borrow, general hospital, proposed action, net proceeds, appropriation, enlargements, membership, non-profit, non-stock, election, patients, decree

COUNSEL: Chipman W. Cunningham, with whom were McWilliams, Evans & Melvin on the brief, for the appellant.

   Noah A. Hillman, with whom was Marvin I. Anderson on the brief, for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson and Markell, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*403] [**902] This appeal is from a decree of the Circuit Court for Anne Arundel County dismissing a taxpayer's bill to enjoin the issuance and sale of $600,000 of county bonds, as authorized by Chapter 593, Acts of 1951.  It is contended that the proposed action is in violation of Section 54, Article III of the Maryland Constitution.

   The Act in question, among other things, authorized the County Commissioners to issue and sell its bonds in the above amount and pay the net proceeds to "the Board of Managers of Annapolis Emergency Hospital Association, a Maryland corporation [**903] operating Anne Arundel General Hospital, [***3] at Annapolis * * * to be used and applied by said corporation exclusively for the purpose of defraying in part the cost of financing the erection of an addition and alterations, improvements and enlargements to said Hospital * * *." The Act contained a proviso that "Annapolis Emergency Hospital Association shall, at a special or regular meeting held before the issuance of said bonds, have amended its By-laws so as to provide for the appointment by the Board of County Commissioners of Anne Arundel County of two of its members to the Board of Managers of said Association, said appointments to run concurrently with the terms of office of said appointed Commissioners, provided, further, that the right of appointment of said two members shall continue for as long as any bonds [*404] of this issue shall be outstanding." The Act was passed as an emergency measure, and, by resolution, the Board of County Commissioners proposed to immediately arrange for the issuance and sale of the bonds.

   It is admitted that the Hospital Association was incorporated in 1902.  It is a non-stock, non-profit organization, and membership in it is open to the general public; anyone paying a membership fee[***4] of one dollar a year becomes a member of the Association with the right to vote at each annual meeting, held in November, for fifteen of the sixteen members of the Board of Managers, who serve without compensation.  Since its creation it has received annual appropriations from the State and County.  All of the land and improvements are owned by the Annapolis Emergency Hospital Association.  See Chapter 31, Acts of 1947 (Extraordinary Session).  Prior to that date the title to the land, or a part of it, was in the State.  The President of the Board of Managers testified that in 1949 some $680,000 was pledged through a public campaign for funds, but the amount was insufficient for necessary enlargements and improvements.  Other funds, made available by the federal government, were drastically reduced.  The hospital is the only general hospital operating in Anne Arundel County; it cares for medically indigent and welfare patients and receives State aid for that purpose.  Other income is received from endowment funds, patients, the County, and the City of Annapolis.

   Section 54, Article III of the Maryland Constitution provides: "No County of this State shall contract any debt, or obligation, [***5] in the construction of any Railroad, Canal, or other Work of Internal Improvement nor give, or loan its credit to or in aid of any association, or corporation, unless authorized by an Act of the General Assembly, which shall be published for two months before the next election for members of the House of Delegates in the newspapers published in such County, and shall also be approved by a majority of all the [*405] members elected to each House of the General Assembly, at its next session after said election."

   It is not suggested that the construction or operation of a general hospital is a "Work of Internal Improvement".  Cf. Bonsal v. Yellott, 100 Md. 481, 60 A. 593, 69 L. R. A. 914; Welch v. Coglan, 126 Md. 1, 94 A. 384; and Baltimore & Drum Point Railroad Co. v. Pumphrey, 74 Md. 86, 21 A. 559. Nor is it suggested that the private character of the corporation would defeat an appropriation of public funds.  Finan v. Cumberland, 154 Md. 563, 567, 141 A. 269. The contention is that the transaction is, in essence, a gift or loan of the County's credit to the corporation, which cannot be done except after compliance with the conditions laid down in Section 54. [***6]

   We think this argument is foreclosed by our decision in Johns Hopkins University v. Williams, 199 Md. 382, 86 A. 2d 892, just decided.  Construing the similar language of Section 34, Article III of the Constitution, we said (p. 401): "If the State does not have this amount available, but borrows it and then gives the cash to the University, which is what it is attempting to do, it is not giving or loaning its credit to, or in aid of, the University -- it is using its credit with banking institutions to borrow the money, [**904] and it is giving the University its cash." The Pumphrey case was discussed at length and distinguished.  In the instant case we hold that the proposed action of the Board of County Commissioners does not violate Section 54.

   Decree affirmed, with costs. 

BURROUGHS et ux. v. MILLIGAN et ux. 
No. 65, October Term, 1951
 
Court of Appeals of Maryland
 
199 Md. 78; 85 A.2d 775; 1952 Md. LEXIS 231; 28 A.L.R.2d 243

 January  11, 1952, Decided

   SUBSEQUENT HISTORY: [***1]

   Rehearing Denied February 7, 1952.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree reversed with costs and bill of complaint dismissed.

CORE TERMS:  right of way, deed, feet, width, plat, farm, public road, reservation, grantor, chancellor, peninsula, reserved, one-way, feet wide, definite, way of necessity, marked, conveyed, wilderness, alley, property conveyed, easements, foot, relocated, grantee, stone, gate, deed dated, constructed, twenty-five

COUNSEL: William J. McWilliams, with whom were[***5] McWilliams, Evans & Melvin on the brief, for the appellants.

   William J. Boehm for the appellees.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson and Markell, JJ. Marbury, C. J., delivered the opinion of the Court.  Markell, J., dissents.

OPINIONBY: MARBURY

OPINION: [*80] [**777] The question in this case is whether or not the appellees are entitled to a right of way 20 feet wide across the property of the appellants.  The chancellor held that they are, and required the appellants to remove all stone walls, stone curbs, gate posts and other obstructions [*81] placed by them in that right of way. From the decree thus ordering, the appellants, defendants below, have appealed.

   The case was heard below on September 22, 1949.  After testimony was taken, briefs were submitted, and, on October 19, 1949, the chancellor and counsel made a personal inspection of the property.  On May 15, 1951, one year and eight months later, the opinion was filed.  Meanwhile, the court stenographer, who took down the testimony, died on March 23, 1950, and her notes on the testimony cannot be located.  Under these circumstances, we have no testimony in the record and must decide the[***6] case, therefore, upon the statements of fact contained in the court's opinion, and any other facts we may find are agreed upon by the parties.  The statement of the case in the opinion of the court is as follows:

   "Joseph E. Hall owned a farm situate and lying near Herald Harbor.  Included therein was a long, narrow peninsula extending into the Severn River.  This peninsula became known as 'Long Point', and I will hereinafter sometimes call it that.  It was about three thousand feet long, and, for the most part, only about three hundred feet wide, was bounded on the northeast by Old Place Creek and Round Bay, and on the southwest by Little Round Bay; and was entirely in woodland.  A farm road ran from the public road at near Herald Harbor in a general southeasterly direction through about the middle of this peninsula to near the tip, or southeast end, thereof.  * * *

   "Mr. Hall decided to sell Long Point in lots for a waterfront development. He first sold about four acres at the extreme tip or southeast end thereof.  The late L. Dorsey Gassaway purchased this lot; and it is marked 'Gassaway' on the Howard plat. The deed for this lot seems to have been dated August 16, 1915. The[***7] record is silent on whether Mr. Gassaway was specifically granted a right-of-way through that part of Long Point which lies to the northwest [*82]of said lot, but, as said lot was at least a half mile from any public road, he would have been entitled to a way of necessity whether he was specifically granted one or not.  The next lot sold was one acre conveyed to George Thompson Williams by deed dated September 24, 1919.  This lot is designated 'Williams' on the Howard plat, and lies about four hundred feet northwest of the Gassaway lot, has an average width of some one hundred sixty to one hundred sixty-five feet, and extends across the entire peninsula, that is to say, from the waters of Little Round Bay to the waters of Round Bay.  I will hereinafter sometimes refer to this lot as the 'Williams lot'.  It is obvious that, if the owners of this lot were to get out to the public road, they had to have a right-of-way over that part of Long Point lying between said lot and said public road; and that, if Mr. Hall, and the purchasers of his remaining land lying to the southeast of said Williams lot, were to get out to said public road, a right-of-way thereover had to be reserved. [***8] They attempted to take care of both of these situations by inserting in the deed from Hall to Williams * * * a paragraph in the words and figures following, that is to say:

   "'Together with all the buildings and improvements thereon, and all the rights, roads, ways, waters, privileges and appurtenances thereto belonging or in anywise appertaining, and especially with the right of way over the existing farm roads of the parties of the first part from the public road leading to the property of the parties of the first part unto and out of the property hereby conveyed for the purposes of ingress and egress to and from the same reserving to the grantors a right of way over the property hereby conveyed by the existing road.'

   "The next step in the panorama of events was several years later when Mr. Hall had Long Point surveyed by Mr. Howard, and the plat * * * made and recorded; [**778] and proceeded to sell lots with [*83] reference thereto.  This plat, in addition to the Gassaway and Wlliams lots, shows a lot marked 'Smallwood', a lot marked 'Judge', another marked 'Ramsey', and a road, twenty feet wide, laid out from the extreme northwest, or land, end of the peninsula to the[***9] Gassaway lot at its southeast end.  The plaintiffs own a lot carved out of the unmarked lot lying southeast of the lot marked 'Smallwood'.  They acquired this lot by deed dated June 11, 1946.  The defendants own three lots.  First, the lot conveyed by Hall to Williams, as aforesaid, and by Mrs. Williams, the widow and devisee of Mr. Williams, to Mr. Burroughs by deed dated November 15, 1937.  Second, a lot lying northwest of said Williams lot and south of said road, designated by the number '69' on the revised plat of a part of said Long Point made by Edward Hall, Jr., January, 1929, and conveyed to Mr. and Mrs. Burroughs by deed dated March 11, 1946. Third, the unmarked lot shown on said revised plat lying immediately between said lot No. 69 and said Williams lot and conveyed to Mr. and Mrs. Burroughs by deed dated March 6, 1946.

   "The defendants do not deny that the plaintiffs have a right-of-way over their lots.  The dispute is over the width thereof, where the road passes through the Williams lot.  While I understand that the plaintiffs have encroached on the road where it passes along the north side of the second and third lots acquired by them as aforesaid, I do not understand[***10] that I am asked to restrain any encroachment at that place, or at those places.  I am, however, asked to restrain the encroachment alleged to have been made by the defendants on that part of the road which lies within the lines of the Williams lot.  The plaintiffs insist that they are entitled to have the road kept open for a width of twenty feet -- the defendants say that eight or nine feet is wide enough.  The determination of this question, as [*84] heretofore indicated, involves the construction of the deed from Hall to Williams."

   We have, therefore, the appellants succeeding to all of the rights of Williams, and we have the appellees succeeding to all the rights of Hall. Stevens v. Powell, 152 Md. 604, 137 A. 392; Meade v. Denninstone, 173 Md. 295, 196 A. 330, 114 A. L. R. 1227; Greenwalt v. McCardell, 178 Md. 132, 12 A. 2d 522. The appellees have no more and no less rights than Hall had after the execution of his deed to Williams.  He granted a right of way over his "existing farm roads" in order to permit Williams to have a right of ingress and egress to the public road, and he reserved a right of way over the property conveyed "by the existing[***11] road".  It is the reserved road with which we are concered here.  The granted road was laid out by the J. Spence Howard plat, dated May, 1922, a part of the record of this case.  That was nearly three years after the Williams deed. On that plat, from which Hall sold lots, there appears to be a 20-foot road running all the way through the sub-division.  This may be a dedication by Hall which he and his successors in title are unable to dispute. It may be an interpretation by Hall of the "existing farm roads" over which he granted Williams a right of way to the public road, but it cannot be anything more (if it is that) than a one-sided interpretation by Hall of the right he reserved through the Williams lot.  Williams had acquired his rights by the deed of September, 1919.  He had accepted his lot subject to a reserved right of way over the existing road.  What that existing road was at that time is a question of fact.  Hall could not enlarge it three years later by platting a 20-foot right of way across Williams' land, unless Williams consented, Greenwalt v. McCardell, supra, Sibbel v. Fitch, 182 Md. 323, 34 A. 2d 773, and there is no suggestion or evidence that any such[***12] consent was given.  The question is, therefore, not the question of a way of necessity, which is a matter of implication, but the question of a definite reserved way, which is a matter of contract.

   [*85] Such a reservation is defined as "a clause of a deed whereby the * * * grantor doth reserve some new thing to himself out of that which he granted before." Sheppard's Touchstone, 80.  Coke's Commentary Upon Littleton, 47a. Schaidt v. Blaul, 66 Md. 141, 145-146, 6 A. 669; Herbert v. [**779] Pue, 72 Md. 307, 311, 20 A. 182; Dawson v. Western Maryland R. Co., 107 Md. 70, 91, 68 A. 301, 14 L. R. A., N. S., 809.  What did Hall carve out of the land he granted to Williams?  It was not a right of way generally across the property conveyed. It was not a right of way of a specified width, except in so far as the phrase used showed what width might be already established.  It was a right of way by the existing road, and this word "existing" might have been an important qualification.  The chancellor says the Williams lot has an average width of 160 to 165 feet. The present road is in the narrow part of this lot at the north, and the Pantaleo plat of the[***13] appellants' property, filed as part of the record, shows that the distance from the steps of appellant's porch to the edge of this road as it now exists is 20 feet. If the present road was the road existing at the date of the deed, its width might be important in view of the topograph and of the location of the house.  However this may have been, and whatever may have been the reasons of the parties, the fact is that all that Hall reserved was a right of way over the road existing at the time the deed was executed.

   In the bill of complaint filed by the appellees, it is stated that prior to the Howard survey from the year 1910 to the year 1922, there existed a farm road, referred to in the Hall-Williams deed, varying in width from 15 to 25 feet, and said road continued in a straight course along the ridge of the development, bisecting the Williams property from the western side to the eastern side at its highest elevation; that during the year 1921-1922, the existing farm road was relocated as shown by the Howard plat, and that a house was thereafter constructed on the Williams property upon the bed of the farm road as it theretofore existed, and that after [*86] its relocation, [***14]the width of the road was 20 feet and continued in this width until 1947.  It was also alleged that this road was used without any interruption until June, 1947, at which time the appellants erected a stone and rough rock wall upon the northern side of the 20-foot relocated right of way, reducing it six or seven feet. The answer says that the road is not now, nor has it ever been in any place as wide as 20 feet, and where it runs through the appellants' property, it does not now exceed, nor has it at any time in the past ever exceeded, eight or nine feet. The appellants admit that there existed a farm road, but deny it was ever as wide as 15 feet. They deny it ran through the Williams property in the manner alleged in the bill, and deny that it was ever relocated, and say that the road now running through the property is the original and only road, that it has never been relocated, that it has never been any wider than eight or nine feet, and, in 1919, was not even that wide.

   It is obvious from the bill and answer that there is a very definite question of fact at issue between the parties.  The opinion of the chancellor gives us little help on this point.  He states that at the[***15] date of the deed, the land was nothing but a piece of woodland, and he assumes that the road leading into it was no doubt poor, narrow and in bad repair, but he does not find this as a fact, nor does he find as a fact that it was a one-way, single track road.  He reasons that there must have been some place to pass, and he says that he cannot visualize the grantor and the grantee intending to establish a road so narrow that one motor vehicle could not pass another without difficulty.  He then states at some length the reasons why he thinks that would not be reasonable, and holds that the right of the users of the right of way to pass other vehicles is a reasonable right, "that the plaintiffs are entitled to it as a matter of right rather than as a matter of grace." In all of the long discussion which we find in the opinion, however, there is no statement whatever what was the [*87] evidence with respect to the original width of the road, or its relocation, and we are left entirely in the dark on these facts.  Nor does the chancellor indicate that he makes any finding whatever as to them.  His conclusion is based upon the unreasonableness of the contention that there [***16]existed only a one way road at the date of the deed. He does not find that there was a wide road there, and, in so far as we can judge from the opinion, there must have been testimony that there was only a narrow road there. This testimony he seems to reject because [**780] he does not believe it to be reasonable.  But the chancellor's views on what was reasonable and what words the parties to the deed might have inserted in that instrument had they been foresighted, are not conclusions of fact.

   The burden of proof was upon the complainants to established their case, which, as we have shown, is based upon the fact that there was originally a fifteen to twenty-five foot road which had been relocated, and that the present road was originally 20 feet wide until the appellants reduced it by six or seven feet. There is nothing in the record before us to show that they proved any of this, and, therefore, there is nothing in the record to show that they are entitled to an injunction against the appellants.  It is unfortunate that the testimony has been lost and is not before us.

   The appellants in their brief state that there was uncontradicted testimony to the effect that the position[***17] of the gate posts which were at the entrance to the Williams property from the west, had been unchanged for nearly thirty years.  They also state that it is undisputed that the road, where it passes through appellants' property, has never at any time exceeded nine or ten feet in width, that it is now nine or ten feet in width, and it has never at any time during the past thirty years been any wider, that the entrance to appellants' property is marked by posts 11 feet apart, and they have never been further apart.  They say that the easterly side of the road is marked by two utility [*88] poles and a 26-inch oak tree.  They also state that it is undisputed that during the thirty years no complaint was ever made to Williams or the appellants by Hall or any of his grantees. The Pantaleo plat shows the present width of the road is 11 feet between the posts, and then at various points, 9 feet 10 inches, 9 feet 6 inches, 9 feet 8 inches, 9 feet 5 inches, and then 11 feet. It also shows the location of the two Gas & Electric Company Poles, and an oak tree, 26 inches in diameter on the north edge of the present road.  To this extent, the statements made by the appellants are substantiated [***18]by evidence, but the other statements are not, and the appellees, so far from agreeing to them, have filed a motion that the appeal be dismissed because there is nothing in the record to substantiate these statements, and without these facts, this court cannot find anything upon which to base its opinion.  But the appellants have brought to this court all they have been able to salvage from the situation caused by the death of the stenographer long before the opinion was filed, and before it became apparent that they would need to have the testimony transcribed.  It is not their fault that they have no better record, and they should not be penalized by having their appeal dismissed.

   To sum up the situation, we have definite evidence of the width of the present road on the Pantaleo plat. We have the facts stated in the opinion that at the date of the deed, the tract was entirely woodland and that a farm road ran through the middle of the peninsula. We have no facts to justify the conclusion that in referring to the existing road, the parties to the deed referred to more than this farm road through the woods, and we can certainly take judicial notice of the fact, which is of common[***19] knowledge, that woods roads are not 20 feet wide. The chancellor said that it was possible that when the road was used only for hauling out a few loads of wood a year, it was little more than two wheel tracks.  Under these circumstances, the facts do not justify the chancellor's decree.  It is apparent [*89] from his discussion that he did not find there had been a 20-foot original road, or an original road of 15 to 25 feet, as alleged in the bill, or an original road of any other definite width, or of different location.  Had he found the existence of such a road, undoubtedly he would have declared that to be the correct road, and he would not have been put to the necessity of discussing what might or might not have been reasonably in existence at the time.  We conclude, therefore, that he did not find any evidence of such a road, and that his decree is based upon a theory of reasonableness which may be applicable to ways of necessity, see Tong v. Feldman, 152 Md. 398, 136 A. 822, 51 A. L. R. 1291, and to general granted rights of way without [**781] any definite location, but which has no place in a situation where the parties have contracted with respect to a definite [***20]right of way, namely, an existing road.

   Such a situation was recently before this court in the case of Feldstein v. Sagall, 198 Md. 285, 296, 81 A. 2d 610, 616. In that case, there was a definite agreement for a ten-foot alley between a fifteen-foot alley and a street.  Part of the ten-foot alley had never been used at its true location, but considerable use had been made of part of it, and it was contended that it had been widened by prescription to 23 or 24 feet. We denied this claim, saying: "A right of way of prescribed width does not grow with the size of trucks and other automobiles. If tautology could clarify the plain words 'ten foot alley', it is at least obvious that rights in a ten foot alley do not include use of automobiles too large for a ten foot alley." It is just as clear in the case before us that the right to use an existing road, which is not shown to have been any wider than the ordinary farm road through the woods, cannot grow into a twenty-foot right of way by increased traffic to later constructed houses, and the changing of a piece of woodland into a subdivision.  We are dealing with rights, and not questions of desirability, and we cannot give the appellees[***21] [*90] more than they are legally entitled to because it would be convenient for them to have it.

   The appellee relies upon the case of Palmer v. Newman, 91 W. Va. 13, 112 S. E. 194, 195, but we do not think this helps his contention.  In that case, there was a grant of an outlet from the 41.4 acres conveyed to the public road, "it being the same road now leading from the public road to this tract of land". The main contention was about gates, but the plaintiff asserted a right to a passage of 16 feet. The court said: "It is a well settled law of easements that, where there is no stated width in the instrument creating or reserving a right of way, a suitable and convenient way is meant which will be determined by its sufficiency to afford ingress and egress to those entitled to use it; and such sufficiency will depend upon the purposes of the grant or reservation, and the circumstances of each case." (Emphasis supplied.) The court then went on to find the answer to the question what was the width of the road at the time of the conveyance, and found no evidence of uniformity of width, saying: "We can only determine the location and width of this old road at the time[***22] of the grant, by the evidence of its actual user as marked on the land by the vehicles that passed over it." In some places the road had been narrow and in some places it had been widened, and at one entrance there had been only one gate for seven years, without murmur or complaint.  The court said: "The land of plaintiff is hilly and could be used only for grazing and farming, and such use was contemplated when the deed was made and the right of way given." There formerly had been an oil operation on the property.  A wide opening of 20 feet, with double gates, had been made for the purpose of hauling long timbers and piping to the oil well then being constructed on the back land.  The court held that it was not intended that the wide opening should be thereafter maintained, and that it had not been so construed, since it had been restricted.  [*91] The court in that case left the road as it was and did not extend it.

   In a later West Virginia case, Rhodes Cemetery Association v. Miller, 122 W. Va. 139, 7 S. E. 2d 659, also relied on by the appellee, there was a right of way given without any designation as to width. The trial chancellor fixed the width at 16 1/2 feet, and[***23] the Supreme Court of Appeals said this was in his sound discretion to determine what would be a reasonable width. The Massachusetts cases cited by the appellee, Crosier v. Shack, 213 Mass. 253, 100 N. E. 607, L. R. A. 1918 A. 260, and Lipsky v. Heller, 199 Mass. 310, 85 N. E. 453, are no more in point than the West Virginia cases, and do not support the contention that reference to a road fixes the location and not the width.

   In a case decided by the Supreme Court of Appeals of Virginia in 1936 Good v. Petticrew, 165 Va. 526, 183 S. E. 217, 218, 219, an agreement had been made in 1924 for the privilege of using "the road and bridge * * * paralleling the division line.  . . .".  The court said: "The evidence [**782] shows that the road was laid out and constructed * * * before the contract was executed, and at that time it consisted of a narrow driveway * * *", and, after discussing the evidence, and referring to the West Virginia case of Palmer v. Newman, supra : "We are, therefore, of opinion that the lower court was plainly right in holding that the complainant is only entitled to a one-way road over the land of respondents." (Emphasis supplied.)

   We[***24] have no quarrel with the contention that where a right of way is given without any definite designation, what is meant is one that is reasonable under the circumstances of the case.  This is the general law, and the law of this State, but it is not applicable to the situation before us.

   Decree reversed with costs and bill of complaint dismissed.

DISSENTBY: MARKELL

DISSENT: [*92] Markell, J., delivered the following dissenting opinion.

   On both sides this case, I suspect, may be much ado about nothing between unneighborly neighbors.  If the decision were based on a narrow construction of the reservation in the 1919 deed, in special view of the alleged cramped size and shape of the Williams lot, I should doubt the result but refrain from a solitary dissent.  Such a decision would be not altogether unlike the decision in Good v. Petticrew, 165 Va. 526, 183 S. E. 217. But the opinion in the instant case proceeds, with relentless logic, from an assumed premise to a conclusion contained in the premise.  The premise and the conclusion, I think, are unsound and may create a bad precedent.

   The assumed premise is this: In a deed of land in a wilderness, obviously intended to make a beginning[***25] of converting the wilderness into a place of civilized habitation, and not to perpetuate the wilderness or wilderness travel, a reservation of "a right of way * * * by the existing road" and a grant of a "right of way over the existing farm roads" -- are (a) more restricted than would be a way of necessity and (b) restricted to a one-way road indicated by existing wagon ruts.  A reservation ordinarily may be more strictly construed than a grant.  However, when a grant and a reservation are created in the same deed, in the same clause, in the same words, for the same purpose, manifestly they must receive the same construction.  The majority opinion in Condry v. Laurie, 184 Md. 317, 41 A. 2d 66 (as is indicated by the strong dissenting opinion to the contrary) seems to hold that a way of necessity is a creature of substantive law, not wholly dependent upon the intention of the parties.  No case has been cited in which a way of necessity has been restricted to a one way road.  In the instant case the majority opinion in Condry v. Laurie seems to be abandoned in favor of the dissenting opinion.  But for the majority opinion in that case I should think that property owners[***26] might by express provision negative [*93] a way of necessity altogether or restrict it as they see fit, e. g., to a right of way eight feet wide, or to a right of way by wheelbarrow only, or to a right of way of the width of an existing wilderness road or wagon ruts.  The words of the 1919 deed, however, are not words which would be used to express less than nothing -- to cut down what the law itself would imply in the absence of anything expressed.

   To avoid such a narrow construction of this deed it is not necessary to assume that the parties in 1919 envisaged such a Paradise as has been created in much of Anne Arundel County in the last twenty-five years.  But in 1919, as now, a one-way road was a temporary primitive convenience -- or necessity.  Nor need we assume that the parties contemplated use of the largest trucks and trailers of which we have acquired judicial knowledge through negligence cases.  Any deed that looked beyond the wilderness state necessarily looked beyond a one-way road.

   This court apparently does not differ with Judge Clark's view that the Gassaway deed in 1915, without express grant of a right of way, granted by implication a way of necessity. Such[***27] a way should not be limited to a one-way road.  The result would be that any present owner of part of the Gassaway tract could prevent obstruction of a two-way road, which the court now holds [**783] the present plaintiffs cannot prevent.  Such a result seems not only unreasonable but absurd.  The right of way through the Williams property would be a two-way road for the Gassaway grantees and a one-way road for everyone else on the peninsula. The question is not whether the reservation covered a "reasonable" way or the "existing" way, but what is a reasonable construction in all the circumstances of "existing" way.  Is it restricted to a one-way road?  I think not.

   I cannot brush aside the Howard plat, recorded in 1922, to which Judge Clark ascribes considerable significance.  Of course, a grantor cannot by a declaration subsequent to his grant, without the consent of his [*94] grantee, narrow his grant or (what is the same thing) broaden a reservation in it.  But the Howard plat was more than an ex parte declaration.  The grant and the reservation in the 1919 deed created reciprocal rights in a road extending the entire length of the peninsula. Williams had the same[***28] interest, no more, no less, as Hall and Gassaway and future owners in establishing a uniform width of the road throughout its length.  None of them could have expected or intended to make the Williams property a bottle-neck, restricting all other owners to a one-way road through the Williams property but giving all owners, including Williams, a twenty foot road throughout the rest of the peninsula. I think the recording of the Howard plat in 1922 was an offer of mutual settlement of the location and width of the entire road.  If Williams, expressly or by acquiescence, accepted the Howard plat he was as much bound by it as if he had signed it.  I appreciate that in the absence of any testimony in the record we are somewhat embarrassed as to drawing inferences from conduct or silence for some twenty-five years after the recording of the Howard plat. It cannot, however, be inferred from mere lapse of time that the other owners acquiesced in making the Williams property such a bottle-neck in the peninsula road.  The belated building of a stone wall on the Williams property suggests the contrary, viz., that neighbors did not encroach on the Williams property through mere spite, but[***29] because now and then two vehicles must pass and cannot pass on a one-way road.

   "Stone walls do not a prison make" -- nor wagon ruts a road. 

HEATH v. STATE 
No. 21, October Term, 1951
 
Court of Appeals of Maryland
 
198 Md. 455; 85 A.2d 43; 1951 Md. LEXIS 345

 December  5, 1951, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court of  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  indictment, assault, misdemeanor, sentence, felony, Criminal Law, grand jury, assault and battery, intent to rape, correction, clerical error, criminal information, common law, invalid, setting forth, removal, battery, waived, sentence imposed, cruel and unusual punishment, constitutional right, convicted of assault, prosecuting witness, motion to strike, maximum penalty, accused person, grand juries, same manner, imprisonment, mandatory

COUNSEL: Samuel Schenker, with whom[***5] was Oswald C. Robinson on the brief, for the appellant.

   Kenneth C. Proctor, Assistant Attorney General, with whom were Hall Hammond, Attorney General, and James C. Morton, Jr., State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson and Markell, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*458] [**44] Gilbert Heath, the driver of an oil truck for the Capital Oil Company, was accused of assaulting, with intent to rape, a young married woman after he made a delivery of oil to her residence near Earleigh Heights, Anne Arundel County, on the afternoon of March 15, 1951.  On the following day, he was taken before a magistrate and held for action of the Grand Jury. On April 10, 1951 there was filed in the Circuit Court a paper signed by him and witnessed by his counsel, Oswald C. Robinson, entitled "waiver" but referred to in the body of the instrument as a "petition and suggestion".  The paper recited that "there are criminal charges pending against him in this County, in that he is accused of having committed the offense of committing assault with intent[***6] to commit rape" upon the prosecuting witness named [**45] therein; that the "charge is a felony"; "that he wishes to, and does hereby, waive his right to an indictment by the Grand Jury, and seeks an immediate trial, by the court sitting as a jury, without regard to the terms of court, upon a criminal information filed by the State's Attorney for said county, setting forth the charges against him." On the same day he filed another paper, similarly signed and witnessed, that "receipt is hereby acknowledged of a copy of the indictment or information filed against me in the above entitled case the seventh day of April, 1951." However the docket entries do not [*459]show that any papers were filed until April 10, 1951.  The information, filed April 10, 1951 by the State's Attorney, contained three counts, the first charging rape, the second, assault with intent to rape, and the third, assault and battery, in the customary forms used in indictments. The first and second counts each carried the maximum penalty of death.  Section 544, Article 27, Code of 1939 and Section 13, Article 27, Code (1947 Suppl.).  The third count, based on a common law offense, carried no prescribed maximum [***7]penalty.

   The docket entries show that the accused was arraigned on April 13, 1951, plead not guilty and elected trial by the court.  They show that on the same day he was tried, found not guilty on the first and second counts, guilty on the third count, and sentenced to five years imprisonment in the House of Correction. On April 20 the appearance of Samuel Schenker, as attorney for the traverser, was filed, together with an order for appeal to this court.  The docket entries record the entry of appearance but not the order for appeal.  On May 3 counsel for the defendant filed a motion to strike the judgment on the grounds (1) that there had been a general verdict of guilty entered on the indictment "although the defendant was found not guilty on the second count * * * and the State moved to quash the first count * * * and the defendant was found guilty on the third count i. e. assault and battery," and (2) "that this court tried the defendant in violation of the 5th amendment to the Constitution of the United States".  After hearing on this motion on May 4, the court passed an order dismissing the motion on the ground that the court had no jurisdiction to entertain it after the[***8] entry of the appeal on April 20.  Counsel have stipulated in this court that at the time of the hearing on the motion the defendant had not been committed in accordance with the sentence imposed on April 13, 1951.  It is conceded that the local term of court expired on April 13.

   The appellant contends that the court was in error in failing to strike the judgment, although he concedes that [*460] ordinarily the court's jurisdiction is ended after an appeal is filed.  Cf. Thompson v. State, 184 Md. 555, 556, 42 A. 2d 113; Dietrich v. Anderson, 185 Md. 103, 111, 43 A. 2d 186, and Collier v. Collier, 182 Md. 82, 32 A. 2d 649. He argues that the judgment was not final because it was based on an erroneous entry of the verdict as guilty on all counts, whereas the verdict was in fact guilty only on the third count.  The transcript of the docket entries does not show an erroneous entry of the verdict, but in view of the State's failure to deny the allegations made, we may perhaps assume that a correction was made subsequent to the order for appeal.  The appellant does not contend that the court lacked the power to correct an entry erroneously made by the clerk, to make it[***9] conform to the fact, even after the expiration of the term.  Cf. Crawford v. Richards, 193 Md. 236, 241, 66 A. 2d 483, 485. We are not here concerned with an alteration of sentence, as in State, ex rel. Czaplinski v. Warden, 196 Md. 654, 75 A. 2d 766 (Cf. Rule 10, Criminal Rules of Practice and Procedure), but merely with the correction of a clerical error. Such a correction could not affect the finality of the judgment and sentence based upon a verdict correctly rendered.  There would be no necessity to strike the judgment or enter a new one because of the clerical error in the entry of the verdict.  We may note, in passing, that if the judgment was not final and the appeal was premature, as contended, there has been no appeal following the correction. Thompson v. State, supra. Under the circumstances we think the ruling of the court [**46] on the motion to strike is not properly before us.

   The chief contention of the appellant is that the Circuit Court lacked jurisdiction to try him on information and hence the judgment appealed from was improperly entered.  He concedes that the point was not raised below prior to the entry of the judgment, but argues that a jurisdictional[***10] question may be raised at any stage of a case.  He contends that the court lacked jurisdiction because (1) the statute authorizing trial on information [*461] is unconstitutional, and (2) even if constitutional, he did not in terms consent to be tried for any offense except that of attempted rape, on which he was acquitted.

   The statute in question is section 637, Article 27 of the Code (1947 Suppl.), as enacted by Chapter 788 of the Acts of 1945.  As originally enacted by Chapter 562 of the Acts of 1933, a statewide act, it applied only to misdemeanors and cases where the accused desired to plead guilty.  There was a special proviso that it did not apply to misdemeanors which might be punishable by death, another, that it did not affect the jurisdiction of justices of the peace, and a third, that it did not affect the right of grand juries to indict.  As reenacted in 1945, the section did not apply to Baltimore City or Baltimore County, covered both misdemeanors and felonies, did not require that the accused plead guilty, and provided for a trial either before a jury or the court sitting without a jury.  The later act contained the same provisos as the earlier act with respect[***11] to magistrates and the right of grand juries to indict. The operative language reads as follows:

   "Whenever in any County of the State any person is charged with the commission of a misdemeanor or felony, such accused person, before indictment by the grand jury, shall have the right to file a Petition and Suggestion, signed by him in proper person, with the Clerk of the Circuit Court of said County, setting forth that there is a criminal charge pending against him, that it is a misdemeanor or felony as the case may be under the law of the State of Maryland, or a political sub-division thereof, and that he wishes to waive his right to an indictment by the grand jury and that he seeks an immediate trial by the petit jury, or the Court sitting as a jury, without regard to terms of Court, upon a criminal information filed by the State's Attorney of said County setting forth the charge or charges against him; which petition and suggestion may be signed by the person accused in his proper person or by counsel.  * * * Upon the filing of said Petition and Suggestion, the State's [*462] Attorney shall forthwith file a criminal Information against said accused person, which shall be sufficient[***12] in form if it clearly apprises the accused of the crime or crimes with which he is charged; the defendant shall then be arraigned and shall plead to the Information in the same manner as to an indictment and the case shall be set for trial, without regard to terms of Court, under the direction and control of the Court, within a reasonable time after the filing of said Information with the view of giving the accused his right to a speedy trial."

    Unquestionably the purpose of the statute, as expressed in the clause last quoted, was to enable an accused person to obtain a speedy trial, without waiting (sometimes in jail in default of bond) for action by grand juries which, in most of the counties of the state, meet only twice a year unless specially recalled, and without waiting for the convening of the court and jury at the beginning of each term.  It was designed to confer a benefit upon the accused, whereby he could force the State to prosecute its case forthwith.

   The appellant contends that Chapter 788 of the Acts of 1945 is invalid under Article III, Section 29 of the Maryland Constitution because of a misleading title.  The title states that the Code section is repealed and reenacted [***13]"providing that any person charged with a misdemeanor or felony may file a petition in Court, and the Court shall then require the State's Attorney to file Information * * *".  The body of the Act does not mention the Court but provides that "the State's Attorney shall forthwith file a criminal Information".  We think the difference between requiring the State's Attorney to act on [**47] his own initiative, rather than at the Court's direction, is too trivial a detail to invalidate the Act.  Indeed, it amounts to the same thing, for if the State's Attorney should neglect his positive duty to file an information, as stated in the body of the Act, the court would have the inherent power to direct him to comply.  Conversely, the duty imposed upon the Court in the title is mandatory [*463] and does not call for the exercise of any judicial discretion.

   The appellant contends that the Statute is ambiguous, and hence invalid, because Baltimore City and Baltimore County are excluded from the operation of Section 637 by both the title and the text of the Act of 1945, whereas they were both included in the prior enactment.  It is sufficient to observe that there is no ambiguity as[***14] to Anne Arundel County.  If and when the question arises in Baltimore City or Baltimore County it will be time enough to inquire whether the Act of 1933 is still in effect in those political subdivisions, whether the matter is covered by local law, or whether informations are completely barred.  Cf. Atkinson v. Sapperstein, 191 Md. 301, 309, 60 A. 2d 737. The appellant does not suggest that a statute of this kind must have a state-wide application, and we express no opinion on that point.

   The appellant also contends that Section 637 is invalid because it authorizes the trial of all felonies, including capital cases, upon information.  He argues that "presentments or indictments for offenses which are punishable by death" are placed in a special class by Article IV, Section 8 of the Maryland Constitution, which deals with suggestions of removal, and that in case of a trial upon information in a capital case a defendant would be precluded from obtaining a mandatory change of venue.  Here again, we think the construction of this Section of the Constitution is not before us in the instant case, where no suggestion of removal was filed, but on the contrary the accused affirmatively [***15]prayed an immediate trial in the Circuit Court for Anne Arundel County.  Hence we need not decide whether Section 8 of Article IV is broad enough to include informations as well as presentments or indictments. Nor need we consider whether an accused seeking trial upon information in a capital case, in reliance upon the statute, could within its terms include in his petition a suggestion for removal to another forum.  An accused may have a constitutional [*464]right of removal, where properly asserted; he has no constitutional right to trial upon information.

    No constitutional provision expressly guarantees a right to trial upon indictment in this State.  State, ex rel. Butler v. Warden, 195 Md. 713, 72 A. 2d 741. The Fifth Amendment to the Constitution of the United States does not in terms apply to the states, and the rights there conferred are not implicit in the concept of the Fourteenth Amendment.  Bute v. Illinois, 333 U.S. 640, 657, 68 S. Ct. 763, 92 L. Ed. 986. Article 21 of the Maryland Declaration of Rights, which refers to "Indictment, or Charge", contains no guarantee as to form, but confers the substantial right to be apprised of the charge on which the [***16]accused stands trial.  State v. Glenn, 54 Md. 572, 605. It is true that jury trial, according to the course of the common law (Article 5, Maryland Declaration of Rights), necessarily includes indictment by the Grand Jury, Callan v. State, 156 Md. 459, 144 A. 350; In re Report of Grand Jury, 152 Md. 616, 137 A. 370, but common law rights, unlike constitutional rights, are subject to change by the legislature.  Basta v. State, 133 Md. 568, 105 A. 773. Moreover, the right to indictment, like the right to jury trial itself, may be waived. Fisher v. Swenson, 192 Md. 717, 64 A. 2d 124, certiorari denied, 337 U.S. 933, 69 S. Ct. 1489, 93 L. Ed. 1740, citing Rose v. State, 177 Md. 577, 10 A. 2d 617; Callan v. State, supra; DeGolyer v. Commonwealth, 314 Mass. 626, 51 N. E. 2d 251; and Barkman v. Sanford, 5th Cir., 162 F. 2d 592, certiorari denied, 332 U.S. 816, 68 S. Ct. 155, 92 L. Ed. 393. In the last case it was held that even the constitutional right to indictment, conferred by the Fifth Amendment on persons accused in the Federal courts, could be waived.

   [**48] The appellant contends that he did not consent to be tried on any charge except that[***17] of attempted rape, and hence the trial on the other counts was not in conformity with the statute.  The statute could hardly be construed as conferring upon an accused the right to select the charges upon which he might be tried on information, or [*465] as requiring the State's Attorney to split the charges between indictment and information and proceed by information in respect to only part of the offenses charged, or to be charged. We think the language of Section 637, that the accused shall set forth in his petition "that there is a criminal charge pending against him", calls for a full and clear statement of his alleged offense in non-technical language.  When the State's Attorney frames in the information "the charge or charges", he may, in proper legal form, use as many counts as may be necessary or appropriate to cover the whole case against the accused, including lesser offenses properly within the scope of the "charge pending".  We reach this result by construction of the words of the Statute in the light of its remedial purpose as above stated.

   In the instant case, the complaint of the prosecuting witness was that the accused assaulted and beat her with intent to[***18] rape. She never alleged that he succeeded in his design, and there was no basis in fact for the charge of rape in the first count.  However, the defendant was acquitted on this count, following a motion to quash by the State, and the accused was not injured by trial on that count.  We need not consider, therefore, the contention that election by the accused to be tried for a specified offense by information could never justify trial for a more serious offense, of which he was not even accused, in the same manner. We think the third count, on which he was convicted, was fairly within the scope of the accusation and the consent filed. In any event, since it is clear on the record that the accused and his counsel received a copy of the information, either on April 7 or April 10, and prior to his arraignment on April 13, we think his failure to make any objection to the third count prior to the verdict and judgment, in itself, amounted to a waiver.  Cf. Conley v. Warden, 190 Md. 750, 59 A. 2d 684; Glickman v. State, 190 Md. 516, 526, 60 A. 2d 216; Rose v. State, supra; and Lenoir v. State, 197 Md. 495, 506, 80 A. 2d 3, 8. See also State v. Batson, 339 Mo. 298, 96[***19] S. W. 2d 384 [*466] (waiver by going to trial on an information improperly substituted for an indictment.) It is generally held that where information statutes require a preliminary examination, such examination is waived by pleading to the information.  See note 116 A. L. R. 550.

   We have dealt with all the points raised by the appellant, and it is therefore unnecessary to discuss the contention upon which they are predicated, that they could be raised on an issue of jurisdiction, despite the failure to raise them in the trial court, as required by Rule 9 of our Rules and Regulations Respecting Appeals.  We have said that "matters of jurisdiction are always before the court, and are exceptions to the general rule that we only consider what has been first passed upon below." Berlinsky v. Eisenberg, 190 Md. 636, 640, 59 A. 2d 327, 328. It by no means follows that the points here raised are truly jurisdictional, and we express no opinion on that point.

   The appellant makes two further contentions, that the verdict was clearly erroneous under the evidence, and that the sentence imposed a cruel and unusual punishment under Articles 16 and 25 of the Maryland Declaration of Rights. [***20]We think the evidence clearly supported the verdict.  The prosecuting witness testified that the accused, when he came in the house to obtain a check for the oil delivered, seized her around the neck, pushed her through the dining room into the living room and down on a sofa.  He pulled her hair, threatened to kill her if she did not stop screaming, and only left when she told him her husband was due home at any minute.  She had her eyes scraped, her neck and shoulders were sore, she had bruises on her body, and her scalp was tender.  The accused took the stand and admitted that he put his arm around her, that he had been drinking "but not heavy", [**49] and that he "intended to love her a little bit".

   We recently discussed the history and limited scope of the constitutional provisions as to cruel and unusual punishment in Delnegro v. State, 198 Md. 80, 81 A. 2d [*467] 241. In this State there is no statutory limitation upon the amount of punishment in cases of assault and battery, and there was no limitation at common law. Apple v. State, 190 Md. 661, 668, 59 A. 2d 509. Cf. Ison v. Commonwealth, 190 Ky. 376, 227 S. W. 480. In Rell v. State, 133 Me. 322, [***21] 9 A. 2d 129, 125 A. L. R. 602, the court said, in sustaining a sentence for assault of from two to four years, that a statute, prescribing a maximum penalty of five years, was merely declaratory of the common law. In 2 Bishop, Criminal Law (9th ed.) p. 32, it is said: "Still, from early times, when misdemeanors were punished by whatever fine or imprisonment the judge might deem it right to impose, it has been the judicial habit to look upon assaults as more or less aggravated by such attendant facts as appealed to the discretion for a heavy penalty.  * * * An assault is deemed to be more or less enormous according to the facts of the particular case." In the instant case we think the circumstances of the assault were such as to bring it within the discretion of the trial court and not to violate the constitutional provisions.

   Judgment affirmed, with costs. 

DONNELLY v. DONNELLY 
No. 10, October Term, 1951
 
Court of Appeals of Maryland
 
198 Md. 341; 84 A.2d 89; 1951 Md. LEXIS 328

 October  31, 1951, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree affirmed in part and reversed in part and case remanded for the passage of a decree in conformity with this opinion.  Costs to be paid by Henry Arthur Donnelly.

CORE TERMS:  marriage, married, dead, marry, woman, chancellor, tenant, nullity, husband and wife, supposed, decree, one-half, annulled, gift, grantee, acquire property, adjudged, tenancy, decreed, contributed, annulment, appointed, divorced, validly, prayed, divide, descriptive word, survivor, entireties, divorce proceeding

COUNSEL: R. Lewis Bainder for Henry[***4] Arthur Donnelly.

   John S. White and C. Orman Manahan for Elsie Virginia Donnelly.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Grason, Henderson and Markell, JJ.  Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*343] [**90] Henry Arthur Donnelly and Elsie Virginia Donnelly were married on March 8, 1935, at Martinsburg, West Virginia.  The marriage ceremony was conducted in a perfectly legal manner and they were supposedly validly married. Prior thereto Elsie was married to a man by the name of John Blankenship and had a son by him.  The Donnellys lived together as man and wife, continuously, for eleven years, when differences arose between them and they separated in 1946.

   On December 23, 1935, these parties executed an agreement with the Hanover Banking and Building Association of Baltimore City, a body corporate, whereby they agreed to purchase a tract of land in Anne Arundel County, containing about 27 1/2 acres, with improvements.

    Subsequent to the separation Donnelly instituted, in the Circuit Court for Howard County, a divorce proceeding in which he alleged that Elsie had abandoned and deserted him, and prayed for a divorce a vinculo [***5]  matrimonii.  At the trial of this divorce case Donnelly produced Blankenship, the former husband of Mrs. Donnelly, whereupon the chancellor in the divorce proceeding, on the "twenty-sixth day of January, 1949, * * * Adjudged, Ordered and Decreed that the marriage of the said Henry A. Donnelly to the said Elsie V. Donnelly at Martinsburg, West Virginia, on the eighth day of March, 1935, be, and the same is hereby, declared null and void".

   On May 2, 1949, Henry A. Donnelly filed, in the Circuit Court for Anne Arundel County, in Equity, a bill of complaint against Elsie Virginia Donnelly, wherein he prayed, among other things, that the agreement made on the 23rd day of December, 1935, for the sale by the said Building Association to Henry Arthur Donnelly [*344] and Elsie Virginia Donnelly, his wife, "be declared null and void and of no force and effect in law".

   An answer was filed, and on the same day the defendant in the original bill filed a cross bill wherein she prayed, among other things, "That a trustee or trustees may be appointed to make sale of the premises hereinbefore mentioned (the property covered by the agreement of sale aforesaid) and to divide the proceeds thereof[***6] among the parties entitled, according to their respective interests".  An answer was filed to the cross bill by Donnelly, and testimony taken before the chancellor, consisting of only two witnesses, namely Henry A. Donnelly and Elsie Virginia Donnelly, the parties to this case.

   On February 8, 1951, the chancellor dismissed the original bill and "* * * further Adjudged, Ordered and Decreed that [**91] the defendant and cross-plaintiff, Elsie V. Donnelly, be, and she is hereby declared to be entitled to an undivided one-half equitable interest as a tenant in common in the property mentioned and described in these proceedings", and further adjudged that the plaintiff pay the costs of the proceedings.  From this decree both parties to the proceedings appealed to this court.

   Donnelly contends that as Elsie V. Donnelly was not legally married to him on the 23rd day of December, 1935, when the Building Association agreed to sell to him and Elsie V. Donnelly, "his wife", the property aforesaid, that Elsie V. Donnelly has no interest in the property.  Elsie V. Donnelly contends that the chancellor was correct in decreeing that she was entitled to "an undivided one-half equitable interest[***7] as tenant in common" in said property, but she says that the chancellor should have gone further and appointed trustees for the sale of said property and for the division of the proceeds thereof between herself and Donnelly.

   Much testimony was devoted in establishing the financial condition of the parties both before and after the date of the contract in question, but the view we take of this case renders such testimony immaterial.

   [*345] Donnelly met Elsie Donnelly in Pittsburgh, Pennsylvania.  For a number of years before their marriage he went to to see her regularly.  He undoubtedly wanted to marry her, for they were married. His testimony is that she told him her husband was dead. He knew perfectly well that she thought she was a widow.  He said he thought it was unfair to ask her about her past life. It seems passing strange that Donnelly was so uninterested in the past life of the woman he wanted to marry that he did not inquire, or that they did not talk about her past life.  When asked several times about what she told him, he reiterated the answer that she told him "that her husband was dead".  He testified that he did not know Elsie Donnelly had a son by Blankenship. [***8]

   On the contrary Mrs. Donnelly testified that before their marriage they frequently discussed her marriage status.  She said she told him that she married Blankenship in 1918, and two years thereafter he deserted her; that six months after the desertion she heard from Blankenship, but thereafter she never heard of him, and she supposed he was dead. According to her testimony, Donnelly went with her to see the parents of Blankenship, in Baltimore City, and the mother of Blankenship told her, in Donnelly's presence, that her son was dead and that he had a life insurance policy in which she (the mother) was the beneficiary, and she collected the life insurance.  Mrs. Donnelly said that she was still concerned about her marriage status, and that Donnelly told her he would take her to a lawyer friend of his who practiced law at Homestead, Pennsylvania; that they went to see this lawyer and, whereas the record does not specifically disclose that the lawyer said that she could marry, the inference is inescapable that he told both Mrs. Donnelly and Donnelly that Mrs. Donnelly could validly marry.

   Donnelly says that all this was after their marriage and was brought about by an investigation[***9] by the Veterans Administration of whether or not Blankenship [*346] was dead. But the chancellor found, and we think he was correct, that the trip to Baltimore to see the parents of Blankenship, and the trip to Pennsylvania to see the lawyer at Homestead, were before they were married, in 1935, at Martinsburg, West Virginia.  There can be no doubt, from this record, that Donnelly and Elsie Donnelly thought that Blankenship was dead and that their marriage was perfectly legal.

   The facts in this case are entirely different from the facts in the Hutson v. Hutson case, 168 Md. 182, 177 A. 177, 180. In that case Hutson, a widower, married Florence B. Hutson on May 15, 1933, and caused certain property belonging to him to be transferred to himself and Mrs. Hutson as tenants by the entireties. In February, 1934, Hutson discovered that Mrs. Hutson was legally married to a man by the name of Wagner.  On February 7, 1934, Hutson filed a bill for annulment of his marriage to Florence Hutson.  There was fraud on the part of Mrs. Hutson as to what she told [**92] Hutson concerning her marriage status.  The decree was granted, annulling the marriage, and was affirmed by this court. [***10] In the Hutson case this court quoted from Lang v. Wilmer, 131 Md. 215, 224, 101 A. 706, 709, 2 A. L. R. 1698, as follows: "'The intention of the grantor * * * should prevail unless in conflict with some settled rule of law.'" It is also said in the Hutson case: "'The case is also to be distinguished from cases in which people living together as husband and wife, and in good faith believing themselves to have that status, acquire property by their joint labor and enterprise, and take title to the same as tenants by the entireties.'"

   It is conceded that the marriage between these parties was a nullity, and properly so.  If Mrs. A. makes fraudulent statements to Mr. B. concerning her marriage status, and Mr. B., relying thereon, marries her at a time when she has a husband living, who has not been legally divorced from her, her marriage to Mr. B. is a nullity; and if Mr. B. in good faith thinks she is his valid wife, and makes a gift to her of property, whether real or [*347] personal, as his wife, and thereafter the supposed marriage is annulled, the gift fails, for it falls with the annulment, provided the aggrieved party applies promptly to the courts for relief. [***11] The reason is that the donor intends to give to a woman who is his wife -- there is no intention to give to one who is not his wife.  Hutson v. Hutson, supra.

   In a case where there is no fraud involved, and Mrs. A. thinks her husband is dead, and in good faith communicates to Mr. B. all the facts and circumstances which cause her to believe that her husband is dead, and marries B. and lives with him for a number of years as husband and wife, thinking she is legally married to him, and they acquire property as husband and wife, a different rule governs property rights, although the marriage is a nullity.

   These people were married on March 8, 1935.  The agreement to purchase the property was entered into on December 23, 1935.  This case was instituted on May 2, 1949.  The parties lived on this property from the time of its purchase, in 1935, until 1946, when the separation occurred.  Thus for eleven years they lived together on the property in question.  The inquiry conducted by the Veterans Administration as to whether Blankenship was living or dead was long before these parties separated.  It may be said in passing, without discussing the question in detail, that each of these[***12] parties worked and contributed in making payments to the Building Association under the contract of purchase.  Mrs. Donnelly testified that she and her husband talked together concerning the execution of this contract with the Building Association.  She said she negotiated with the Building Association as well as her husband.  The contract is entered into by the Building Association and Henry Arthur Donnelly and Elsie Virginia Donnelly, his wife, and was so executed by them.  The marriage was a nullity at that time and it was legally impossible for Mrs. Donnelly to enter into the agreement as a wife of Henry Arthur Donnelly.

   [*348] What we have here is a case where a man and a woman went through a marriage ceremony, each thinking, in good faith and without a semblance of fraud, that they occupied a status that validly permitted them to marry, but years afterwards, by a decree of court, it was determined that at the time of the marriage the woman had a husband living, and that neither she nor her husband had procured a divorce.

   Turning to the contract in this case, under which these parties acquired the property in question, among other things, it states: "This Agreement, [***13]Made this 23 day of December, in the year one thousand nine hundred and thirty-five, between THE HANOVER BANKING AND BUILDING ASSOCIATION OF BALTIMORE CITY, a body corporate, in the State of Maryland, of the first part, and HENRY ARTHUR DONNELLY and ELSIE VIRGINIA DONNELLY, his wife, of the second part." (Italics supplied.) It is apparent that Elsie Virginia Donnelly is a party to this contract, but not a party to it as Donnelly's "wife", as she could not be a party to it as his wife because she was not his wife.  Now after all [**93]these years, and after the circumstances which we have referred to, the plaintiff in the original bill, and the defendant under the cross bill, contends that Elsie Donnelly, having entered into a marriage which was invalid, has no interest whatsoever in the property concerned, and that the same should be decreed his absolute property, free and clear of any interest whatsoever of Elsie Donnelly.

    It will be noted that the words "his wife" used in the contract are unqualified: no words of limitation are employed.  If the words "his wife" are dropped from the instrument (as they must be) Donnelly and Elsie Donnelly acquire an interest in common in[***14] the property referred to.

   In Kolker v. Gorn, 193 Md. 391, 398, 67 A. 2d 258, 261, property was conveyed to John M. Gorn, Samuel G. Gorn and Margaret A. Gorn, his wife, as joint tenants. John was the father of Samuel.  John supplied Samuel with [*349] money to purchase the land and build a home to be occupied by himself and minor son and Samuel and his wife.  All three contributed towards the cost of building the house.  It was contended that the property was to be owned, one-half by the father and one-half by Samuel and his wife.  Payments on a mortgage were made equally by the father and Samuel, as were expenses of the house.  Judge Henderson, speaking for the court, said: "In the instant case we find nothing in the instrument, other than the descriptive word 'wife', to indicate an intention that the joint tenancy should exist between the first-named grantee and the other two.  Since we have held that the use of the words 'joint tenants' rebuts the presumption arising from the word 'wife', or the fact that the grantees are husband and wife, we find no basis in the language itself for severing the tenancy into two different types.  The qualifying words seem clearly applicable [***15]to all three parties, and their respective 'survivors or survivor'."

   The agreement of December 23, 1935, is between the Building Association and Henry Arthur Donnelly and Elsie Virginia Donnelly, "his wife", of the second part.  The Kolker case was governed by the descriptive words which controlled the character of tenancy by which the grantees held the property.  In this case the descriptive word "wife" is unqualified, and as Elsie Virginia Donnelly was not the wife of Henry Arthur Donnelly we hold that they took as tenants in common of the land described in the agreement, and that the Kolker case controls the case at bar.  We have considered the cases on the brief of the appellant, some of which are from other jurisdictions, but we cannot use them in the case at bar because we must be governed by our own precedents.  Under the agreement aforesaid these parties were to pay $3,200.00 for the property, in installments of $30.00 a month, from which the taxes and insurance were to be paid, and the balance applied to the purchase price.  There has been no breach of this contract and there is now due under it about $1,800.00.  Since the [*350] Howard County Court annulled the[***16] supposed marriage between these parties, Elsie Donnelly has divorced Blankenship and married one Smithson and appears in this record as Elsie Virginia Donnelly, presently known as Elsie Virginia Smithson.

   It was agreed between the Donnellys that the property involved in this case could not be divided in kind without loss or injury to the parties.  We therefore are of the opinion that the plaintiff in the cross bill was entitled to have a trustee or trustees appointed by the chancellor to sell the property and divide the proceeds between the Donnellys according to their respective rights.  Code 1939, Art. 16, sec. 159; Cook v. Hollyday, 186 Md. 42, 45 A. 2d 768; Birckner v. Tilch, 179 Md. 314, 18 A. 2d 222.

   Decree affirmed in part and reversed in part and case remanded for the passage of a decree in conformity with this opinion.  Costs to be paid by Henry Arthur Donnelly. 

In Re CLARKE'S WILL CLARKE, Individually and as SubstitutedTrustee, et al. v. CLARKE 
No. 175, October Term, 1950
 
Court of Appeals of Maryland
 
198 Md. 266; 81 A.2d 640; 1951 Md. LEXIS 318

 June  15, 1951, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, Jr., C. J.

DISPOSITION: Decree affirmed in part, reversed in part, costs to be paid out of the trust estate.

CORE TERMS:  testator, substituted, trust estate, descendants, survive, widow, grandchildren, vested, gift, grandchild, dissipation, remainder, survival, corpus, future interests, future interest, home place, declaration, devolution, contingent, survived, married, infant, decree, died, surviving children, per capita, contingency, surviving, appointees

COUNSEL: C. Maurice Weidemeyer, with whom was John Demyan, Jr., on the brief, for the appellants.

   Charles G. Page, with whom was William J. McWilliams on the brief, for the appellee.

JUDGES: Marbury, C. J., and Collins, Grason and Henderson, JJ., and Gray, Jr., J., Chief Judge of the Seventh Judicial Circuit, specially assigned.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*268] [**640] J. Beauregard Clarke died on October 14, 1913, leaving a will executed on September 30, 1913.  He was survived by his [**641]widow, Ella Scott Clarke, and a son, J. Ernest Clarke, who was at that time unmarried.  The residue of the estate was left in trust "to pay over to my dear wife Ella Scott Clarke the total net income therefrom during her natural life; and from and after the death of my said wife then to pay over the total net income therefrom to my dear son J. Ernest during his natural[***4] life; and from and after the death of my said son J. Ernest, should he survive my said wife, then to his issue, absolutely and in default of issue of my said son, then to such person or persons as he may designate by will duly executed according to the laws of this State; such disposition upon the death of my said son to be free and clear of this trust should my said son not survive my said wife, then I desire and will that she make Will as aforesaid such disposition of the corpus of said trust estate as she may think proper, whereupon this trust shall cease.  It is my will that my said wife have the privilege of occupying and enjoying my home place called 'Fairview' as long as she may desire and of running the place as she may think proper under the counsel and advice of the trustee aforementioned; but it is particularly my will that neither my said wife nor my said son have the power to anticipate any income from said trust estate, but that said estate, as to principal and interest shall be always free from any creditor of my said wife or son, or both of them." The trustee was given full power to make changes in the trust property, but not to dispose of the home place during[***5] the widow's lifetime without her written approval.  She was requested to allow the son to reside there as long as she made that her residence.

   In 1916 J. Ernest Clarke was married to Angela G. Clarke and there were born to them three sons (a) Joseph Anderson Clarke, who was born February 21, [*269]1918, and died intestate, unmarried and without issue on April 6, 1941; (b) Thomas B. Clarke, who was born on August 7, 1920, is married to Virginia P. Clarke and has no children; (c) Robert Fulton Clarke, who was born on August 10, 1926, and was married to Fay C. Clarke (now Leach) and divorced from her on March 8, 1950.  Robert Fulton Clarke, Jr. was born of this marriage on October 16, 1948.  Ella Scott Clarke resided at "Fairview" with her son and daughter-in-law until her death on March 13, 1940.

   On petition of Tazwell T. Thomas, the trustee named in the will, the court assumed jurisdiction of the trust in 1915.  He died in 1943 and Angela G. Clarke was appointed substituted trustee.

   The present proceeding was instituted by Robert Fulton Clarke, Jr., through his mother as next friend, to obtain a declaration of his interest in the trust estate, to require an accounting and to[***6] protect his interest against threatened dissipation. The petition recited that the substituted trustee proposed to sell the farm "Fairview" and to apply the proceeds for the benefit of her husband.  It was prayed that the court continue jurisdiction, require the substituted trustee to account, declare that the petitioner has a one-third remainder interest in the trust estate dependent upon the death of J. Ernest Clarke, and remove the substituted trustee, or require her to furnish bond.  The answer admitted the allegations as to pedigree but denied the charges of breach of trust and dissipation of assets, and challenged the standing of the petitioner to sue.  After hearing testimony, the court decreed that "by a true construction of the will * * * the word 'issue' means all descendants of J. Ernest Clarke" and that the petitioner "has a contingent remainder in the trust property dependent upon his survival of J. Ernest Clarke, upon which event he will be entitled to share equally with other descendants living at J. Ernest Clarke's death." It was further ordered that the substituted trustee file a report of her administration, and a bond for faithful performance.  The [*270][***7] appeal is from that decree. The sole question raised is as to the construction of the will.  It is conceded that the testimony taken threw no light on this problem, and it is not printed in the appendix.  It was directed almost wholly to the charges of neglect and threatened dissipation of assets.  J. Ernest Clarke and his wife are still residing at "Fairview" and he claims [**642] to have expended considerable sums for maintenance and repairs.  The place has not been farmed for some years.  It was shown that there have been negotiations with the State Roads Commission as to the acquisition of an extensive right of way for a new dual highway through the property.

   The appellants chief contention is that the word "issue", as used in the will, should be construed to include only the children of J. Ernest Clarke; since the petitioner cannot answer that description, he has no standing to sue.

   In Mazziotte v. Safe Deposit and Trust Company, 180 Md. 48, 50, 23 A. 2d 4, 5, Chief Judge Bond, speaking for the court, said: "The word 'issue' in the disputed clause is clearly one of purchase.  Miller, Construction of Wills, Sec. 77.  And standing alone, the meaning of it has been a subject[***8] of difference of opinion.  Miller, supra, Secs. 89 and 90; Notes 2 A. L. R. 930; 5 A. L. R. 195; 78 A. L. R. 1385, 1398; 117 A. L. R. 691. Primarily, it embraces all lineal descendants. Goldsborough v. Martin, 41 Md. 488, 501. But in Maryland it has usually been found equivalent to heirs of the body or those who would take in case of intestacy, thus rendering gifts to remoter descendants only substitutional, in place of gifts to deceased ancestors.  Horwitz v. Safe Deposit Company, 172 Md. 437, 451; 192 A. 281; Miller, supra, Sec. 358, p. 1012. And see McPherson v. Snowden, 19 Md. 197, 229. It is not a word of fixed meaning, and the sense in which the testator has used it is the test for interpretation, and for this context will control.  'Its true interpretation must be found from the connection in which it is used.' Thomas v. Higgins, 47 Md. 439, 451 * * *." [*271] The stress in that case was laid upon the use of the words "per capita".

   In certain contexts the word has been construed as children.  Thomas v. Safe Deposit and Trust Company, 73 Md. 451, 458, 21 A. 367, 369, 23 A. 3. In that case the expression was "issue, children or descendants".  In [***9] Bishop v. Horney, 177 Md. 353, 9 A. 2d 597, it was assumed that a remainder to issue vested in the children of the life tenants, although the rights of grandchildren were not involved and the court held that even if the interests were contingent, they would be bound in equity by joinder in a mortgage.  On the other hand, in Ryan v. Herbert, 186 Md. 453, 460, 47 A. 2d 360, the word "children" was construed to include descendants, largely on the strength of a gift over in default of "issue".  Cf. Lee v. Waltjen, 141 Md. 458, 462, 119 A. 249.

   In the instant case there are several reasons why we think the word should be given the broader meaning.  The will was drawn by a lawyer who obviously used the word in its technical, rather than a popular, sense.  The testator could have had no particular persons in mind, since his son did not marry until three years after the testator's death.  There is nothing to indicate that the testator intended to prefer his putative grandchildren over his putative greatgranchildren.  If there were no surviving children of the son at the son's death, but surviving grandchildren, the latter could not take under the will, according to this construction, [***10] except as appointees under the son's will.  The appellants point out that unless the son survived the testator's widow, neither his children nor descendants could take, except as appointees under the widow's will, but the failure of the testator to recognize either class in that contingency throws no light upon his intention in the contingency now under consideration.  Moreover, if the son survived his mother and died leaving one child and any number of grandchildren, the children of a deceased child or children, the latter would be totally disinherited under the appellants' construction, since only the surviving child [*272] would take.  In the absence of any evidence of an intention to prefer some of the natural objects of the testator's bounty over others, there is a recognized presumption against such a result.  Fairfax v. Brown, 60 Md. 50, 60. Cf. Reed v. McIlvain, 113 Md. 140, 148, 77 A. 329.

   In the will before us we think the word "issue" is not confined to the children of J. Ernest Clarke and hence the infant appellee has a potential future interest in the corpus sufficient to sustain the action of [**643] the chancellor in requiring the substituted trustee[***11] to account and post a bond.  That finding would seem to dispose of the present controversy. The petitioner contends that his interest in remainder is contingent upon his survival of J. Ernest Clarke, or, alternatively, vested subject to divestment upon his failure to survive as a member of the class.  He contends that if he survives J. Ernest Clarke he will be entitled to share per capita with the surviving children and descendants, even though his father may be alive at that time, and that upon the death of Joseph Anderson Clarke, intestate and without issue, Joseph's interest passed to the other members of the class, not to his heirs and next of kin.  The appellants seem to contend that the gift was not to a class, but vested absolutely in each child of J. Ernest Clarke at birth, subject to divestment in the event that J. Ernest Clarke predeceased the testator's widow, and subject to diminution pro tanto upon the birth of other issue.  They concede that the remainders could not vest at the testator's death, since there were no remaindermen in esse at that time, but argue that the remainders vested subsequently and are not conditioned upon survival of the second life[***12] tenant.  They point to the absence of any words such as "then living", or "living at the death of J. Ernest Clarke", and argue that the words "from and after" his death "then to his issue absolutely", relate only to the time of enjoyment.

   None of these contentions affects the petitioner's right to relief, but only the method of devolution and the quantum of his interest, which is not now material.  The [*273] purpose of the present proceeding is to require an accounting and prevent dissipation of assets.  The declaration of interest is sought only to that end.  If the petitioner has any interest at all he is entitled to invoke the court's protection.  2 Scott, Trusts § 200; Johnson v. Superior Court, 1948, 68 Ariz., 68, 199 P. (2) 827, 829. If the home place is sold or condemned, in whole or in part, the substituted trustee, who is authorized by the will to convey and invest the proceeds, will hold the proceeds subject to the trust over which the court has assumed jurisdiction.  Under the circumstances, we think the petition does not state a case for general declaratory relief, apart from his standing to sue.

   We intimate no opinion as to whether such relief might be[***13] granted in other circumstances.  In Ryan v. Herbert, supra, we construed a will in respect to future interests at the instance of petitioners asserting a right to assign or will their interests, which was denied by the other parties.  Cf. Brown v. Trustees of M. E. Church, 181 Md. 80, 28 A. 582, where the construction was sought by an executor.  In the instant case the petitioner asserts no such right, but on the contrary, since there is no cross-appeal, apparently concedes that his interest is contingent upon his survival of J. Ernest Clarke and not transmissable.  In Staley v. Safe Deposit and Trust Company, 189 Md. 447, 456, 56 A. 2d 144, we declined to construe the will of a non-resident in the exercise of sound judicial discretion, on the ground that it would not serve a useful purpose or terminate controversy.  It has been held that courts in declaratory judgment proceedings will not construe wills on points not in controversy, or not necessary to the determination of the controversy presented.  Cf. In re Brown's Estate, 289 Pa. 101, 137 Atl. 132 and Mulcahy v. Johnson, 80 Colo. 499, 252 P. 816, 821, cited in Borchard, Declaratory Judgments, (2nd ed.) [***14] p. 300.  The mere fact that future interests are involved will not defeat the power to declare rights, but the power should be cautiously exercised where the questions of devolution may never arise [*274] and the rights of unborn persons may be affected.  Under the circumstances disclosed by the pleadings in the instant case, we shall remand the case for modification of the decree in accordance with the views here expressed.  All questions not now decided are, of course, reserved for future determination as the need may arise.

   Decree affirmed in part, reversed in part, costs to be paid out of the trust estate. 

FRIENDSHIP CEMETERY OF ANNE ARUNDEL COUNTY et al. v. CITY OFBALTIMORE et al. 
No. 111, October Term, 1950
 
Court of Appeals of Maryland
 
197 Md. 610; 81 A.2d 57; 1951 Md. LEXIS 278

 May  16, 1951, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Rehearing or Clarification Filed June 1, 1951.  Rehearing Denied June 15, 1951.  Memorandum on Motion for Clarification Filed June 15, 1951.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  cemetery, airport, ordinance, acquire, taking of property, site, public use, condemnation, municipal, public improvements, parcels of land, designated, damaged, air, destruction, railroad, consequential damages, mandamus, nearby, airplanes, erected, flight, unfit, dam, writ of mandamus, property owner, tract of land, amendatory, atmosphere, church

COUNSEL: Paul F. Due, with whom were Marvin I. Anderson and Due, Nickerson & Whiteford on the brief, for the appellants.

   William J. McWilliams and Daniel B. Leonard, Assistant City Solicitor of Baltimore, with whom was Thomas N. Biddison, City Solicitor, on the brief, for the appellees.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Grason, Henderson and Markell, JJ.  Delaplaine, J., delivered the opinion of the Court.  Marbury, C. J., concurs.  Markell, J., concurs.

OPINIONBY: DELAPLAINE

OPINION: [*613] [**58] Friendship Cemetery of Anne Arundel County, a Maryland corporation, and Norman W. Clark and his wife, owners of a lot in the cemetery, petitioned the Circuit Court for Anne Arundel County for a writ of Mandamus to compel the Mayor and City Council of Baltimore and the members of the Airport Board of the City Department of Aviation to condemn the cemetery for the Friendship Airport. They are appealing here from an order dismissing their petition.

   The Maryland Aeronautics Act authorizes any city in the State to acquire, establish, maintain and operate[***5] an airport either within or without its limits.  Laws of 1945, ch. 956, Code Supp. 1947, art. 1A, sec. 35.  The Act provides that the powers hereby conferred shall include acquisition of property for an airport, but directs that any city, before acquiring property for an airport, shall make application to the State Aviation Commission for a certificate of approval of the site selected to insure it shall conform to minimum standards of safety and shall serve the public interest.  Laws of 1945, ch. 760, Code Supp. 1947, art. 1A, sec. 17.

   In 1946 the Mayor and City Council of Baltimore passed an ordinance selecting the site for its airport at Friendship in Anne Arundel County, and declaring it to be necessary to acquire for that purpose the tract of land described by metes and bounds in the ordinance. The ordinance authorized and directed the City Aviation Commission (now called The Airport Board, under Baltimore City Charter, 1949 Ed., sec. 137) to acquire all of the land within the designated area, containing approximately 3,000 acres, by purchase if possible, but if impossible, then by condemnation.

   [*614] The City made application to the Commission for a certificate of approval[***6] of the site selected.  Among those who opposed approval were representatives of Friendship [**59] Methodist Episcopal Church South and the Friendship Cemetery. The church and the cemetery were within the area declared to be needed for the airport. In spite of the protests, the Commission approved the site. We agree that there is nothing in the record to indicate that the Commission believes that the public safety requires that the cemetery must be immediately condemned for the purposes of the airport. In giving its approval to the site selected by the City, the Commission was interested in the general location and the approximate size of the airport and other considerations set forth in the statute.

   Work was started on the airport in 1947.  Parcels of land completely surrounding the cemetery were acquired.  The church was acquired by the City and torn down.  The cemetery is located on the Fort Meade Road, which runs from Baltimore to Fort Meade.  The cemetery company owns two parcels of land in the area.  One parcel contains 3.37 acres, the other 5.75 acres.

   The managers of the cemetery company were willing to sell the cemetery. But one of the difficulties was the fact that[***7] the City asked for the transfer of the certificates of title to the lots and the consent of the owners to the removal of bodies.  The cemetery company thought it impossible to comply with this requirement, because about 1,800 lots had been sold, and about 600 of these had been used.  Negotiations covering a period of several years were conducted without avail.  The company then asked the Airport Board to institute condemnation proceedings.  But it was found that the cost of removing the bodies to another cemetery was enormous.  The Maryland statute provides that whenever any State, County or City authorities shall proceed by the power of eminent domain to acquire property which is used as a cemetery, the jury, in assessing damages, shall take into consideration, in addition to the damages for the [*615]land and improvements, the cost of removal of the bodies, markers and monuments to some other suitable or comparable place within the State.  Laws of 1945, ch. 804, Code Supp. 1947, art. 33A, sec. 9A.  One of the officials of the cemetery offered to move 504 bodies from the cemetery to Meadowridge Cemetery for $109,850.  It was also stated that it would cost $72,500 for a parcel[***8] of land in Loudon Park Cemetery which could be divided into lots equal in size and number to those in Friendship Cemetery.

   As the ordinance directed the Airport Board to acquire, by purchase or condemnation, all the land in the area designated in the ordinance, the Airport Board adopted a resolution on January 22, 1948, declaring that there was no existing necessity for the acquisition of certain parcels of land within the bounds of the airport site, and requesting the Mayor and City Council to authorize the Board to acquire only such parcels in the area as in its judgment may be necessary and proper.  On January 26, 1948, the Mayor and City Council, in accordance with the Board's request, passed an amendatory ordinance which authorized and empowered the Board to acquire "such of the pieces or parcels of land * * * at such times as may be necessary or proper to effect the efficient construction, maintenance and operation of the airport."

   It is plain that the Mayor and City Council, by the passage of the amendatory ordinance, rescinded the mandatory provision in the original ordinance that the Airport Board shall acquire all of the land in the designated airport area. This modification[***9] the Mayor and City Council had the right to make. The law is clear that a municipal corporation has the right to abandon any contemplated improvement and repeal or amend any ordinance providing for the same, and after such abandonment no property owner can compel the corporation to take and pay for property condemned for such purpose.  Pumphrey v. City of Baltimore, 47 Md. 145, 150, 151, [*616] 28 Am. Rep. 446; City of Baltimore v. Musgrave, 48 Md. 272, 30 Am. Rep. 458.

   Appellants urge, however, that, even though the Airport Board is now vested with discretion to determine what parcels of land it shall acquire, nevertheless the cemetery has been damaged so severely that the Board should be compelled to condemn it.  The Airport Board says that it does not need the cemetery at present.  It says the cemetery is at least 2,800 feet from the nearest runway and about 350 feet from [**60] the nearest taxiway.  The question before us is whether private property has been taken within the meaning of Article 3, Section 40, of the Constitution of Maryland, which provides: "The General Assembly shall enact no Law authorizing private property to be taken for public use, without[***10] just compensation as agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation."

   In England any necessary damage inflicted upon the land of an adjacent owner in the construction of a public improvement was damnum absque injuria. Moreover, there was nothing in the history of the law or politics in the Colonies to warrant the belief that uncompensated indirect injury from public improvements was one of the evils which the framers of the State and Federal Constitutions sought to eradicate.  Accordingly the courts held for many years that the constitutional limitation as to the taking of property applied only to a physical taking of the property, and the owner could not hold a municipal corporation liable for any consequential damages resulting from the proper execution of public works authorized by statute.

   Prior to the middle of the nineteenth century, cases did not often arise in America in which property was seriously damaged by the construction of public work on adjacent land, and hence the lack of any remedy for such injury was not seriously felt.  But afterwards, in the course of the rapid growth in population [***11] of cities and the development of modern means of transportation, [*617]public improvements were undertaken which inflicted serious damage on private property.  Many cases of hardship were evident when it became necessary to raise or lower the grades of streets in closely built cities, and in consequence houses were left standing below or above the new grade.  While the doctrine was established that consequential injuries were damnum absque injuria, the courts in many decisions, while denying the owner compensation, expressed regret at the harshness of the rule and suggested remedial legislation.

   In 1836 the Legislature of Massachusetts enacted a statute providing that an owner of property injured by a change of grade might recover his damages from the city or town.  In some States constitutional amendments were adopted so as to make certain that property would not be damaged for the public use without compensation.  Similarly in England, although there are no constitutional restrictions upon the power of Parliament, it is the practice to insert in acts authorizing the taking of property for public use a provision for the payment of compensation to the owners of lands injuriously[***12] affected as well as the owners of lands taken.  In Maryland there is no constitutional amendment or general statute requiring compensation to property owners for consequential damages resulting from public improvements.

   A liberalization in interpretation of the meaning of "taken" was promoted by the Supreme Court of New Hampshire in 1871 in Eaton v. Boston, Concord & Montreal R. Co., 51 N. H. 504, 12 Am. Rep. 147, 151. There the railroad company had cut through a ridge between the appellant's farm and a river, with the result that the farm was flooded during freshets and large quantities of earth and stones were brought down upon it, making it unfit for cultivation.  The Court held this to be a taking of property, explaining that while the term "property" was applied in common parlance to a tract of land, it actually means in law "the rights of the owner in relation to it."

   [*618] That decision was followed by Pumpelly v. Green Bay & Mississippi Canal Co., 13 Wall. 166, 179, 20 L. Ed. 557, 561, a suit for damages charging the canal company with overflowing the plaintiff's land by erecting a dam across Fox River.  The Court accepted the doctrine that a serious interruption [***13]to the necessary use of property, such as the overflowing of land from the construction of a dam across a river, is equivalent to the taking of property.

   The Maryland Court of Appeals has adopted the principle that where a municipal or public service corporation does work which causes nearby land to be flooded, so as to destroy or substantially impair its [**61] usefulness, there is a taking of property within the meaning of the Maryland Constitution. In Northern Central R. Co. v. Oldenburg & Kelley, 122 Md. 236, 243, 89 A. 601, it was held that the action of a railroad in allowing steam or hot water from its roundhouse to flow over the land of the adjoining property owner, so as to make a deep ditch on the land and by undermining the supporting soil to wash away a bridge, was a taking of property within the meaning of the Constitution.

   Whether private property which has suffered damage from nearby public improvements has been taken is a question of degree.  For instance, in United States v. Lynah, 188 U.S. 445, 23 S. Ct. 349, 47 L. Ed. 539, where dams erected by the Government in the Savannah River caused the water to flow back on the land, thus turning a valuable rice[***14] plantation into an irreclaimable bog unfit for agriculture, it was held that there was a taking within the meaning of the Fifth Amendment.  On the contrary, in Manigault v. Springs, 199 U.S. 473, 26 S. Ct. 127, 50 L. Ed. 274, it was held that a flow of water on land to a minor extent, where the damage could be prevented by raising the banks, did not constitute a taking.

   In 1914 the Supreme Court held in Richards v. Washington Terminel Co., 233 U.S. 546, 34 S. Ct. 654, 58 L. Ed. 1088, that an owner of property in the neighborhood of railroad tracks could recover for the damages which [*619] resulted from the use of a fanning system to force gases and smoke from a tunnel so near his property as to render it less habitable than it would be otherwise. The Court considered that it was a nuisance of such a character as to amount in effect to a taking of private property for public use.

   It is now the law of this State that acts done in the proper exercise of governmental authority which impair the use of nearby private property do not constitute a taking of property within the meaning of the Constitution, unless there is (1) an encroachment upon or physical invasion of the[***15] property, or (2) a substantial obstruction of access, or (3) a deprivation and not merely a diminution of light and air. City of Baltimore v. Bregenzer, 125 Md. 78, 93 A. 425. In Taylor v. City of Baltimore, 130 Md. 133, 143, 99 A. 900 L. R. A., 1917C, 1046, the City of Baltimore erected a sewage disposal plant, and after it was put in operation the sewage was spread over a large area of low land near the plaintiff's property.  There arose from the sewage horrible, sickening and disease-breeding odors, which permeated the atmosphere around the plaintiff's property at all hours of the day and night, rendering the dwelling unfit for occupancy.  The Court held that the offensive odors created an unsanitary condition, interfered with the use of the property, and impaired its value, and entitled the plaintiff to recover damages, but did not constitute a taking of property.

   In 1920 the Court held in Sanderson v. Baltimore, 135 Md. 509, 523, 109 A. 425, that where the City, in grading the streets on which the plaintiff's property abutted, excavated the beds of the streets to a depth of between 15 and 20 feet, leaving the property inaccessible to pedestrians except by a steep [***16]flight of steps, and absolutely inaccessible to vehicles of every description, there was a taking of private property.  The Court found that the grading had resulted in the practical destruction of access to the plaintiff's property.

   [*620] In 1922 the Supreme Court held in Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S. Ct. 135, 67 L. Ed. 287, that if the Government installs a battery with the purpose of subordinating the strip of land between the battery and the ocean to the privilege of the Government to fire projectiles directly across it in artillery practice whenever it sees fit, thereby having the result of depriving the owner of its profitable use, the imposition of such a servitude will constitute a taking of property.

   In Krebs v. State Roads Commission, 160 Md. 584, 154 A. 131, the Court of Appeals held that the fact that the elimination of a grade crossing over a railroad required the removal of the crossing further away from the plaintiff's store, so as to lengthen its distance from the village, did not take his property within the meaning of the Constitution.

   In City of Baltimore v. Himmelfarb, 172 Md. 628, 631, 632, [**62] [***17]192 A. 595, 597, where the plaintiff claimed that his property had been damaged as the result of the construction of a viaduct, we held that, since the right to compensation for property taken for public use does not extend to cases of consequential damage unless there is such severe interference with its use as to amount to the destruction or deprivation of its use, the City of Baltimore was not liable because the plaintiff's property was not deprived of light and air to a material degree.  Chief Judge Bond said in the opinion of the Court: "There has been no destruction of access or use of the plaintiff's property.  The cutting off of light and air as described could not constitute destruction of it, nor could the blowing of dust and gases into it, except by a fiction too far removed from the fact.  * * * The damages are only consequential.  * * * Public improvements often cause severe incidental damages for which, under this rule, no compensation may be obtained.  But it must be remenbered * * * that despite the examples of constitutional amendments and statutes enacted in other jurisdictions to provide the compensation, none have been enacted in [*621] this State; and the fact[***18] imposes on the courts all the more firmly the duty of observing the limits of the constitutional prohibition."

   In the case before us it was strongly urged that the church and other buildings have been torn down, and that the cemetery is now isolated in the airport area.  It was also urged that the owners of cemetery lots had moved to other localities, and that the value of the cemetery property has been impaired as a result of the acquisition of the surrounding properties for the airport. Nevertheless, while a number of the lot owners had removed 79 bodies to other cemeteries, they were not compelled to do so, and there are still more than 500 bodies buried in the cemetery. Thus the cemetery company is still using the property for burial of the dead, and it may continue to do so until it is bought or condemned.

   The situation is somewhat different from that in United States v. Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206, where airplanes of the United States passed over the plaintiffs' chicken farm adjacent to the airport near Greensboro, North Carolina.  In that case the airplanes frightened the chickens and made it necessary for the plaintiffs to give up their chicken[***19] business, and also made the members of the family frightened and nervous.  It was shown that the planes came close enough at times to appear barely to miss the tops of the trees.  The Court of Claims found that the frequent, low-level flights were the direct and immediate cause of the diminution in value of the property.  The Supreme Court agreed with the Court of Claims, Causby v. U. S., 60 F. Supp. 751, 104 Ct. Cl. 342, that a servitude had been imposed upon the land, because the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it.

   It is true that if a landowner is to have full enjoyment of his land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise [*622] buildings could not be erected. The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.  However, in the case before us there has not yet been any actual appropriation of the cemetery property.  While the establishment of the airport has caused consequential damage to the property, it has not encroached upon or [***20]invaded the property, or destroyed the right of access, or deprived the property of light and air. The cemetery company still retains possession of the property and has access to it over an improved road maintained by the City.

   As we have come to the conclusion that it has not been shown that the airport has interfered with the use of the cemetery property to such an extent as to constitute a taking of the property, the order of the Circuit Court dismissing the petition for mandamus must be affirmed.

   Order affirmed, with costs.

CONCURBY: MARBURY; MARKELL

CONCUR: Marbury, C. J., delivered the following concurring opinion.

   I think in this case there has been a taking, but I agree that the petitioners have no right to a writ of mandamus.  If the property has already been taken, then there is no occasion to require defendant to take it again by condemnation. The proper [**63] remedy for the plaintiffs will be found in a suit in trespass, and I see no reason why the measure of damages will not include the special provisions made by the legislature in cases where cemeteries are condemned.

   I concur in the result.

   Markell, J., delivered the following concurring opinion.

   I concur[***21] in the decision of the court and in the opinion that there was no taking, though that question is not necessary to a decision.  I also agree with Judge Marbury that the remedy for a wrongful taking would not be [*623] mandamus, but an action for damages.  Whether under the Taylor case and others an action could now be maintained for damages without taking is a question not now before us. 

HANEY et ux. v. KNIGHT 
No. 82, October Term, 1950
 
Court of Appeals of Maryland
 
197 Md. 212; 78 A.2d 643; 1951 Md. LEXIS 230

 February  9, 1951, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court of  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed in part, reversed in part, costs to be equally divided between the parties.

CORE TERMS:  custody, domiciled, adoptors, domicile, decree, consent to adoption, natural mother, entrustment, resident, illegitimate child, placement, custodian, opposing, awarding custody, infant, satisfactory, permanent, married, revoked, lived, Conflict of Laws, withdraw, interlocutory decree, dependent child, home life, one year, authorization, permanently, instituted, chancellor

COUNSEL: John G. Rouse, Jr. and C. Osborne Duvall, with whom were [***3] Rouse & Morton, on the brief, for appellants.

   R. Tilghman Brice, III, for appellee.

JUDGES: Marbury, C. J. and Delaplaine, Collins, Henderson and Markell, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*213] [**644] This appeal is from a decree of the Circuit Court for Anne Arundel County, in equity, denying a petition for the adoption of an infant and awarding custody of the child to its natural mother.

   Helen Knight, a resident of Greene County, Virginia, gave birth to an illegitimate child on March 12, 1949.  She was then eighteen years of age, and the father of the child had married another girl.  She was one of a family of sixteen, although she had lived from the age of seven in the home of her Sunday School teacher.  On March 20, 1949 she executed an "entrustment agreement" in favor of the Greene County Board of Public Welfare, [*214] relinquishing the child to its permanent care and custody so "that the child may be placed for adoption in a carefully selected home", and authorizing it "to place her in a temporary foster home or institution until arrangements are made for adoption and then to act with full custody of the child." [***4] On April 15, 1949, Mrs. Brown, the superintendent of the Greene County Board, placed the child in the custody of Mr. and Mrs. Haney, a childless couple resident in Anne Arundel County, Maryland.  Mrs. Brown was acquainted with them because Mr. Haney's parents reside in Greene County, where he grew up, and Mrs. Haney's parents in an adjoining county.  Mr. Haney was a Sanitary Engineer employed by the Howard County Metropolitan Commission at a salary of about $7,000 a year.  He lived in a substantial home at Harundale, which he was buying.  The Haneys executed a "Placement Agreement" dated April 15, 1949 assuming responsibility "with the intention of adopting [her] if we find [her] to be a child whom we want to make permanently ours".  They agreed, however, not to "commence court proceedings for the adoption without the consent of the Department, and we understand the Department will not consent to adoption until the child has lived with us for one year."

   On October 18, 1949, the Greene County Board instituted a proceeding in the Juvenile and Domestic Relations Court of Greene County praying that jurisdiction be assumed on the ground that the child was "a dependent child and in[***5] need of the care and protection of the state in that she is a dependent child placed by her mother in the custody of Greene County Department of Public Welfare." Helen Knight appeared by counsel and on October 25, 1949 the court assumed jurisdiction, and passed an order committing the child to the Greene County Board.  However, on appeal to the Circuit Court of Greene County the court on November 29, 1949 "entered the following verdict, to-wit: 'case dismissed'." On the same day the Greene County Board executed [*215] and acknowledged [**645] a consent to adoption of the child by Mr. and Mrs. Haney.

   On January 27, 1950 a petition for adoption and change of name was filed by the Haneys in the Circuit Court for Anne Arundel County.  The petition alleged that Mr. Haney was then employed by the Wilson T. Ballard Company in Baltimore as a resident engineer.  Attached to the petition was the consent previously executed by the Greene County Board.  The court ordered an investigation and report by the Anne Arundel County Welfare Board, which was duly made on March 15, 1950.  It recommended that the adoption petition be granted.  It is conceded that the Haneys are estimable people, [***6] their home and home life are eminently satisfactory, and that the child is happy and well taken care of.

   On March 28, 1950, Helen Knight was married to William Harvey, a resident of Charlottesville, Virginia, then eighteen years of age.  On the following day she appeared, through counsel, in the Anne Arundel County proceedings and was made a party, although notice had not been given by summons or publication.  She filed an answer opposing the adoption and revoking "any and all consents heretofore given by her for the adoption of her infant daughter".  The case came on for hearing on April 27, 1950.  Testimony was given by Mrs. Brown, Mr. and Mrs. Haney, Mrs. Harvey, Mr. Harvey, and William Knight, the father of Mrs. Harvey. Thereafter, the chancellor filed an extensive opinion and on May 25, 1950 signed a decree denying the petition and awarding custody to Mrs. Harvey.  Appeal was taken to this Court and it was agreed that custody of the child should remain with the appellants pending the appeal.  At the argument here it was admitted that after the decree was signed Mr. and Mrs. Haney moved to Charlottesville, Virginia, where he is now employed and permanently resides, taking the[***7] child with them.

    The case presents at the outset certain questions of jurisdiction.  Adoption affects the status of both the [*216] adoptors and the person adopted, and it has been said that "jurisdiction to adopt would seem to depend strictly on common domicile of both parties, since the status of both is affected." Beale, Conflict of Laws, § 142.2.  The learned author admits, however, that the authorities generally hold otherwise.  See note 26 Cornell L. Q. 460 and Restatement, Conflict of Laws, § 142.  In Waller v. Ellis, 169 Md. 15, 179 A. 289, we held that under the statute then in effect the fact that the adoptors were domiciled in Delaware did not oust the jurisdiction of the court in Maryland where the child resided with her grandparents.  The present statute, Code (1947 Supp.), Article 16, Section 85D, provides that "any person" over the age of 21 years may adopt.  Under the Virginia law it would appear that adoptors must be residents of the state where proceedings are instituted. Virginia Code, § 5333b.  In the instant case the child is clearly domiciled in Virginia, where the natural mother has always resided, and this is not altered by the fact that custody[***8] was given to the Greene County Board, or by it to the appellants.  Sudler v. Sudler, 121 Md. 46, 51, 88 A. 26, 49 L. R. A., N. S., 860.

   The present Maryland statute, Code (1947 Supp.), Article 16, Section 85B, provides: "(Jurisdiction and Venue.) The Circuit Courts of the several counties of this State, sitting in equity, and any court of Baltimore City having equity jurisdiction, shall have jurisdiction of all petitions for adoption under this sub-title.  Any such petition may be filed in the county, or in Baltimore City, as the case may be, in which (1) the petitioner or petitioners have their domicile; or (2) the person to be adopted is located; or (3) any lawfully licensed child placement agency, having legal or physical care, custody or control of the person to be adopted is located.  Provided, however, that no such petition shall be filed unless either the person to be adopted or the custodian of such person shall be physically within this State and subject to the jurisdiction of the courts thereof".  At the time of the hearing the adoptors were domiciled in Maryland [*217] and the child was physically present.  It would also appear that the adoptors were the legal[***9] custodians of the child by virtue of the "entrustment agreement" and "placement agreement" filed. [**646] We think jurisdiction was shown.  Stearns v. Allen, 183 Mass. 404, 407, 67 N. E. 349; Wathen v. Ugast, 79 U. S. App. D. C. 162, 143 F. 2d 160. Nor do we think that jurisdiction, once obtained, was ousted by the fact that the adoptors changed their domicile pending the appeal.  If they were well qualified, as is admitted, at the time of the hearing, they did not lose their qualification by a change of residence or employment.

   Before adoption can be decreed, however, it would appear that as a general rule a proper consent must be filed.  Article 16, Section 85G provides: "* * * in no event shall an interlocutory or final decree of adoption be made without having the consents required by this section unless for reasons satisfactory to the court, it shall appear proper to dispense therewith.  Consent to any proposed adoption shall be obtained from: * * * (d) the mother of a child born out of wedlock * * * or (g) the executive head of any public or private child care or child placement institution or agency which through court action or voluntary relinquishment has been[***10] given the care, custody and control of the person to be adopted, including the right to consent to such an adoption * * *." It is at least doubtful whether the "entrustment agreement" could be construed as conferring the right to consent to an adoption.  Mrs. Brown testified "that is the regular form for us to receive custody. Of course, we get consent for adoption on a different form.  That is the regular entrustment agreement for us to receive custody." Counsel for the petitioners also stated that the agreement was not offered "as a consent".  Objection was made to the introduction of the "entrustment agreement" in evidence as an authorization of consent on the ground that it was not acknowledged before a notary and was executed on Sunday.  It is also contended that the consent executed by the Greene County Board is [*218] invalid because in violation of the provision in the "placement agreement" that the Board would not consent to adoption until the child had been with the Haney's for one year. We find it unnecessary to pass upon these questions.

   Section 85H provides that "in no event shall a consent executed by a natural mother before the end of the first thirty days of[***11] the child's life constitute a waiver of the requirement of notice provided for in this section." The notice specified in that section is "to any person or persons whose consent is necessary thereto." Section 85G provides that "any consent obtained under the provisions of this section may be revoked and cancelled at any time during the adoption proceedings prior to entry of an interlocutory decree of adoption." Section 85A declares as a matter of policy that the adoption procedures have as their purpose "the three-fold protection of (1) the adoptive child, from unnecessary separation from his natural parents and from adoption by persons unfit to have such responsibility; (2) the natural parents, from hurried and abrupt decisions to give up the child; and (3) the adopting parents, by providing them information about the child and his background, and protecting them from subsequent disturbance of their relationships with the child by natural parents." While the authorities are not in accord, the weight of authority seems to recognize the right of a parent to withdraw consent down to the time of decree. See notes 2 A. L. R. 2d 887, 892; 156 A. L. R. 1011; 138 A. L. R. 1038. Our statute[***12] seems to adopt that view.  We agree with the chancellor that there were no satisfactory reasons to dispense with the consent of the natural mother under the circumstances.

   Upon the question of custody, however, different principles apply.  Cf. Connelly v. Jones, 165 Md. 544, 170 A. 174 and In re Oelberman, 167 Pa. Super. 407, 74 A. 2d 790. Under our law it is clear that the welfare of the child is of paramount importance.  Dietrich v. Anderson, 185 Md. 103, 117, 43 A. 2d 186; Burns v. Bines, 189 Md. 157, 162, 55 A. 2d 487, 57 A. 2d 188. In opposing the [*219]adoption, the mother withdrew whatever consent to adoption she may have given, but she has never denied that she authorized the Greene County Board to assume permanent custody, although she prayed for custody in the answer filed in the adoption proceedings.  Whether she [**647] could legally withdraw that authorization might depend, to some extent, upon the Virginia law, as would the question as to the effect of the decision of the Virginia court in the case involving dependency.  In any event, we think the evidence before us is too meagre to say with assurance that the custody of the child should now be [***13]given to the mother.  It appears that she was married on the day before her answer was filed, that both she and her husband are employed at a Howard-Johnson restaurant, and they are living in one room.  But the conditions of their home and home life have not been investigated by any agency.  All of the interested parties are now in Virginia; the custodians of the child, the child, the natural mother and her husband are residing in Charlottesville. Under the circumstances we think custody should remain with the appellants unless and until the Virginia courts should decide that the custody should be awarded to the mother.
 
   Decree affirmed in part, reversed in part, costs to be equally divided between the parties. 

THOMAS v. THOMAS 
No. 64, October Term, 1950
 
Court of Appeals of Maryland
 
197 Md. 15; 78 A.2d 225; 1951 Md. LEXIS 210

 January  10, 1951, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  blonde, divorce, reconciliation, desertion, night, marriage, adultery, married, contraceptives, cohabitation, housekeeper, week-end, hotel, matrimonial domicile, lived together, house party, young woman, decree, lived, smear, nude, girl, bag, mature, duty, burden of proof, little weight, witness stand, upstairs, reservations

COUNSEL: William J. McWilliams for the appellant.

   C. Osborne Duvall for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Grason, Henderson and Markell, JJ.  Markell, J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*16] [**225] This is an appeal from a decree[***2] dismissing, after hearing in open court, an amended bill for divorce on the ground of abandonment.  The parties were married on October 2, 1939.  In the original bill, filed April 5, 1948, plaintiff alleged, under oath, that he had resided in Washington with his wife "until on or about the 11th day of February, 1944, except for two intervals of separation", and that "on or about the 11th day of February, 1944, the parties * * * voluntarily separated and have voluntarily lived separate and apart without any cohabitation for three consecutive years." Defendant in her answer denied the allegation of voluntary separation.  On February 2, 1950, plaintiff, by his counsel, filed a petition alleging that "within the past few months certain information has come to the attention of the plaintiff, which the plaintiff believes will establish the fact that said separation was not voluntary but that the defendant did in fact desert the plaintiff" and asked leave (which was granted) to amend his bill so as to charge desertion. The amended bill, filed the same day, charges desertion "Since February, 1944." The case was heard on April 21, 1950, and an opinion and the decree were filed on May 4, 1950. [***3]

   The parties are in their forties.  Neither had been married before.  There were no children.  She is a Roman Catholic, he is not.  She was, and still is, a civil service employee in Washington.  Her salary is now about $3,900.  He was employed as a real estate salesman in Washington.  A few months after the marriage he went into the real estate business there for himself.  At first the business was not successful.  Later, he says, it was.  From the time of the marriage until February 11, 1944, with at least four "intervals of separation" when he left and stayed away, they lived [*17] together at her house in Washington.  On February 11, 1944, he says, he left her house never to return. She says, he denies, that one night in November, 1946, he returned, discussed a reconciliation, had marital relations with her and left the same night. With this possible exception they have not lived together since February 11, 1944. In the later part of 1943 he bought a waterfront property in Anne Arundel County at Shady Side, about thirty-five miles from Washington.  [**226] The former owners had lived there the year round.  Plaintiff says the house was still fit for such occupancy. [***4] Defendant says it could not be heated for winter until plaintiff later made improvements.  They never lived together there.  In the summer of 1944 he lent the Shady Side house to her and some friends for a week-end; he was there at the time.  He says when he finally left in February, 1944 he was willing for her to come down to Shady Side to live with him.  "I discussed it with her on several occasions, and she said until I was able to put her up in something better than she had there she wouldn't give it any consideration".  The last time defendant was at Shady Side in 1945, he says he told her he had "a peace warrant out" (though in fact he had not) and if she came down there again he would have her arrested.  "So I just told her to keep away, and she has never been back since.  Apparently she believed me."

   He first left her about six months after the marriage. He came in about 8 o'clock in the morning, after an all night card party.  She asked him to leave and he left.  A few days later he returned.  She said she would never ask him to leave again.  "She never did ask me to leave any more.  Over a period of two or three years I left her five times.  Every time I got fed up with[***5] it more and more, week in and week out, and finally it just got to a point where I had to leave." He says he thinks he lived with her "all told for perhaps a year." He says she was domineering, always reminded him of her ownership of the house and her salary, constantly nagged him, rifled his desk by day and his pockets by night, refused [*18] to sign mortgages and other business papers without exacting money from him, embarrassed him and even injured his credit among friends and business acquaintances.  Apparently he kept a bag packed to leave at any moment.  After she ordered him out he says he kept a room at a Washington hotel for three and a half years.  Evidently he left so often that he has no definite recollection of the individual occasions, or even the exact number of them, except his generalization that he "got fed up" and could stand it no longer.  She tells a different story, that he repeatedly left for no reason at all.  It is unnecessary to review their testimony.  Her story is no less plausible than his.  Neither is corroborated.  The judge, who saw and heard the witnesses, held that he had failed to sustain the burden of proof of desertion. We cannot say that[***6] the judge was wrong.  On paper (without seeing or hearing the witnesses) we do not see how he could avoid holding that plaintiff had failed to prove that defendant deserted him when (or after) he left her for at least the fifth time on February 11, 1944.
 
   Counsel says the judge was prejudiced by "smear testimony".  The wife testified that in April, 1942, just after her husband had left her without a word, when she was looking for cigarettes in his suitcase (which he got later, while she was at work), she found a box of contraceptives, which was offered in evidence.  She said they had never used contraceptives. He did not deny or explain this testimony; she was not cross-examined about it.  A neighbor, testifying for her (before she testified) was asked whether, and if so where, she had seen contraceptives in the Thomas house.  On plaintiff's objection the question was excluded.  Counsel says this testimony of the wife is too palpably incredible to call for denial.  The judge did not, and on paper alone we cannot, so summarily dispose of it.  If it were not true, plaintiff could at least have said so.

   A friend of the wife, a subordinate in Government employment, testified that in[***7] the spring of 1943 plaintiff [*19] telephoned her and asked her to go to the races, she asked whether his wife was going and, when told not, declined to go with him, and that later the same day she saw him in his car with a girl in a naval uniform sitting beside him.

   One Sunday in the summer of 1945 the wife, with the same friend and other friends, went to Shady Side and found plaintiff playing cards with a neighbor, an elderly man, and a young woman "scantily attired" in "shorts and a halter", whom he introduced by name.  Upstairs the young woman's clothes (some of which she later put on) were found in plaintiff's bedroom, where defendant also found a photograph [**227] of a blonde, which was offered in evidence.  She says plaintiff said the blonde had been his housekeeper. Plaintiff says the young woman at the house was the last of a week-end house party of six or eight, that he was to drive her to town and later did so, and that when he had a house party the upstairs rooms were assigned to the women and the men slept downstairs and dressed and undressed in the bathhouse.

   About a month later, on a Sunday evening, defendant and some friends went to Shady Side and found[***8] no one in the house except a young woman on a bed, nude, asleep and drunk.  Plaintiff says he had lent the house to friends for the week-end for a house party and he was not there.  He does not know who the nude was.

   A witness testified that plaintiff told her he had a blonde housekeeper and had taken her to New York because he thought she had possibilities as a model. Plaintiff testified that if he ever referred to her as his housekeeper he did so facetiously; she never kept house for him.  In 1945 he had a rooming house in Washington.  The blonde had a room there.  He says that in the spring of 1945 she and another girl employed by the Navy Department had a sixty day period in which they had to wait before they could be re-employed in another job; he let them go down to his house at Shady Side, to clean and fix it up and live free of [*20] charge; they stayed for the sixty days and then left.  While they were there he took the blonde to New York.  She had recommendations to the Powers Model Agency.  He was going to New York on business and agreed to take her with him.  He got hotel reservations, two rooms, at one hotel, but she through a friend got reservations at another, [***9] where they spend the first night; they spent the next night at the other hotel. On the train he introduced her to a "very fine man", who took her out at night and some months later married her. About a week after she went to New York with plaintiff she came back to Shady Side, got her clothes and went back to New York to work.

   Regarding what counsel calls "smear testimony", Judge Michaelson says in his opinion: "When the overall picture presented by the evidence in this case is taken into consideration, the court cannot ignore certain component parts thereof, to wit: the presence of * * * the so-called blonde housekeeper, at the cottage, the contraceptives found in the travelling bag of the plaintiff, the statement by the defendant that she and her husband never used them, the nude woman on the porch, her pair of red slacks and an over-night bag, the statement by the plaintiff that he wasn't serious when he said he was going to have his wife bound to keep the peace, the girl in the naval uniform in Mr. Thomas' car, his hiring detectives to follow the movements of Mrs. Thomas.

   "The least that can be said about some of these details is that they indicate amorous inclinations of the[***10] plaintiff directed towards probable recipients other than the defendant.  The picture is somewhat inconsistent with the actions of one who is professing to be serious in his desires and hopes of effecting a reconciliation."

   Counsel says, (1) this evidence does not prove adultery, (2) if it did, the adultery was condoned (which could only be true of the first incident, unless the wife's testimony as to cohabitation in 1946 is accepted), and (3) therefore it proves nothing.  If we assume the first two [*21] contentions, the third does not follow.  We may assume that the fact that a married man of mature years (if not mature temperament) took a young blonde beauty, his "roomer" and quasi-housekeeper, to New York, where they registered under their own names and had separate rooms, does not prove adultery -- even if she had not immediately met and eventually married a "very fine man".  But we cannot say that in the circumstances the man's wife owed a duty to seek him out and resume cohabitation. Attentions to other women, short of proof of adultery, may sometimes justify a wife in leaving, or not returning to, her husband. Schilbach v. Schilbach, 138 Md. 56, 59, 113 A. 576;[***11] Meeks v. Meeks, 189 Md. 80, 87, 54 A. 2d 334. The so-called "smear testimony" is not without legitimate weight as indicating what kind of people the husband, his friends and (if his testimony is believed) his friends' friends were.

   [**228] The husband's contention that his wife deserted him by refusing to follow him to a new matrimonial domicile might present a question of law if it were based on facts.  The right to select the matrimonial domicile ordinarily seems to be the sole or principal remnant of the husband's dominant status in the common law unity of husband and wife.  But even this right was the correlative of the husband's duty as worker and provider for the matrimonial unit.  When the wife is an equal co-worker and provider, a different question would be presented if she were asked to move thirty-five miles from the workplace of both.  We need not consider that question, as it does not arise on the facts.  This husband did not move the matrimonial domicile; he simply left, for at least the fifth time.

   The only tangible evidence of effort toward reconciliation (other than the wife's testimony as to cohabitation in 1946) relates to the visit of the wife and her[***12] friends to Shady Side in 1945, when they met the week-end guest and the wife found the blonde's photograph.  The husband says he then asked his wife to come there and live with him, she wanted time to consider and was to [*22] telephone him the next day but did not do so, he called her, she began to make conditions (which he does not remember, but which were "not bad") and he concluded that she was trifling.  She says he was to call her, but did not, she called him, he said he was busy and would call back but never did. At the hearing she testified that she was still prepared to take him back, "if he were willing to make an effort, to be the man that I thought I married." It is true, as counsel says, that this is not an unconditional offer, but this condition is virtually implied in every marriage. We recognize, however, that offers and refusals of reconciliation from the witness stand carry little weight. Hornstein v. Hornstein, 195 Md. 627, 638, 75 A. 2d 103, 108.

   We have gone into too much detail about this routine case.  As in so many of the divorce cases that reach us, the parties have made practically no effort to preserve a marriage which has become an increasingly[***13] irksome yoke to both.  The short answer to all plaintiff's contentions is that the case is governed by the rule that divorces should not be granted for light and trivial causes and the rule, of broader application, that the decision on facts of a judge who has seen and heard the witnesses should not be reversed unless clearly wrong.

   Decree affirmed, with costs. 

DONNER et al. v. CALVERT DISTILLERS CORPORATION 
No. 38, October Term, 1950
 
Court of Appeals of Maryland
 
196 Md. 475; 77 A.2d 305; 1950 Md. LEXIS 433

 December  7, 1950, Decided

   SUBSEQUENT HISTORY: [***1]

   Rehearing Denied January 10, 1951.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order affirmed as to Hillard Donner, with costs.  Order reversed as to Joseph Donner, with costs.

CORE TERMS:  injunction, contempt, decree, criminal contempt, producer, dealer, fine, retail, Fair Trade Act, whisky, sales tax, violating, liquor, notice, selling, civil contempt, retailer, remedial, enjoining, fined, sentence, violator, proffer, gate, patent, largest, effective, resale, infringed, punitive 

COUNSEL: John G. Rouse, Jr., and George W. Baker, Jr., with whom were James C. Morton, Jr., and Rouse & Morton on the brief, for the appellants.

   Morris Rosenberg, with whom was William J. McWilliams on the brief, for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Grason, Henderson and Markell, JJ.  Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*480] [**306] On December 11, 1947, the appellee filed its bill of complaint in the Circuit Court for Anne Arundel County against The Mills Cut Rate Liquor Mart, Inc. and Hillard Donner, asking for an injunction enjoining and restraining the defendants, their agents, servants and employees from advertising for sale, offering for sale, or selling distilled spirits and other alcoholic beverages known as "Calvert" or "Carstairs" products at prices lower than the prices heretofore or hereafter established by the complainant for such products, pursuant to agreements or contracts made by complainant with its retail dealers in the State, the schedule of minimum resale retail prices forming a part thereof.  The bill also[***10] prayed that the complainant recover from the defendant all damages, costs and expenses suffered by them due to the unlawful acts of the defendants.  These unlawful acts are recited as being the sale of a fifth gallon bottle of "Lord Calvert" whisky for less than the minimum price fixed by the Maryland Fair Trade Act, Chapter 239 of the Acts of 1937, codified as Sections 102 to 110 of Article 83 of the Code.

   With the bill of complaint was filed as an exhibit, an agreement made by the appellee with James C. Corkran, a retailer in the State, which was stated to be one of [*481] approximately 300 such contracts in force.  There was also filed as an exhibit the appellee's list of minimum resale prices.  At the top of this list is stated: "Bottle Cost To Consumer (Includes All Federal and State Taxes Except as Otherwise Noted)." "Calvert Reserve" is listed at $3.95 a fifth, and it is also stated on the list that the prices are in effect as of May 19, 1947, and will be effective until further notice. There is another notation that prices do not include the Baltimore City sales tax.

   The defendants admitted the allegations of the bill and consented to the passage of a decree, and thereupon[***11] the decree of January 28, 1948 was filed.  That decree permanently and perpetually enjoined and restrained the two defendants, "their agents, servants and employees, and all persons acting under their authority or control" from selling in the State, inter alia, Calvert distilled spirits sold under or bearing the trade marks of "Lord Calvert", "Calvert Reserve", etc., "at prices lower than the prices heretofore or hereafter established by the plaintiff for such products pursuant to the agreements or contracts made by the plaintiff with retail dealers [**307] in the State of Maryland under the authority of the Maryland Fair Trade Act of which the defendants shall have had due notice."

   On January 3, 1949, the appellee filed in the case its petition alleging that the defendants had violated the decree by a sale of a pint bottle of "Calvert Reserve", on December 18, 1948, below the minimum resale retail price established.  Defendants answered saying that they did not wilfully violate the order, and, after testimony, the corporate defendant was, on March 3, 1949, adjudged in contempt for violating the terms of the decree and directed to pay a fine of $250 and costs.  On December[***12] 10, 1949, a second contempt petition was filed by the appellee.  It showed that on May 1, 1949, the liquor license heretofore issued to Hillard Donner, trading as Mills Cut Rate, was re-issued to Hillard Donner and Joseph Donner.  It also stated that in June, 1949, appellee revised its minimum resale retail prices, effective [*482] July 1, 1949.  In that revised price list, as shown by the schedule, "Calvert Reserve" was still listed at $3.95 a fifth, and the same notation about Federal and State taxes and the Baltimore City sales tax was contained in this schedule. It was alleged in the petition that, with full knowledge of these prices and of the injunction, the defendants and Joseph Donner on October 29, 1949, sold a fifth of "Calvert Reserve" for $3.95, whereas the minimum resale retail price was $3.95 plus 8c sales tax, and, on November 1, 1949, sold a fifth of "Calvert Reserve" for $3.75, and again on November 5, 1949, sold a fifth of "Calvert Reserve" for $3.95.  The prayer of the petition was that the two original defendants and Joseph Donner show cause why they should not be punished for contempt, and an order to that effect was passed.  The three parties named [***13]answered, the two original defendants together, and Joseph Donner separately, and testimony was taken before the court on March 3, 1950.  On April 6, 1950, the court filed a memorandum and order finding that Hillard and Joseph Donner had notice of the decree, had notice of the minimum prices established by the plaintiff, and that they both sold liquor at prices less than the established minimum prices, and they were held in contempt of court.  The corporate defendant was not held as it appeared that it was no longer conducting the business.  Hillard Donner was fined $1,500 and Joseph Donner $500.  From this order this appeal comes here.

   The Maryland Fair Trade Act has been before this court in several cases, Goldsmith v. Mead, Johnson & Co., 176 Md. 682, 7 A. 2d 176, 125 A. L. R. 1339; Schill v. Remington Putnam Book Co., 179 Md. 83, 17 A. 2d 175, 22 A. 2d 128; Schill v. Remington Putnam Book Co., 182 Md. 153, 31 A. 2d 467, 32 A. 2d 296; and Hutzler Bros. Co. v. Remington Putnam Book Co., 186 Md. 210, 46 A. 2d 101, 163 A. L. R. 884. These cases had to do with the validity and construction of the act, and the questions involved were raised on injunction suits.  The [***14]case before us is the first case in which we have had [*483] before us an adjudication and fine for contempt for the violation of such an injunction.

   Actions for contempt of court can be either civil or criminal, and the same act may be the subject of both kinds of proceedings.  The distinction was made in the case of Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S. Ct. 665, 48 L. Ed. 997, where the Supreme Court quoted a statement of Judge Sanborn in Re Nevitt, 8 Cir., 117 F. 448, 54 C. C. A. 622.  This quotation was re-quoted by this court in the leading case of Kelly v. Montebello Park Co., 141 Md. 194, 118 A. 600, 601, 28 A. L. R. 33, and is in part as follows: "Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled.  The former are criminal and punitive in their nature, and the government, the courts and the people[***15] are interested in their prosecution.  The latter are civil, remedial and coercive in their nature, and the parties [**308] chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect and enforce."

   In the Kelly case, the question was whether an order imposing fines upon three people who had violated an injunction was appealable.  At the time the case was decided, there was no statutory appeal in contempt cases such as is now provided.  See In re Lee, 170 Md. 43, 46, 183 A. 560. Kelly and his wife had been preliminarily enjoined from erecting a garage.  They disobeyed the order, and, with the third party fined, who was not a party to the original proceeding, but who had knowledge of the injunction, they constructed the garage.  If the order holding them in contempt was civil in its nature, then it was interlocutory, and could only be considered on appeal from a final decree after the latter [*484] had been entered.  On the other hand, if the order was criminal, it constituted an independent and distinct proceeding, even though it was filed in the equity case, and there was no appeal provided[***16] in such a proceeding.  The case was brought to prevent the garage from being erected within 75 feet from the front street line of a lot, but the court held that notwithstanding the interest of the Montebello Park Co. in the enforcement of the building line, the order passed was for a criminal contempt. It said that the offense consisted in the doing of an act forbidden by the writ, and the sentence was not remedial but distinctly punitive. It added that there was nothing in the contempt proceeding indicating that the parties treated it as a proceeding for civil contempt, there was no petition praying for remedial relief, the fines were not made payable to the parties injured, and the only purpose of the order imposing them was to vindicate the authority of the court. The court, in considering the case, discussed the leading case of Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 31 S. Ct. 492, 55 L. Ed. 797, and quoted at length from Mr. Justice Lamar who delivered the opinion in that case.  The quotation in part is as follows: "It is not the fact of punishment but rather its character and purpose that often serve to distinguish between the two classes of cases.  If it is[***17] for civil contempt the punishment is remedial, and for the benefit of the complainant.  But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.  It is true that punishment by imprisonment may be remedial, as well as punitive, and many civil contempt proceedings have resulted not only in the imposition of a fine, payable to the complainant, but also in committing the defendant to prison.  But imprisonment for civil contempt is ordered where the defendant has refused to do an affirmative act required by the provisions of an order which, either in form or substance, was mandatory in its character.  Imprisonment in such cases is inflicted not as punishment, but is intended to be remedial by coercing the defendant [*485] to do what he had refused to do.  The decree in such cases is that the defendant stand committed unless and until he performs the affirmative act required by the court's order."

   In the Gompers case, the respondents were ordered imprisoned for a fixed period, and on appeal, the Court of Appeals of the District of Columbia affirmed, after holding that the proceeding was one for criminal contempt. The Supreme Court reversed, [***18] holding that the contempt proceedings were instituted and titled, tried, and, up to the moment of sentence, treated as part of the original case in equity, that the Bucks Stove and Range Co. was the actual and not the nominal party.  These were not controlling facts, but were to be considered along with others, but the court held that the prayer of the petition was significant and determinative.  That prayer was that the petitioner (that is, Bucks) might have such other and further relief as the nature of its case might require.  The court held that was practically the equivalent of asking for a fine payable to itself, the case was one of civil contempt rather than criminal contempt, and the sentences were erroneously entered as if it were the latter type of proceeding.

   It may be noted that in the case before us, the prayer in the petition contains no suggestion of relief to the complainant [**309] (appellee here), nor any suggestion that there should be any fine or other payment coming to it.

   In a recent case, United States v. United Mine Workers of America, 330 U.S. 258, 67 S. Ct. 677, 695, 91 L. Ed. 884, the defendant, a body corporate, and John L. Lewis, its president, [***19] were restrained from encouraging mine workers to interfere with the operation of the bituminous coal mines by strike or cessation of work.  At the time of this injunction, the United States was operating the mines.  The injunction was temporary, pending the hearing, but before it was heard, the miners commenced to walk out and a full-blown strike was in progress.  Thereupon, the United States filed a petition in the District Court for the District of Columbia, asking that the [*486] United Mine Workers and Lewis be punished for contempt. One defense of Lewis and the union was that the Norris-LaGuardia Act, 29 U. S. C. A. § 101 et seq., prohibited the granting of the temporary injunction. This was overruled by the court, and, after a trial, the defendants were found guilty of both criminal and civil contempt. Lewis was fined $10,000 and the union $3,500,000.  When the case reached the Supreme Court, the majority of the court sustained the conviction and fine against Lewis, but reduced the fine against the union to $700,000 which was for criminal contempt, and made the other $2,800,000 a coercive fine for civil contempt by providing that it should be conditional on the union's [***20]failure to purge itself of contempt within a specified time.  The court held that the Norris-LaGuardia Act did not prevent the granting of the preliminary injunction, but it also held that even had its conclusion on this point been the other way, the District Court had power to preserve existing conditions while it was determining its own authority to grant injunctive relief, and said: "The defendants in making their private determination of the law, acted at their peril.  Their disobedience is punishable as criminal contempt." In discussing this subject, the court quoted at length from the opinion of Justice Holmes in U. S. v. Shipp, 203 U.S. 563, 27 S. Ct. 165, 51 L. Ed. 319, and mentioned a number of other Supreme Court cases, finally stating: "We insist upon the same duty of obedience where, as here, the subject matter of the suit, as well as the parties, was properly before the court; where the elements of federal jurisdiction were clearly shown; and where the authority of the court of first instance to issue an order ancillary to the main suit depended upon a statute, the scope and applicability of which were subject to substantial doubt." The court also clearly distinguished[***21] the difference between civil and criminal contempt, although it held that both might be included in the same case, and said: "It does not follow, of course, that simply because a defendant may be punished for criminal contempt for [*487] disobedience of an order later set aside on appeal, that the plaintiff in the action may profit by way of a fine imposed in a simultaneous proceeding for civil contempt based upon a violation of the same order.  The right to remedial relief falls with an injunction which events prove was erroneously issued, Worden v. Searls, supra, 121 U.S. [14] at pages 25, 26, 7 S. Ct. [814] at page 820, 30 L. Ed. 853; Salvage Process Corp. v. Acme Tank Cleaning Process Corp., 2 Cir., 1936, 86 F. 2d [725] 727; S. Anargyros v. Anargyros & Co., C. C., 1911, 191 F. 208; and a fortiori when the injunction or restraining order was beyond the jurisdiction of the court.  Nor does the reason underlying United States v. Shipp, supra, compel a different result.  If the Norris-LaGuardia Act were applicable in this case, the conviction for civil contempt would be reversed in its entirety."

   In the case of Cassidy v. Puett Electrical Starting [***22]  Gate Corp., 182 F. 2d 604, decided by the U. S. Court of Appeals for the 4th Circuit, on May 25, 1950, it appeared that the Puett Corporation had brought an action against a Maryland corporation and the United Starting Gate Corporation, alleging that the gate for starting horses at races used by the defendants infringed complainant's patents for a similar gate. The District Court held the Puett patents valid and that one of them was infringed by the United Starting [**310] Gate Corporation, and enjoined the defendants and their officers from using this gate. Cassidy, who was president of United and was also acting under contract as a starter at Hialeah race track in Florida, resigned as president, but continued his activities as starter at Hialeah, and continued to use the United gate. A show cause order was issued, and, at a hearing before the District Court, United and Cassidy were held guilty of contempt for violating the terms of the injunction, and were each fined. They appealed this contempt order.  An appeal was also taken from the injunction. In the injunction case, the Circuit Court of Appeals held that the patent which the District Court had found infringed the [***23]Puett patent, did not infringe it in fact, and [*488] it therefore reversed the District Court.  Harford, etc. Ass'n v. Puett, etc. Corp., 4 Cir., 182 F. 2d 608. In the contempt case, however, the court said: "We are this day handing down an opinion in the patent case * * *, out of which the contempt proceeding arose.  In that opinion we are reversing the holding of the District Court that the United gate infringed the Whann patent. This, however, in no wise affects the judgment of the District Court that Cassidy and United were guilty of contempt. At the time of the contemptuous acts, the injunction decree was in full force." [182 F. 2d 608.]

   We have discussed the underlying bases for civil and criminal contempts and have cited the foregoing cases because the principal contention made by the appellants here is that in their trial there was no proof that there existed at that time an agreement or contract made by the appellee with retail dealers in the State under the authority of the Fair Trade Act of which they, the defendants, had due notice. They say that there was a failure of proof in this regard, and therefore their conviction should be set aside.

   The proceeding[***24] before us was one for criminal contempt. It was clearly not remedial, nothing was asked by way of recompense to the appellee, and the court did not attempt to give them any recompense by way of fine or payment.  The appellee brought the matter to the attention of the court, but it did so for the purpose of vindicating the previous injunction, and the mere fact that the petition was filed in the same proceeding as the injunction does not, as we have shown, determine its character.  That was determined by what was asked, and, in this case, by what was done.

   In the case of Gompers v. Bucks Stove & Range Co., supra, the Supreme Court said: "* * * it is certain that in proceedings for criminal contempt the defendant is presumed to be innocent, he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself." (See also Note, 49 A. L. R. 975.) That does not mean, however, that in such a case, [*489]the proof must go beyond what is necessary to prove the contempt, which is that the defendant disobeyed an order of the court.  That order may be based upon erroneous facts as found in the Cassidy case, supra, or an erroneous conception[***25] of the law, such as was claimed in the United Mine Workers case, supra.  Nevertheless, it must be obeyed until such time as it is stricken out on application, or reversed on appeal, or otherwise ceases to be a vital and subsisting direction of a court with proper jurisdiction over the parties to the case.

   The appellants, however, say that the decree which they disobeyed in this case was passed on January 28, 1948, and their violations were in October and November, 1949; that the decree was based upon proof of the Corkran contract which was made March 13, 1947 for a period of one year (renewable, however, from year to year, unless the parties indicate in writing their desire not to have it renewed), and the appellee had the right to cancel this contract on 24-hour notice. Under these circumstances, they contend that before they could be held liable in a semi-criminal proceeding, it was obligatory to establish that a contract actually existed in October and November, 1949, when the alleged violations occurred.  The appellee says in reply that there was sufficient evidence offered that the appellee was operating under the Fair Trade Act at the time of these [**311] violations, [***26] and they cite the following facts of which they state the proof was uncontradicted.  On January 3, 1949, the appellant, Hillard Donner, and the Mills Cut Rate were cited for contempt, and on March 3, 1949, the corporation was adjudged guilty of contempt and fined $250; on June 17, 1949, there was mailed to the trade, including the appellants, a new price list effective July 1, 1949, with a letter from the president of the appellee, and a restatement of the appellee's Fair Trade policy in which was stated that it was the appellee's intention to continue its Fair Trade contracts in force and to enforce its minimum prices, and the proof in the case showed that the price in October and November was [*490] the same as that listed at the time of the Corkran contract.

   There is, within certain limits, a presumption of fact that something which has been proved to exist continues to exist for a reasonable time, depending on what it is and the circumstances of the case.  This is known as the presumption of continuance, and it is held to be not a legal presumption, but a matter of the burden of proof.  In other words, from the circumstances and facts of each particular case are to be determined[***27] whether a necessary fact, once proved, has to be shown by the prosecution to continue to exist, or whether there is a presumption of such continuance, and the burden shifts to the defendant to prove that it no longer exists.  Wharton's Criminal Evidence, Vol. I, Paragraph 142.  In the case before us, and under the circumstances, it may well be inferred that the Corkran contract, or any other of the approximately 300 contracts which appellee alleged it had in its petition for the original injunction, continued in force, or that new Fair Trade contracts were in force a year and nine or ten months later, especially since the corporation of the appellants had been fined seven or eight months before, for violating the decree, and it made no such suggestion then.

   Appellants also contend that there was no proof that at or before the time of the alleged violations they had due notice of any prices established, largely because the violations in the original petition were sales of "Lord Calvert" whisky and not of "Calvert Reserve".  We find no merit in this contention.  They also contend there was no proof that the appellants knowingly or wilfully sold "Calvert Reserve", and they state, among[***28] other things, that the resale price was not shown to be $3.95 plus sales tax, but might be construed under the prices listed as $3.95, including sales tax. There is, however, one sale at $3.75 made by Hillard Donner.

   Another contention upon which the appellants lay considerable stress is that the court erred in excluding certain testimony which was offered by them with respect [*491] to sales below the Fair Trade price made by other dealers. The witness Ciccarone, a liquor retail dealer in the City of Annapolis, was asked: "Have you sold any Calvert products at less than the price established by the distillers?" He was not allowed to answer this question.  Then he was asked: "Would you deny that on February 26, 1950, you sold a fifth of Calvert Reserve whisky for less than the Fair Trade price?" He was not permitted to answer this question, and then the proffer was made that had he been allowed to answer the question, he would have admitted that he did make such a sale on such a date. The appellants further made a proffer in the following words: "We have issued subpoenas for a number of retail liquor dealers in the city of Annapolis who are here in court.  We would like[***29] to make this proffer that were these witnesses placed on the stand and permitted to answer the question, they would admit that at one time or another, they have sold a fifth of Calvert Reserve at less than the Fair Trade price." This proffer was objected to and the objection sustained.  Thereafter, Mr. Theodore Kates, State manager for Maryland of the Calvert Distilling Corporation, was asked whether he observed in the window of Chick's Liquor Store on Main Street a display of "Calvert" with a sign saying: "Selling Calvert Reserve for $3.49".  He was not allowed to answer this or another similar question, or a question whether he had received complaints that Chick's Liquor [**312] Store was advertising "Calvert Reserve" at less than the Fair Trade price.  Appellants then proffered that if the witness were allowed to testify, his answer would be that there was a display of "Calvert Reserve" whisky, that it was displayed and advertised in the window of Chick's Liquor Store for the price of $3.49 during the spring or early summer of 1949. This proffer was objected to and the objection sustained.

   In the case of Hutzler Bros. v. Remington Putnam, supra, we said that the Act [***30] requires by implication that the prices fixed in a Fair Trade contract shall be uniform in any competitive area, and that in the performance of [*492] the agreement, the producer must refrain from causing any unjust discrimination among the retail dealers. He is required to use reasonable diligence to see that his products are not sold to a retailer who cuts prices after the producer has notice of such violation, and where price cutting has been general and long continued, the failure of a producer to take effective measures to prevent such violation should be regarded as a waiver or abandonment of the rights conferred by the contract.  We also said that the right of a producer to an injunction against a violator is not defeated by the fact that there may be some violators who have not been sued.  There is no mandatory provision in the Fair Trade Act requiring a producer to take legal action, and it would be impossible to enforce one's rights under a Fair Trade agreement, if as a prerequisite to relief, it were necessary to institute suit to enjoin all violators simultaneously.

   It is obvious that the proffered testimony, if admitted, would not be sufficient to put the appellee[***31] in such a situation that the court could say that it had waived or abandoned its rights under the contract.  If another retail dealer sold for less than the contract price, or even if the appellee knew that one sold at less than the contract price, that would not bar relief against the appellants.  The proffer as to an unspecified number of liquor dealers in Annapolis who were in court did not show that they would state the time at which they had sold the "Calvert Reserve" at less than the Fair Trade price, whether before or after the injunction. It did not purport to prove any knowledge on the part of the appellee that this had occurred at any time, nor did it show whether or not any of those liquor dealers had been enjoined or were defendants in injunction cases brought by the appellee.  Further, it did not show the number of those who would so testify, nor what proportion of the total liquor dealers in the city of Annapolis were prepared to admit their violations.  These reasons why the testimony was properly refused go to the heart of the question.  The appellee cannot be held to have waived or to have abandoned [*493] its rights unless, at the least, it is shown that it [***32]knew of substantial violations and made no effort to prevent them. The proffered evidence, if admitted, would not have proved any such situation.

   Further objection is made that the fines were excessive.  It appears that after the court heard the case, it asked for information from the State Comptroller on the size of the business operation of the appellants.  In response to this request, the Comptroller's office advised the court that all retail licensees are required to file with that office reports showing their purchases of all distilled spirits.  The letter from the Comptroller's office listed by location, but not by name, the ten greatest purchasers who reported during the last six months of the calendar year 1949.  The appellants purchased 10,929.72 gallons, which was the largest amount of any of such purchases.  The next retailer purchased 7,000-odd gallons, and the tenth in size purchased a little over 5,000 gallons.  This would indicate that the appellants were among the largest, if not the largest, retail liquor dealers in the State of Maryland, and, under such circumstances, the fine would not seem to be excessive.  The court, in determining the sentence in a criminal[***33] case, may examine pertinent official records.  Murphy v. State, 184 Md. 70, 40 A. 2d 239.

   [**313] We think, however, that the price lists furnished by the appellee may unwittingly have lent themselves to the construction that the Fair Trade price included the State sales tax. Under these circumstances, since Joseph Donner sold only at the price listed including the tax, and since this is a semi-criminal proceeding, we are unwilling to hold him guilty.  The order, therefore, as to Joseph Donner will be reversed.

   Order affirmed as to Hillard Donner, with costs.  Order reversed as to Joseph Donner, with costs. 

SHUB et al. v. SIMPSON, Secretary of State 
No. 105, October Term, 1950
 
Court of Appeals of Maryland
 
196 Md. 177; 76 A.2d 332; 1950 Md. LEXIS 403

 October  12, 1950, Decided  
 November  1, 1950, Filed

   SUBSEQUENT HISTORY: [***1]

   Opinion filed November 1, 1950.

PRIOR HISTORY:  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Appeals by Marshall Jones and Sam Fox dismissed; order affirmed as to Louis Shub and reversed as to Thelma Gerende.

CORE TERMS:  candidate, oath, qualification, violence, election, certificate, subversive, oath of office, ballot, overthrow, public office, nomination, Subversive Activities Act, revolution, declaration of rights, prescribed, ineligible, elected, voters, electors, prescribe, machine, invalid, voting, constitutional amendment, Ober Act, oath prescribed, nominated, governor, duty

COUNSEL: I. Duke Avnet and Harold Buchman, with whom was William H. Murphy on the brief, for the appellants.

   J. Edgar Harvey, Deputy Attorney General, with whom was Hall Hammond, Attorney General, on the brief, for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson and Markell, JJ. Marbury, C. J., delivered the opinion of the Court.  Markell, J., delivered the dissenting opinion, as to Louis Shub, in which Henderson, J., concurs.

OPINIONBY: MARBURY

OPINION: [*184] [**334] Louis Shub, duly nominated candidate of the Progressive Party of Maryland for the office of governor, Sam Fox, duly nominated candidate of the same party for office of United States senator, Marshall Jones, duly nominated candidate of the said party for the office of representative in Congress for the Fourth Congressional District, and Thelma Gerende, duly nominated candidate of the said party for the office of representative in Congress for the Second Congressional [**335] District, filed in the Circuit Court for Anne Arundel County on September 14, 1950, their petition for a writ of mandamus against the Secretary of State.  They alleged [***13]that they possessed the necessary qualifications for the respective offices for which they had been nominated and had presented their certificates of nomination on August 18, 1950 (Gerende on August 31, 1950) with the proper filing fees to the Secretary of State who is charged with the duty of receiving such certificates, but that said certificates [*185] were rejected because of the failure of all of the petitioners to file the affidavit required by Sec. 15 of Article 85A of the Code, as enacted by Chapter 86 of the Acts of 1949, officially called the Subversive Activities Act of 1949, and familiarly known to the citizens of the State as the "Ober Act".  The petition showed that some time after the said rejection, the petitioners Fox and Jones filed the required affidavits under protest, but the other petitioners did not.  They ask that the Secretary of State be directed by writ of mandamus to accept the nomination of the petitioners without filing the affidavits, contending that the provisions of the Ober law requiring them are invalid.

   The case was heard before Associate Judge Clark of the Fifth Judicial Circuit upon a demurrer filed by the Secretary of State.  He sustained[***14] the demurrer and dismissed the petition on October 9, 1950 because the petitioners could not amend.  From that order, all of the petitioners have appealed.

   We advanced the case on account of the necessity of having the matter determined before the election and in time to make any necessary insertions in the ballots and voting machines. The case was fully argued before us on October 12, and on the same day, we passed a per curiam order by the terms of which the appeals of Jones and Fox were dismissed; the order of the court was affirmed as to Shub, but reversed as to Gerende.  The reasons for that decision are now given.

   It is perfectly apparent that as to Jones and Fox, the case is moot.  They chose to make affidavits rather than stand on the legal questions they raised, and their certificates were accepted.  As to them, it does not now matter whether the action of the Secretary of State in declining to receive those certificates without the affidavits was correct or not.  For that reason their appeals were dismissed.

   The petitioner Shub is a candidate for a state office.  The petitioner Gerende is a candidate for a Federal office, and there is a distinction between the two cases[***15] [*186] which, in our opinion, makes Sec. 15 operative as to Shub, but not as to Gerende.

   Chapter 86 of the Acts of 1949 has already been before this court in two cases, Hammond v. Lancaster, 194 Md. 462, 71 A. 2d 474, 481, and Hammond v. Frankfeld, 194 Md. 487, 71 A. 2d 482. The first of these cases was a class suit brought by various professors and other citizens who were taxpayers of the State.  The second suit was brought by the chairman and labor secretary of the Communist Party who also sued as taxpayers.  The majority of the court held that in neither case did the complainants have any standing to raise the questions they did, except that as to the validity of the subsequent act, Chapter 310 of the Acts of 1949, which put Chapter 86 in effect at once.  The court, in the Hammond-Lancaster case said: "We conclude that, upon the adoption of Chapter 310, Chapter 86 became effective on April 22, 1949, as an emergency law and remains in force unless and until repealed by the voters." All of the questions which are raised in the present case were fully and expressly argued in the two previous cases, although no decision was made on them.  The question of the validity[***16] of Sec. 15 is now clearly raised before us by parties who have a direct interest in its decision.  It reads as follows: "No person shall become a candidate for election under the provisions of Article 33 of the Annotated Code of Maryland to any public office whatsoever in this State, unless he or she shall file with the certificate of nomination required by the foregoing Article, an affidavit that he or she is not a subversive person as defined in this article; provided that, in the case of certificates of nomination for President or Vice President of the United States, the affidavit may be made on behalf of such candidates by those persons who file the certificate of [**336] nomination for such candidates. No certificate of nomination shall be received for filing by any Board of Supervisors of Elections or by the Secretary of State of Maryland unless accompanied by the affidavit aforesaid, and there shall not be entered upon any ballot or voting machine at any [*187] election the name of any person who has failed or refused to make the affidavit aforesaid."

   It is contended that the affidavit required by this section is contrary to Article 37 of the Maryland Declaration[***17] of Rights. That article provides that no religious test ought ever to be required as a qualification for any office of profit or trust in this State other than a declaration of belief in the existence of God, "nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution." The oath prescribed by the Constitution is found in Sec. 6 of Article 1, which states that every person elected or appointed to any office of profit or trust under the Constitution or under the laws pursuant thereto shall, before he enters into the duties of such office, take and subscribe the oath or affirmation therein set out.  This oath is to the effect that the subscriber will support the Constitution of the United States, that he will be faithful and bear true allegiance to the State of Maryland and support the Constitution and laws thereof, and that he will to the best of his skill and judgment diligently and faithfully, without partiality and prejudice, execute his office according to the Constitution and laws of this State, and, if he is a governor, senator, member of the House of Delegates, or a judge he is to further state that he will not directly or indirectly[***18] receive the profits or any part of the profits of any other office during his term.  The appellants say that the affidavit required by Sec. 15 of Article 85A is an additional oath of office, containing matter not included in Article 1, Sec. 6, and therefore prohibited by Article 37 of the Declaration of Rights.

   The purpose and history of Article 37 was discussed by Chief Judge McSherry in the case of Davidson v. Brice, 91 Md. 681, 48 A. 52. It was there held that the omission from the Declaration of Rights of 1867 of the authority contained in every antecedent declaration of rights giving the Legislature the power to impose an official oath was deliberate, and its purpose was to permit the citizens of the State who had been in sympathy [*188] with the Confederate States of America to hold office without having to take the test oaths which had previously been required by the Legislature under the Constitution of 1864.

   It may be noted that Article 37 does not prohibit candidates for office from being required to make affidavits as to their qualifications. It has been the practice and custom and statutory requirement for many years to demand from candidates at the time of[***19] filing for office certificates under oath with respect to their various qualifications. Such provisions are set out in Article 33 of the Code, and these sworn certificates have never been considered as additional oaths of office.  The filing of such certificates is made a prerequisite to the placing of a candidate's name upon the ballots or in the voting machines. (Art. 33, Sec. 53(a) as enacted by Chapter 425 of the Acts of 1949).  Their requirement is a method by which the Legislature is executing what has been held to be its inherent power to safeguard elections. Kenneweg v. Allegany County Commissioners, 102 Md. 119, 62 A. 249; Munsell v. Hennegan, 182 Md. 15, 31 A. 2d 640; Hennegan v. Geartner, 186 Md. 551, 47 A. 2d 393. The purpose is to keep from the ballots and voting machines the names of those who are ineligible for office.

   In the case of Rasin v. Leaverton, 181 Md. 91, 28 A. 2d 612, 614, this court upheld the action of the Board of Supervisors of Elections of Kent County in refusing to place upon the ballot the name of a candidate for state's attorney who was not constitutionally eligible for that office.  In so holding, this court, speaking through Chief[***20] Judge Bond, referred to the case of Hummelshime v. Hirsch, 114 Md. 39, 79 A. 38, involving the election of a member of the City Council of Cumberland, and, speaking of that case, said: "It was held that the candidate was disqualified, the court considering that the obvious purpose of the provision, and of that requiring candidates for nomination at the primary election to swear that they were qualified to hold office, was [**337]to secure [*189] to voters or electors the right to vote for those qualified under the charter." (Emphasis supplied.)

   In Hummelshime v. Hirsch, 114 Md. 39, 79 A. 38, 45, the full statement on this subject is as follows: "What could be the object of requiring the candidates for nomination at the primary election, before their names go on the ballots, to swear that they are qualified to hold the office, except to eliminate from the primary contest those who do not possess the required qualifications, and to thereby secure for the final election candidates having the requisite qualifications? The obvious purpose of these provisions is to secure to the voters or electors the right to vote for those qualified under the charter for the[***21] offices for which they are candidates, * * *."

   It therefore appears that the Legislature has performed a duty, owing to the voters of the State in requiring from those who seek their suffrages proof in advance, so far as it is possible to get it, that if they are elected, they will be able to hold the office they seek.

   It is earnestly contended, however, that the affidavit required by Sec. 15 is not only an affidavit for the purpose of keeping the ballots and voting machines clear of unqualified persons, but it is in effect an additional oath of office because some of those who take it must be elected to the respective offices voted for, and those particular persons are thereby required to take two oaths of office; one, the constitutional oath, and the other, the oath to the affidavit required by Sec. 15.  Except for one other consideration which we are about to discuss, there might be some force in this argument if the affidavit was required of only those elected, but it seems clear that both the purpose and the actual wording of Sec. 15 negative this contention.

   The other consideration is that before the passage of Chapter 86 of the Acts of 1949, the voters of this State had, [***22] in November, 1948, amended the Constitution by adding to it Article 15, Sec. 11, which reads: "No person who is a member of an organization that advocates the overthrow of the Government of the United States or [*190] of the State of Maryland through force or violence shall be eligible to hold any office, be it elective or appointive, or any other position of profit or trust in the Government of or in the administration of the business of this State or of any county, municipality or other political subdivision of this State."

   A person who advocates the overthrow of the Government of the United States, or of this State, through force or violence could scarcely in good faith, take the constitutional oath of office prescribed by Article 1, Sec. 6, and the Legislature has taken pains to see that the name of any such unqualified person shall not appear on the ballot.

   Appellants contend that the wording of Sec. 15 goes much further than the constitutional amendment, and that if Sec. 15 is viewed as an implementation of the constitutional provision, it will be seen that its provisions exceed those made by the people in that amendment.  They attempt to justify this contention by the[***23] fact that the affidavit required by Sec. 15 is that the person making it is not a subversive person as defined in Chapter 86, and that the definition of "subversive person" as contained in that act is any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises, or teaches, by any means, any person to commit, attempt to commit, or aid in the commission of, any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of the constitutional form of the Government of the United States or of the State of Maryland, or any political subdivision of either of them, by revolution, force, or violence, or who is a member of a subversive organization or a foreign subversive organization.  They contend that the addition of the word "revolution" to the words "force or violence" prohibits any one from advocating or teaching the alteration of the form of government by a peaceful revolution; that is, by some change which would be revolutionary in its nature, but which would not be accomplished by force or violence. [*191] With that contention we are unable to agree.  It is quite clear from the connotation that[***24] "revolution" as used in Section 15 does not mean a peaceful revolution, but means a revolution accomplished by force or violence. These words are to be [**338] construed together.  Were there any doubt of this, it would be resolved by the title which uses the words "violence or other unlawful means".  The title of a statute, in a doubtful case, will limit an act to what the title intends. Baltimore v. Deegan, 163 Md. 234, 161 A. 282. Buck Glass Co. v. Gordy, 170 Md. 685, 185 A. 886. Brooklyn Apartments, Inc., v. Mayor & City Council of Baltimore, 189 Md. 201, 55 A. 2d 500.

   Another contention that Section 15 is more extensive than Article 15, Section 11, is that a subversive person also means a member of a foreign subversive organization, and the definition of a foreign subversive organization is any organization directed, dominated, or controlled directly or indirectly by a foreign government, the purpose of which is to advocate the overthrow, destruction, or alteration of the constitutional form of the government, and to establish in its place any form of government the direction and control of which is vested in the domination of any foreign government, etc.  They[***25] note the absence in this definition of any reference to force or violence, and say that this would prohibit, for instance, a labor organization which is under the control of the labor government of Great Britain from advocating an alteration or change in the form of the government of the United States by means of a constitutional amendment which would give some dominion over this country by Great Britain.  It is easy to be meticulous when you are attempting to dissect a statute and are trying to evade its provisions, but the proper rules of statutory construction require that all of its provisions be interpreted in accordance with the intent and meaning of the entire enactment. The Legislature has indicated its purpose in passing Chapter 86 not only by the title, but also by the preamble.  This preamble recites the existence of a world Communist movement for domination [*192] by a foreign power, and the methods used, and the objects attempted to be attained by that power are, in the opinion of the Legislature, a sufficient basis of the necessity for the passage of the act.  An act passed by the Legislature for such a purpose comes to us "encased in the armor wrought by prior[***26] legislative deliberation." Bridges v. California, 314 U.S. 252, at page 261, 62 S. Ct. 190 at page 193, 86 L. Ed. at page 202, approved and quoted in American Communications Association v. Douds, 339 U.S. 382, 401, 70 S. Ct. 674, 685, 94 L. Ed. 925, 945, to which is added by Chief Justice Vinson, who delivered the opinion in the latter case, the words: "The deference due legislative determination of the need for restriction upon particular forms of conduct has found repeated expressions in this Court's opinions." The purpose of Chapter 86, as shown by its title and throughout its provisions, is not to restrict freedom of speech or thought, nor does it do so. The purpose of Section 11 of Article 15 of the Constitution, and of Chapter 86 of the Acts of 1949, is the same and they are to be construed together to effect that purpose.  That is to prevent infiltration in our state, county, or municipal governments of persons who are engaged in one way or another in the attempt to overthrow the government by force or violence.  We construe the affidavit required by Sec. 15 with respect to those desiring to become candidates for public office as a means of preventing such infiltration [***27]at its initial stage, thereby preventing confusion among the electors and that it is, in no sense, an additional oath of office.

   As representing the contrary view, the recent case of Imbrie v. Marsh, 3 N. J. 578, 71 A. 2d 352, 355, decided by the Supreme Court of New Jersey is cited. That case represents a construction of the New Jersey constitution and statutes by the highest court of that state and is in no sense binding upon us, although it is entitled to respect both by reason of the ability of the members of the court and because of its reasoning.  We do not [*193] think, however, that it is on all fours with the case we are considering.

   The New Jersey constitution prescribes an oath for members of the Legislature and another similar oath for all state officers.  It contains no prohibition against additional legislative oaths of office.  The Legislature, however, attempted to require another oath of all persons required by law to give assurance of fidelity to the Government of the State.  This oath stated among other things that the affiant did not believe in or advocate the use of force or violence to overthrow [**339] the government.  A similar oath was required [***28]by another statute to be taken by the Governor and every person elected or appointed to any public office or in any public position.  Another statute required all candidates for nomination or election to any public office to subscribe and file such an oath, and provided further that should any candidate fail to file the oath, his nomination or election would be void.  A fourth statute provided that in the event of the failure of any candidate for public office to so subscribe and file there should be printed under his name on the ballot a legend "Refused Oath of Allegiance".  It will be noted that the oaths were required not only of candidates, but of those elected. In the majority opinion, delivered by Chief Justice Vanderbilt, no distinction is made, or even suggested, between candidates and elected officials.  The oaths are all treated as oaths of office, and the question before the court and its answers were thus stated:

   "Are these oaths, embodied in the Constitution of 1947, exclusive as to the members of the Legislature and State officers and therefore beyond the power of the Legislature to add to, subtract from, or in anywise vary?

   "To ask the question is to answer it, for[***29] if the Legislature may alter these oaths or any other provisions of the Constitution prescribing the qualifications for office (such as age, citizenship, residence and prohibition of dual office holding) it would to the extent of such variance nullify the Constitution.  The maxim expressio unius est exclusio alterius, is peculiarly applicable here.  Such has [*194] been the current not only of decisions in this State and elsewhere but of the authorities on public law."

   It is not necessary for us to disagree with this general statement of statutory construction, although Chief Justice Marshall, in speaking of the oath exacted in the Constitution of the United States, said that he would be charged with insanity who should contend that the Legislature might not super-add to the oath directed by the Constitution such other oath of office as its wisdom might suggest.  M'Culloch v. Maryland, 4 Wheaton 316, at page 416, 4 L. Ed. 579, at page 604. The prohibition against another oath of office in Maryland is not implied, but is directly and explicitly stated in the Constitution itself.

   The result of the New Jersey decision was to hold unconstitutional so much of the challenged[***30] legislation as was applicable to the Governor, the members of the Legislature and candidates for those offices.  The minority opinion of two justices agreed with this conclusion as to members of the Senate and General Assembly, but did not agree that the statutes were unconstitutional which were applicable only to candidates for office.  These, it held, were valid means of informing the voters of the beliefs of candidates.

   The essential difference between this case and the one before us is that there is no constitutional provision in New Jersey, similar to our Article 15, Section 11, providing a loyalty qualification for the holding of public office. Had there been, it is submitted that the challenged oaths, whether considered as "oaths of office" or not, could not have been stricken down for the sole reason given by the court, namely that the Legislature was prescribing other and different qualifications for office than those set out in the constitution.  The New Jersey decision, therefore, is not authority against the affidavits we are here considering.

   Appellants also attack Chapter 86 as a whole on various grounds, all of which were discussed in appellee's brief filed in the[***31] Hammond v. Lancaster case, supra, to which [*195] reference is made by appellants here.  These grounds are that it abridges the fundamental rights of freedom of speech, press and assembly, that it is vague and indefinite and therefore violates due process, that it is a bill of attainder, that it attempts to establish guilt by association, and other similar contentions.  It is contended that the act is basically inseparable in its provisions, and, therefore, it should be stricken down in its entirety.

    If we assume that these appellants have any standing in this case to make these contentions (which we do not decide) we think they have been recently fully discussed and disposed of in three recent decisions by the Courts of the United States.  These are [**340] Dunne v. United States, 8 Cir., 138 F. 2d 137 and United States v. Dennis, 2 Cir., 183 F. 2d 201 passing upon the Smith Act, 18 U. S. C. A. § 2385, and American Communications Association v. Douds, supra, 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925, which approved the oath required by the Taft-Hartley Act, 29 U. S. C. A. § 141 et seq.  We do not think it necessary to repeat what has been said in these[***32] cases.  We are unable to find that the statute before us, on its face, violates any of the fundamental rights of appellants, or that it is susceptible of an interpretation which makes it necessary for the courts to strike it down.  On the contrary, there is a presumption in favor of its validity, and there has been presented to us no argument which impairs or rebuts that presumption.

   The foregoing discussion is applicable to the case of the appellant Shub, but a different situation exists as to the appellant Gerende.  The qualifications of a representative in Congress are set out in Section 2 of Article I of the Constitution of the United States.  A representative must have attained the age of 25 years, must have been seven years a citizen of the United States, and must, when elected, be an inhabitant of the state in which he shall be chosen. No other qualifications are prescribed, and by Section 5 of Article I, it is provided that each House of Congress shall be the judge of the qualifications [*196]of its own members.  Members of Congress take the oath prescribed by Article VI of the Constitution of the United States, not the oath required by Section 6 of Article 1 of the[***33] Maryland Constitution.  Article 37 of the Maryland Declaration of Rights does not apply to them.  Nor does Section 11 of Article 15 of our constitution apply, because that is limited to offices and positions under the government of this State or its counties, municipalities, or other political subdivisions.

   While Section 15 of Chapter 86 might in its terms be broad enough to cover candidates for Congress, such a construction would bring it in conflict with the Federal constitution, and we think therefore it cannot be properly so construed. Candidates for Federal offices must comply with state election laws before their names can be placed upon the ballot, Vaughn v. Boone, 191 Md. 515, 62 A. 2d 351, but this does not authorize the State to include in the election or other laws of the State any requirement which would add additional qualifications to the office.  There is nothing in the United States Constitution which in terms prevents a member of Congress from being a subversive person who seeks to overthrow the government of the United States by force or violence. If that is a disqualification, it must be determined by Congress itself and not by a state legislature or by a[***34] state court.  This conclusion is supported by the applicable decisions.

   Thus in Minnesota, it has been held that a felon, disqualified for public office under the state constitution, is not thereby prevented from being placed upon the nominating election ballot for the office of United States senator. State ex rel Eaton v. Schmahl, 140 Minn. 219, 167 N. W. 481. In Oregon, a judge, prohibited by his oath of office from accepting any other office during his term, was held not to be thereby barred from becoming a candidate for the office of representative in Congress.  Ekwall v. Stadelman, 146 Oregon 439, 30 P. 2d 1037. In that case there is quite a full discussion of the subject, with citations from Story, Kent and Cooley, and the [*197] case of Lamar v. U. S., 241 U.S. 103, 36 S. Ct. 535, 60 L. Ed. 912, is cited as authority for the conclusion that a representative is an officer of the United States and not of the state.  In New York, Earl Browder filed a nominating petition as a candidate for representative in Congress and it was contended that he was ineligible as a candidate because he openly espoused international communism, and that it was against public policy[***35] for him to have a seat in the Congress of the United States.  The New York court said that was not a disqualification under the United States Constitution.  It was also contended that Browder had been convicted in the United States Court and was therefore barred under the state law, but the court said that this disqualification did not extend to Federal offices.  In re O'Connor, 173 Misc. 419, 17 N. Y. S. 2d 758. Similarly, it was held in Washington that the State could [**341] not prevent a judge from running for Congress by a statute which made him ineligible for any other office or employment during his term.  State v. Howell, 104 Wash. 99, 175 P. 569. In Nebraska, it was held that while the election laws of that state prohibited a defeated candidate for governor from having his name put on the ballot by petition for the office of United States senator, the court was careful to say that this was a method of nomination which the state law controlled, and that, while he could not have his name printed on the official ballot, his name could be written in, and if sufficient numbers of people voted for him, he could be elected. State v. Swanson, 127 Neb. 806, 257 N. [***36] W. 255. In Wisconsin, it was held that Joseph R. McCarthy, who, as a judge, was prohibited from holding any office during his term, was not thereby prohibited from being nominated by the Republican Party for the office of United States senator. State v. Zimmerman, 249 Wis. 237, 24 N. W. 2d 504. A similar ruling was made in Arizona.  Stockton v. McFarland, 56 Ariz. 138, 106 P. 2d 328. In Wyoming, it was held that a provision that the governor should not be eligible for any other office during his term did not prevent him [*198] from becoming a member of the House of Representatives or the United States Senate.  State v. Crane, 65 Wyo. 189, 197 P. 2d 864.

   It appears, therefore, upon reasoning and authority, that a state cannot in any manner impose additional qualifications upon a candidate for representative in Congress, but that any one who is qualified under the United States Constitution may become a candidate, subject, of course, to reasonable provisions of time and method of getting his name upon the ballot. The making of the affidavit required by Section 15 is a reasonable safeguard of our state elections because it prevents the names of ineligible persons from[***37] being presented to the voters. That reason, as we have shown, does not apply to a candidate for representative in Congress because there is no such disqualification as to that office as there is to our state offices.  Whatever may be the subversive activities of such a candidate, she is not ineligible unless the House of Representatives itself so holds.  We have therefore been unable to approve the action of the trial judge in denying the appellant Gerende a place upon the ballot or in the voting machines, but have concluded that he erred in that respect and that she is entitled to have her name presented to the electors without making the affidavit required by Section 15.

DISSENTBY: MARKELL

DISSENT: Markell, J., delivered the following dissenting opinion, as to Louis Shub, in which Henderson, J., concurred.

   Section 6 of Article 1 of the Constitution of Maryland provides: "Every person elected or appointed to any office of profit or trust, under this Constitution, or under the laws, made pursuant thereto, shall, before he enters upon the duties of such office, take and subscribe the following oath or affirmation: [setting out the words of the oath]." Section 1 of Article 6 requires the[***38] Comptroller and the Treasurer to "take such oath * * * as [is] now, or may hereafter be prescribed by law".  Article 37 of the Declaration of Rights provides: "That no religious test ought ever to be required as a qualification [*199] for any office of profit or trust in this State, other than a declaration of belief in the existence of God; nor shall the Legislature prescribe any other oath of office than the oath prescribed by this Constitution." Section 15 of the Ober Act provides that no person shall become a candidate for election to any public office whatsoever in this State unless he shall file with his certificate of nomination an affidavit that he is not a "subversive person", as defined in the act.  Our duty is to set the statute beside the constitution and determine whether or not the affidavit required by section 15 is forbidden by Article 37.  Zeal or lack of zeal on our part for hunting and catching Communists would not justify us in distorting the plain meaning of Article 37 in order to uphold or strike down the statute.

   This court has held that Article 37 means what it says and is not narrowed by the history and purpose behind it.  In Davidson v. Brice,[***39] 91 Md. 681, 48 A. 52, a requirement in an act of 1894 that the county treasurer of Anne Arundel County take an oath "in form similar to that heretofore taken by collectors of taxes" was held contrary to [**342] Article 37 and invalid. The oath taken by collectors had been prescribed (with successive changes) by Acts of 1841, 1847, 1874 and 1888.  Code of 1860, art. 81, sec. 36; Code of 1888, art. 81, sec. 36.  This provision was again reenacted in 1900 and remained in the Code until repealed by the tax revision act of 1929.  Code of 1924, art. 81, sec. 44.  The court, in its opinion by Chief Judge McSherry, asks and answers the question, "has the legislature the authority to prescribe, as a qualification for the office of county treasurer, any other oath than the one which section 6, art. 1, of the constitution imposes?", and after quoting art. 1, sec. 6, and art. 37, says, "Here, then, is an explicit limitation on the power of the legislature.  In the face of this positive and plain inhibition, how can it be insisted that the legislature may impose as a qualification for a public office some other and additional oath 'than the oath prescribed by the constitution'?  If it may[***40] require the county [*200] treasurer to take the oath prescribed by the Code for tax collectors, it may with equal propriety superadd some other and widely-different oath, and completely nullify the restrictive clause of article 37 of the declaration of rights. It was the obvious purpose of the people who adopted the constitution of 1867 to deprive the legislature of any power to formulate or impose an oath of office, except as respects the state comptroller and the state treasurer, each of whom, under section 1, art. 6, of the constitution, is required to 'take such oath and enter into such bonds * * * as are now, or may hereafter be, prescribed by law.'

   "The significance of the restrictive clause in article 37 of the declaration of rights is conspicuous if antecedent constitutions of the state are consulted, and if the history of the disturbed period covering the Civil War and just preceding the adoption of the constitution of 1867 be recalled.  * * * There can be no doubt that the legislature had, under the declarations of rights of 1776, 1851, and 1864, the authority to prescribe oaths of office and in many instances this authority was exercised.  When the convention of 1867[***41] assembled, it was a common belief that many of the official oaths which the legislature had previously prescribed in the exercise of an undoubted power were needlessly stringent, and this sentiment found expression in that provision of the declaration of rights which, by prohibiting any other official oath than the one set forth in the constitution itself, took away from the general assembly the power to adopt or require an additional one.  The omission from the declaration of rights of 1867 of the authority contained in every antecedent declaration of rights, giving the legislature the power to impose an official oath, was deliberate; and, to give emphasis to the design of the framers of the constitution, a positive prohibition, introduced for the first time, was substituted for the rejected clause.  * * * No office, however created, can be assumed until an official oath is taken; and no official oath other than that set forth in the constitution can be [*201] required, because that is the only one prescribed by the constitution, and all others are prohibited by the declaration of rights. Article 37 does two things: It prohibits any religious test as a qualification for[***42] any office of profit and trust, other than a declaration of belief in the existence of God; and it prohibits any oath of office other than the one set forth in section 6, art. 1, of the constitution, except as respects the comptroller and treasurer.  By no known rule of interpretation can these prohibitions be confined to offices specifically created by the constitution, nor can they be restricted to a narrower scope than their plain words indicate.  * * *" 91 Md. 681, 687-691, 48 A. 54. [All italics in the original.] See also Keyser v. Upshur, 92 Md. 726, 728, 48 A. 399.

   Davidson v. Brice has never been modified or qualified.  In Hummelshime v. Hirsch, 114 Md. 39, 57, 79 A. 38 and in Rasin v. Leaverton, 181 Md. 91, 95, 28 A. 2d 612, no question was presented or decided, and nothing was said, regarding the validity of any requirement of an oath by a candidate for office.  In each of those cases the question was the construction, not the validity, of statutory or constitutional qualifications for office, in the one case as to assessment for and payment of taxes, in the other as to residence.  It was held that the [**343]qualifications must be possessed not[***43] merely at the time of taking office, but at the time of the election -- not, however, at the time of filing a certificate of candidacy before the primary election. In Keyser v. Upshur, 92 Md. 726, 728, 48 A. 399, it was held that a statutory requirement of an oath, as such invalid under Article 37, might be regarded as imposing a duty to do the things specified in the oath. The Cumberland charter provision, referred to in the Hummelshime case as requiring candidates to swear that they were qualified to hold office, actually did not require a candidate to swear to anything.  It required a sworn statement to be filed by the candidate "or * * * for him" 114 Md. at page 41, 79 A. at page 39, as is also shown in the form of oath set out.  That oath as to qualifications [*202] for office could be made regarding a stranger, on the strength of objective evidence from tax records and registers of voters.

   An oath which must be taken in order to obtain an office is an oath of office. The fact that such an oath may be more than an oath of office, e.g., a requirement from all candidates, successful or unsuccessful, does not make it any less an oath of office. As was aptly[***44] said by Judge Sherbow in the lower court in Lancaster v. Hammond, "The Subversive Activities Act of 1949 seeks to do by indirection that which cannot be done directly.  It is obvious that of all the candidates who file for office, one will be successful.  The law forbids an additional oath of the elected official.  To allow the oath of all the candidates, knowing one will be the successfully elected official, is to nullify the restriction of Article 37 of the Declaration of Rights. This is in the face of the plain and positive inhibition of the law.  It means we no longer look to the substance but adopt the form which destroys the substance." The Supreme Court of New Jersey, in its summary statement, quoted in the opinion of this court in the instant case, supra, 76 A. 2d 339, of the question presented and its answer, treated any distinction between requirement of an oath from persons who take office and from candidates for office, as not calling for mention.  Without mentioning any such distinction in question, answer or reasoning the court applied alike its reasoning and conclusion to four separate statutes, two relating to certain persons who take office, two to candidates [***45]for office.  Imbrie v. Marsh, 3 N. J. 578, 584-592, 71 A. 2d 352.

   In the opinion of this court in the instant case, and the minority opinion in Hammond v. Lancaster, 194 Md. 479, 481-482, 71 A. 2d 484-485, section 15 of the Ober Act is said not to violate Article 37, (1) because it prescribes, not an oath of office, but an oath for all candidates for office, and (2) because its purpose is to "implement" the 1948 constitutional amendment, art. 15, sec. 11, proposed by Acts of 1947, ch. 721, by requiring [*203] of candidates an oath to the effect that they possess the qualification for office prescribed by that amendment.  Whether these are two reasons or one is not altogether clear. Neither reason nor both combined is a valid reason.

   Davidson v. Brice discloses four instances, Keyser v. Upshur another, in which the legislature, evidently by inadvertence, not in defiance of Article 37, enacted or reenacted a forbidden statutory requirement of an oath of office. It would not be surprising if other instances could be found among the statutes of the last eighty-two years.  None has come to our attention.  The nearest approach to one is the provision in the Cumberland[***46] charter mentioned in the Hummelshime case.  Nevertheless, in the opinion of the court in the instant case, it is said, "It has been the practice and custom and statutory requirement for many years to demand from candidates at the time of filing for office certificates under oath with respect to their various qualifications. Such provisions are set out in Article 33 of the Code, and these sworn certificates have never been considered as additional oaths of office.  The filing of such certificates is made a prerequisite to the placing of a candidate's name upon the ballots or in the voting machines. (Art. 33, Sec. 53 (a) as enacted by Chapter 425 of the Acts of 1949.) Their requirement is a method by which the Legislature is executing what has been held to be its inherent power to safeguard elections. [Citing three cases.]" These statements are not accurate.  The cases cited discuss a great variety of election law [**344]requirements, but do not mention an affidavit by candidates as to their qualifications. Nor does section 53 (a) of Article 33, or any other cited provision in Article 33.  The difference between an acknowledgment of the authenticity of an instrument and[***47] an affidavit to the truth of its contents needs no explanation; it has been familiar, in the recording laws, to lawyers and scriveners for almost two hundred years.  So far as appears, it has never been a statutory requirement to demand from candidates certificates [*204]as to their qualifications, sworn to by them.  For the reason already stated, there is no real difference between a forbidden oath of office and a required oath by candidates for office.

   More novel, but not more substantial, is the distinction between a forbidden oath of office and an oath by candidates for the purpose of "implementing" the 1948 constitutional amendment by their oath that they possess the qualification for office prescribed in the amendment.  Violation of the constitution cannot be justified by the purpose of violating it.  One constitutional provision may not be violated in order to "implement" another. An oath as to qualifications for office is itself an added qualification. As was said in Davidson v. Brice [91 Md. 681, 48 A. 53], prescribing "as a qualification for the office * * *, any other oath" is precisely what is forbidden by Article 37.  A distinction between an oath of office[***48] and an oath to supplement other qualifications for office is, like a distinction between "begin" and "commence", a distinction without a difference.  If the legislature, when it proposed the 1948 amendment, or when it adopted the resolution directing appointment of the commission, had considered it advisable so to supplement the amendment, this could easily have been done by adding to the proposed amendment, or proposing as a separate amendment, a requirement that every candidate for office take an oath that he "is not a member of an organization that advocates the overthrow of the Government of the United States or of the State of Maryland by force or violence." In such event the "implemented" amendment or the original amendment and the "implementation" could have been submitted to the voters at the 1948 election.

   Furthermore, the premise for this alleged distinction, viz., that section 15 of the Ober Act covers only the same subject matter as the 1948 amendment, is without basis in law or in fact.  It is not necessary to pursue the details of the argument to support this premise.  The elaborate definition of "subversive person" embodies the still more elaborate definitions of[***49] "subversive organization" and [*205] "foreign subversive organization" (which does not mention "force or violence" at all), but (it is said) means only "a person who is a member of an organization that advocates the overthrow of the Government of the United States or of the State of Maryland through force or violence." If a statute is ambiguous, the courts, among possible constructions, select one that will avoid constitutional difficulties.  But this doctrine furnishes no warrant for discarding the carefully chosen words of the Ober Act as verbiage.  It is unbelievable that the legislature which directed the commission to study the laws of the United States and other states and formulate legislation, the commission which spent months in so doing, the manifestly skilled and careful draftsman of the act and the legislature which enacted it all spent their time and labor and spilled hundreds of words on circumlocutions of the 1948 amendment, only to darken counsel by words without meaning.  I do not intimate any opinion on the question how far, under the separability provision (sec. 18) in the Ober Act, section 15 or the definition of "subversive person" might be held valid in part[***50] or in some applications of it and invalid in part or in other applications.  See, e.g., American Communications Ass'n, v. Douds, 339 U.S. 382, 422, 70 S. Ct. 674, 94 L. Ed. 925, opinion of Mr. Justice Frankfurter.

   It is said that an act passed by the legislature comes to us "encased in the armor wrought by prior legislative determination." This recent "flourish of rhetoric" purports to be an expression of judicial humility in considering the validity of legislative action, not an invitation to usurp legislative power by ignoring the words of the legislature and rewriting a statute.

   [**345] The decision (as to Shub) in the instant case is unsupported by authority.  The decision of the Supreme Court of New Jersey is flatly to the contrary.  The New Jersey constitution contains a provision for an oath, substantially identical with art. 1, sec. 6 of the Maryland constitution, but no express prohibition, like art. 37, of any other oath. The court, however, held that [*206] the provision for an oath prohibited by implication any other oath, and it held invalid all four statutes which required oaths from persons who take office or become candidates for elective office.

   I[***51] concur in the result as to Thelma Gerende.  The State of Maryland has no more authority to prescribe qualifications for a member of Congress than for the Prime Minister of Canada or Russia.  But for the proviso in section 15 relating to candidates for President or Vice President of the United States, that section might be construed as applicable only to elections for state offices.  The proviso, however, manifests an intent that section 15 apply to all other federal offices.  If section 15 were really only a legitimate "safeguard of elections" against fraud, it would be equally valid as to elections for state or federal offices.

   If section 15 is not (as I believe it is) invalid under Article 37, then the federal questions raised must be decided.  The Supreme Court already has denied an immediate hearing on appeal in the instant case; presumably it may dismiss the case as moot after the election. Jones v. Montague, 194 U.S. 147, 24 S. Ct. 611, 48 L. Ed. 913. On the other hand, if section 15 is now authoritatively construed (as I think it should not be) as meaning only what the 1948 amendment says, then the federal questions have been materially narrowed.  Most of the federal questions[***52] have been raised under the First Amendment, as included in the due process clause of the Fourteenth, or otherwise under the due process clause.  Only the Supreme Court can authoritatively decide these federal questions.  Some of them may be decided or illumined in cases now pending in that court.  I express no opinion on any federal questions under the due process clause.

   I agree that section 15 is not a bill of attainder or an ex post facto law.

   I think the judgment should have been reversed as to both Shub and Gerende. 

EMERY, etc., et al. v. F. P. ASHER, Jr., & SONS, INC. 
No. 193, October Term, 1949
 
Court of Appeals of Maryland
 
196 Md. 1; 75 A.2d 333; 1950 Md. LEXIS 383

 July  19, 1950, Decided

   PRIOR HISTORY: [***1]  
Two appeals in one record from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments affirmed, with costs.

CORE TERMS:  highway, curve, juror, collision, tractor-trailer, properly refused, distance, bulldozer, prayer, right-hand, voir dire, auto accident, scene, disabled, night, proffer, plat, miles, rear, contributory negligence, physical condition, engineer, cross-examination, obstruction, bricklayer, embankment, lighting, tractor, loading, parked

COUNSEL: Earl H. Davis and Maurice Weidemeyer for the appellants.

   Robert D. Bartlett and William J. McWilliams for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, and Henderson.  Collins, J., delivered[***9] the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*6] [**335] This is an appeal by Norman B. Emery and Lonnie E. Polson, two bricklayers, plaintiffs below, from judgments for costs rendered on verdicts by a jury in favor of F. P. Asher, Jr., & Sons, Inc., defendant below, appellee here, in automobile accident cases resulting in personal injury to appellants and property damage.  The cases were tried together.

   On January 8, 1949, the appellants were passengers in a Kaiser automobile being driven by Polson, and owned by Emery, on the Central Avenue road from the District of Columbia to Annapolis between 6:00 and 6:30 A.M.  They planned to spend that day in a duck blind on the South River near Annapolis.  At that time it was still dark.  After the automobile had rounded a right-hand curve in the road and had come onto a straight stretch in the highway the headlights showed an obstruction on the highway. This obstruction, with which their automobile collided, proved to be a tractor-trailer combination owned by the appellee, the rear end of which was against an embankment on the south side of the highway for the purpose of loading on the trailer a bulldozer for transportation to [***10]another location.  The front of the tractor was facing north across the highway.

   After each side had exhausted its four strikes and twelve persons were seated in the jury box, the appellants requested permission to examine the prospective jurors on their voir dire and, on refusal, submitted ten questions to be propounded to them.  The trial judge personally asked the twelve prospective jurors two of the questions submitted, one being: "Are you, or any members of your immediate family, employed by the defendant corporation?" The other question asked by the trial judge was: "Do you know anything about the facts of this accident, either from personal knowledge or from having read of same in the newspapers?" The trial judge refused to ask the prospective jurors, as requested, whether they knew either of the plaintiffs; either of the counsel for plaintiffs; Mr. Asher, any of his sons, or other officers of the defendant [*7]corporation; or any of the counsel for the defendant.  The trial judge also refused to ask them whether they were bricklayers by trade; whether they had participated in litigation arising out of a motor vehicle collision, either as plaintiffs or defendants; [***11] whether any other reason suggested itself to them, which might embarrass them as jurors; and whether they could render a fair and impartial verdict, based upon the evidence alone, "and the law as the court shall give [**336] it to you?" The appellants argue that these refusals constitute reversible error.

   It has been definitely held by this Court that it is proper for the court to propound submitted questions to jurymen.  Handy v. State, 101 Md. 39, 43, 44, 60 A. 452, 109 Am. St. Rep. 558; Whittemore v. State, 151 Md. 309, 312, 134 A. 322. Chief Judge Bond, in Whittemore v. State, supra, said, beginning, 151 Md. at page 313, 134 A. at page 323: "This court, in Handy v. State, quoted several decisions in English and American courts, opposing examinations of jurymen which they characterized as speculative, inquisitorial, catechizing, or fishing, to aid in deciding on peremptory challenges, and definitely decided that this was improper.  Judge Pearce, writing the opinion for the court, said: 'We are aware that there are decisions to the contrary in other courts of equal authority and reputation, but such knowledge as we possess of the experience in practice under [***12] those decisions does not commend them to our adoption,' -- in this referring, presumably, to reports from other jurisdictions of seemingly unreasonable incumbering and prolongation of the work of securing a jury to proceed with trial.  It is true, as counsel points out, that the court in Handy v. State held that whether the juryman questioned was or was not a married man was immaterial, so that the particular question asked was objectionable because of that fact, but that holding does not detract from the fact that the court decided that questions not specifically directed to some reasonable cause for disqualification, and so, merely for peremptory challenge, should not be asked. [*8] And see Gillespie v. State, 92 Md. 171, 174, 48 A. 32." The examination of a juror which a party is entitled to have made is for the purpose of ascertaining the existence of cause for disqualification and for no other purpose.  Cohen v. State, 173 Md. 216, 224, 195 A. 532, 196 A. 819.

   The appellants rely on the case of Alexander v. R. D. Grier & Sons Co., 181 Md. 415, 419, 30 A. 2d 757, 758. In that case the liquidator of Keystone Indemnity Exchange sought to enforce an assessment[***13] against a subscriber.  The liquidator asked to examine the jurors on their voir dire on the question "as to whether or not they, or any of their immediate families, are assessables in the Keystone Indemnity Exchange." The trial judge refused the request.  This Court, in reversing the case held that the fact that a prospective juror or a member of his immediate family was an "assessable" in the Keystone would create bias or prejudice in the juror's mind.  His financial interest "would theoretically incline him in favor of recovery of verdict for the Liquidator".  On the other hand, he "might feel that the whole plan of assessment was unjust and inequitable and his sympathy be with the defendant policy holder." In either event the juror would not be impartial.  In Morford v. United States, 339 U.S. 258, 70 S. Ct. 586, the panel for selection of jurors consisted almost entirely of government employees in Washington.  The petitioner sought to examine these on their voir dire with reference to the possible influence of the Federal "Loyalty Order".  The Supreme Court held that such an examination should have been permitted.  See also Dennis v. United States, 339 U.S. 162, [***14] 70 S. Ct. 519, 523.

   The special questions which the trial judge here refused to propound to the jury do not appear, as appeared in the last two cases reviewed, to have been necessary for a fair and impartial trial to which, of course, the appellants were entitled, on the issues here presented.  The questions refused appear to be more or less speculative or "fishing" and such as not to test the eligibility of the prospective jurors. The appellants admitted during [*9] argument in this Court that they knew of no juror who sat in the case who would have been disqualified if the proposed questions had been asked.  We cannot say that the trial judge abused his discretion.

   During the trial appellant Polson testified as to the injuries received by him as a result of the accident in this case.  In the declaration he alleged permanent injuries, future hospital and medical care and future loss of earnings as a union bricklayer. Doctors had been called by Polson who testified as to the extent of his injuries and doctors who had examined him [**337] were called by the defendant to testify as to the result of X-ray pictures taken of his back.  Polson had called his employer as a witness[***15] who had testified the amount of time Polson worked prior to the accident and six months afterwards.  Polson testified that from the date of his accident until March 23rd when his cast was removed he "couldn't get around", when he laid down "it hurt me".  In other words, testimony had been offered to show Polson's physical condition, as late as six months after the accident and even up to the time of trial, which he attributed to the accident.  During his direct examination he testified that after receiving surgical treatment, the only physician other than Dr. Saracy who had cared for him was Dr. Pelland.  Polson and his counsel at that time knew that Polson had been struck over the head by a pistol in February, 1949.  On cross-examination Polson was asked whether he was treated by any other doctor in February, 1949.  This was during the time he claimed disability.  Appellant Polson objected to the question unless it was limited to injuries arising out of the automobile accident.  The trial judge overruled the objection and Polson testifying as to that occurrence said that he was treated for cuts on his head when "a fellow thought I owed him some money, and I didn't. So he tried to[***16] take my money, and I wouldn't give it to him.  So he had his hand in his pocket, like this (indicating) and I thought he had a gun. So I grabbed at him.  Due to the fact that I had my cast on, [*10] I couldn't get around.  He pulled a gun out and beat me across the head with it and had me down on the pavement.  I couldn't get up." He further said that these injuries did not aggravate the injuries sustained in the automobile accident. Appellant Polson claimed that the trial judge should not have allowed this evidence to be presented on cross-examination without requiring the defendant to make Polson his own witness for that purpose and that such evidence was prejudicial.  With this contention of the appellant we do not agree.  The plaintiff had offered testimony as to his physical condition before the accident and as to his condition for six months after the accident.  It was certainly proper for the defendant to ascertain whether anything had happened to the plaintiff in the meantime to aggravate the originally claimed injuries or had caused the pains from which he claimed he was suffering.  Of course, where a general subject has been gone into in the examination in chief, the[***17] cross-examining counsel may ask any relevant question on that general subject. Armiger v. Baltimore Transit Co., 173 Md. 416, 423, 196 A. 111; Williams v. Graff, 194 Md. 516, 522, 71 A. 2d 450, 452, 453.

   The appellant offered as an expert witness, Sgt. Walter R. Ostrom, of the Accident Investigation Unit of the Washington Police Department.  Polson had admitted that just before the collision he was driving the automobile "around 50 miles an hour", which was the legal speed limit on that road.  Sgt. Ostrom testified that a motor vehicle traveling 50 miles per hour is moving at the rate of 74 feet per second.  Appellant then proffered to prove by this witness the normal reaction time, the stopping distance on this road, and other scientific deductions.  This proffer was refused by the trial judge and we think properly so.  Appellant assigns this refusal as error.  This proffer did not take into consideration the fact that this accident occurred at night on a road that Polson did not know whether he had ever traveled before and the fact that Polson did not know whether his [*11] headlights were depressed down or shining "full distance ahead".  The proffer was not based[***18] on the proper hypothesis or basis.  Bozman v. State to use of Cronhardt, 177 Md. 151, 156, 157, 9 A. 2d 60; Parker v. State, 189 Md. 244, 248, 55 A. 2d 784. This proffer apparently attempted to show that the automobile was traveling at the rate of 40 miles an hour when Polson applied his brakes although Polson testified he was traveling at the rate of around 50 miles per hour at that time.  This would hardly have been helpful to the jury on the question of contributory negligence on the part of Polson, which was the theory on which it was offered.

   The appellants further assign as error the refusal of the trial judge to permit [**338] them to offer in evidence the fact that the defendant could have loaded the bulldozer on the tractor-trailer at some other point adjacent to the traveled highway, and a short distance away, without having blocked the highway. This testimony was properly refused as it would have had no bearing on the negligence of the defendant at the time and place of the accident or on any other issue before the jury in this case.

   After the trial had proceeded for two days there had developed quite a dispute as to the distance of the line of visibility[***19] from the curve, around which appellants came just before the collision, to the point of collision, and the true length of the straight-of-way from the east end of the curve to the place of collision. Mr. F. P. Asher, Jr., testified that on December 15, 1949, he went to the scene of the accident in this case with Mr. Fayette M. Latham, Jr., an engineer and surveyor, with Mr. Armiger, who was Asher's superintendent, Mr. Greathouse, the man who was operating the bulldozer at the time of the accident, and Mr. Moreland, who drove Mr. Polson to the hospital after the accident and the exact point in the road where the accident occurred was determined and this place was pointed out to Mr. Latham, in the presence of Mr. Davis, one of the attorneys for the appellants.  Mr. Asher further testified that the contour, the natural and physical condition of the road and the straight-of-way [*12] at the scene of the accident had not been changed since the date of the accident, January 8, 1949.  Gravel had been put on the road and the road had been graded.  The curve had not been changed in any degree.  The approaches north and south, east and west were the same and the road was of the same width. [***20] The next morning, Mr. Latham went to the scene of the accident, as pointed out to him the day before, and stationed a man in the center of the road where the collision happened and marked the point on a plat. He then drove down the road well past the curve, turned around and came back down the road until he first saw the man standing in the road at the scene of the accident.  He stopped his car, marked the spot on the side of the road and marked it on the plat as the "point of vision".  He testified that "the absolute straight line sight line distance is 740 feet".  He further testified that the plat which he then made and which was offered in evidence correctly delineated the right-of-way line of the road or curve. Appellants claim as error the admission of this plat in evidence and the testimony of Mr. Latham as to his observations because they were made in daylight, not under the same circumstances, and because they were made from places indicated to him by the defendant out of the presence of plaintiffs.  As previously set forth, testimony had been offered that the width of the road and the line of the curve had not been changed.  Testimony had been previously offered that persons[***21] at the scene when the accident happened pointed out the point of collision to Mr. Latham and that one of appellant's attorneys was present at the time.  We find no error in the admission of the plat and Mr. Latham's testimony.  This was admitted merely to show the line of vision, not what could or could not be seen. 

   Mr. Asher having testified in chief was asked on cross-examination by Mr. Davis whether little spherical shaped containers of kerosene were placed and lit to indicate the obstruction made by the tractor-trailer on Central Avenue.  He answered: "I say we didn't need it".  Mr. [*13] Davis then asked for a "yes" or "no" answer and the judge stated: "The Court can't compel him to answer that way." Appellant assigns this as error.  This claimed error and the refusal of part of appellants' seventh prayer seem to be based on appellants' contention that Article 66 1/2, Section 240 (b), (1947 Supplement Code), was applicable to this situation.  This section provides that when such a vehicle as was involved in this case "or its lighting equipment is disabled during the period when lighted lamps must be displayed on vehicles and such vehicle cannot immediately be removed[***22] from the main travelled portion of a highway outside of a business or residence district, or when any disabled vehicle described in sub-section [**339] (a) is parked on the highway in such position near the crest of a hill or curve as to create danger to other users of the highway, the driver or other person in charge of such vehicle shall immediately cause such flares, lanterns, or other signals to be lighted and placed upon the highway one at a distance of approximately 100 feet in advance of such vehicle, one at a distance of approximately 100 feet in the rear of such vehicle, and the third upon the roadway side of such vehicle, except that if the vehicle is transporting inflammables, three brilliant red reflectors in lieu of other signals, shall be placed adjacent to any such last mentioned vehicle." (Emphasis supplied).  There is no evidence in this case that the tractor-trailer or its lighting system was in any way disabled. In fact, testimony had been offered that the tractor-trailer and the bulldozer were "all lit up." The trial judge held that Article 66 1/2, Section 240 (b), supra, did not apply to this case, as neither the vehicle nor its lighting system was[***23] disabled. The interpretation of the statute was a question for the court.  Vogelsang v. Sehlhorst, 194 Md. 413, 419, 71 A. 2d 295, 298, and we are of the opinion that the court's interpretation was correct.  The legislature specifically limited this section to disabled vehicles or disabled lights.  The Courts have no power to abrogate this limitation.  In Marshall v. Sellers, 188 Md. 508, 53 A. 2d 3, relied [*14] on by the appellants, the fuse blew out on the truck disabling the lights.  Therefore, that case is not in point.  The trial judge granted the remaining part of plaintiff's seventh prayer based on Code, 1947 Supplement, Article 66 1/2, Section 240 (a) relating to the failure of defendant to carry flares in the tractor-trailer. He also instructed the jury on Section 240 (a), supra.

   The plaintiff's sixth prayer was based on that part of Code, 1947 Supplement, Article 66 1/2, Section 190 (a) forbidding the stopping, standing, or parking of vehicles in certain places alongside or opposite a street excavation or obstruction. There was no evidence in this case to make that section applicable to defendant's vehicle, and the prayer was properly refused. Parts[***24] of the eighth prayer, referring to a situation where a red light signal is placed, were based on two cases, one from California and the other from the State of Washington.  There was no evidence in this case to support the rejected parts of this prayer, which were properly refused.

   Plaintiffs' third and fourth prayers, which were properly refused by the trial judge, undertook to define "proximate cause".  The trial judge in his charge instructed the jury fully on the law of negligence of the defendant and contributory negligence on the part of the plaintiffs, which were the issues involved.  As we find no error, the judgments will be affirmed.

   Judgments affirmed, with costs. 

MOLESWORTH v. SCHMIDT 
No. 198, October Term, 1949
 
Court of Appeals of Maryland
 
196 Md. 15; 75 A.2d 100; 1950 Md. LEXIS 384

 July  19, 1950, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  summary judgment, written contract, oral contract, declaration, flagstone, cellar, walk, recoupment, contract price, work done, plead, construct, bargained, itemized, set-off, trivial, laying, oath, indispensable condition, contract sued, action of assumpsit, motion to dismiss, damages resulting, damage resulting, agreed statement, fully performed, account stated, unimportant, answered, decree

COUNSEL: George B. Woelfel for the appellant.

   George W. Baker, Jr., with whom was James C. Morton, Jr. on the brief, for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, and Henderson, JJ.  Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*17] [**101] George C. Schmidt (plaintiff) sued Carlton L. Molesworth (defendant) in the Circuit Court for Anne Arundel County on the 14th day of May, 1949.  The declaration contained the following common counts: (1) For goods bargained and sold; (2) For work done and materials provided; (3) For money found to be due on accounts [*18] stated between them; and claimed $1,000.  There was an affidavit in support of a motion for summary judgment by the plaintiff "that there is justly due and owing by * * *, the Defendant in the within named case, to the Plaintiff on annexed account, the sum of $532.18, (with interest from December 15, 1947,) over and above all discounts * * *". The account attached to the narr shows items from December 12, 1946, to May 23, 1947, with various credits, leaving a balance due of $532.18.  On July 5, 1949, the[***6] defendant answered under oath the motion for summary judgment, and on the same day filed pleas: 1. That he never contracted as alleged and 2. that he never was indebted as alleged.  The case was tried before a jury which rendered a verdict of $532.18, and judgment was subsequently entered thereon, from which the appeal in this case was taken.

   It appears from the record that counsel for the respective parties intended to file in the case an agreed statement of facts.  There were minor details on which they could not agree.  The result was that counsel for appellant submitted a statement of facts, signed by him, which was approved and signed by the court; counsel for appellee also submitted a statement of facts signed by him, to the court, which was approved and signed by the court.  Both of these statements of fact are contained in the record, and we have carefully checked them.  The difference between them is unimportant and trivial. The appellee moves to dismiss the appeal because Rule 22 of this court was not followed or complied with.  That rule permits the parties to a cause to submit a signed "statement of the case showing how the questions arose and were decided and setting[***7] forth so much only of the facts alleged and proved, or sought to be proved, as is essential to a decision of such questions by the Appellate Court.  Such statement, when filed in the office of the Clerk of the lower Court shall be treated as superseding, for the purposes of the appeal, all parts of the record other than the judgment or decree from which the appeal is taken, and, together with such judgment or decree, [*19] shall be copied and certified to the Appellate Court as the record on appeal."

   Rule 18 of this court provides that "if any difference arises as to whether the record truly discloses what occurred in the lower Court, the difference shall be submitted to and settled by the Court and the record made to conform to the truth".  In this case the court dealt with trivial differences between counsel as to what the agreed statement of facts should contain.  As we view the matter, the facts contained in each statement submitted to the court are substantially the same, and the appeal should not be dismissed.  In expressing this view we do not wish to be understood that the rules of this court respecting the preparation of records will in any way be relaxed, nor that the [***8]opinions of this court concerning the matter are in any way modified. The motion to dismiss is denied.

   From the record and the statements at the argument by respective counsel, the facts of this case may be stated as follows: On September 28, 1946, appellee entered into a written contract with the appellant to construct a cellar for the appellant under a certain property, for the sum of $1,590.  The work under this contract was completed in December, 1946, and the full contract price of $1,590 was paid by appellant to appellee on January 2, 1947.  In May, 1947, the appellant entered into an oral contract with appellee whereby appellee was to lay a flagstone walk around the property in which the cellar had been constructed [**102] under the written contract referred to; and appellee claims he has fully performed the work under the oral contract, but the appellant has refused, and still refuses to pay him therefor.  At the trial of the case the appellant contended that the written contract and the verbal contract were one and the same, and that the account filed with the declaration for the purpose of supporting a summary judgment constituted a bill of particulars.  He contended[***9] that the work performed under the written contract, in the construction of the cellar, was not properly [*20] done, and that it would cost him, to put the cellar in the condition that it should have been put in under the written contract, more than the plaintiff's claim of $532.18 for laying the flagstone walk. He said his claim against the appellee would cancel out the appellee's claim against him for the laying of the flagstone walk and that he is entitled to do this by way of recoupment. The lower court denied this contention.

   The appellee's position is that the itemized claim filed with the declaration was for the purpose of supporting a summary judgment and that it is not a bill of particulars.

   In United States to use of General Electric Co. v. Schofield Co., C. C., 182 F. 240 at page 245, in speaking of an answer under oath to a motion for summary judgment, it is said: "It is not a pleading; it is not the equivalent of an answer under the Code practice, or of a plea under the practice at common law. Its function is to prevent a summary judgment, and after it has performed this office it drops out of sight.  It need not set up a defendant's whole case; it need do[***10] no more than show one sufficient reason why summary judgment should not be entered.  If required to examine it, the court must do so and decide whether, if true, it presents a defense that should be sustained in whole or in part; and, if such a defense be set up, summary judgment must be refused, and the parties must be left to frame their issues for trial as they may see fit.  The affidavit may attack the plaintiff's statement of claim for almost any reason, and may set up almost any other defense that may be available."

   In Brooks-Wright, Inc. v. Maryland Casualty Co., 126 N. J. L. 32, 17 A. 2d 51, 53, it is said: "While not in itself a pleading, the affidavit of merits is an integral part of the procedure laid down for the interposition of a defense, so much so that the filing thereof, where due demand has been made, is a sine qua non to the exercise of the right of making particular answer within the time allotted by Rule 76 of this court.  Such affidavit [*21] is 'required in order to set in motion a "course of pleading" in the true sense of the word.'" See United States v. Stephanidis, D. C., 41 F. 2d 958; Myers v. Rabinovitz, 326 Pa. 183, 191 A. 660.

   From[***11] these authorities we conclude that the itemized statement for the purpose of supporting a claim for a motion for summary judgment was not a bill of particulars.  The purpose of the motion and the itemized claim was to require the defendant, upon due notice, to file an answer under oath, stating a fact or facts that negatived the appellee's right to summary judgment. The facts set up in the answer must be of the character that would be legally admissible in the trial of the case.  The court has power to hear the motion and answer, to decline or grant the motion, or to require further proof.  1947 Supplement to Code, pages 2044-5-6, IV.  Summary Judgment, Rules 1-7.

   The answering of the motion for summary judgment by the appellant was an indispensable condition to his right to plead to the declaration. He answered the motion for summary judgment, and, thereafter pleaded to the declaration. He did not demand a bill of particulars or file a plea of set-off.

   In this case the first contract between these parties was a written contract entered into in September, 1946, fully performed by December 1946, and the appellant paid appellee in full for services under that written contract in [***12]January, 1947.  The oral contract, which was entered into in May, 1947, for the laying of the flagstone walk, was separate and distinct from the written contract. It was stated in argument that the lower court gave appellant [**103] an opportunity to show if there was any connection between the written contract and the oral contract. This he could not do.  It is manifest that he could not offer by way of recoupment, any damage resulting to him by reason of a breach of the written contract. Simmons v. Haas, 56 Md. 153.

   Judgment affirmed, with costs. 

MEINECKE et ux. v. GOEDEKE et al. 
No. 151, October Term, 1949
 
Court of Appeals of Maryland
 
195 Md. 373; 73 A.2d 445; 1950 Md. LEXIS 278

 May  12, 1950, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  vendor, purchaser, installment, void, chancellor, declare, sales contract, contract void, notice, purchase price, decree, real estate, mailed, rent, specific performance, lump sum, money order, waived, outstanding, one-ninth, deposit, vacate, refused to accept, proceeds of sale, fail to perform, abandonment, clearing, default, signature, abandoned

COUNSEL: Carroll H. Albaugh, with whom was Malcolm B. Tebbs on the brief, for the appellants.

   No appearance was entered and no brief was filed for the appellees.

JUDGES: Marbury, C. J., Collins, Grason, Henderson, and Markell, JJ.  Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*377] [**445] This is an appeal by Conrad Meinecke and Katherine Meinecke, appellants, from a decree requiring them to specifically perform a contract for the sale of realty.

   Since March, 1943, George B. Weber and wife had been renting from the appellants a tract of land with improvements in the Fourth Election District of Anne Arundel County, at times with seven other people [**446] living in the house on the property, for a rental of $50.00 per month.

   On August 21st, 1943, George B. Weber, and his wife since deceased, parties of the second part, entered into an agreement with the appellants here, parties of the first part, to purchase a tract of land consisting of 20[***7] acres more or less, together with the improvements thereon for the price of $5,000.00.  At the time of the execution of the contract $300.00 was paid on the purchase price and $200.00 was payable in one year with interest at the rate of 6% per annum.  The balance with interest at the rate of 6% was to be paid in monthly installments of $50.00 per month beginning September 11, 1943. The contract further provided: "All payments shall apply to the purchase price of the aforesaid property with proper deduction of 6% per annum on the unpaid balance, plus taxes and insurance to be paid by the parties of the second part to the parties of the first part." The contract provided as to a one-ninth outstanding interest in the property as follows: "(6) At the time of the conveyance to Conrad Meinecke, Jr. and Katherine Meinecke, his wife, by the heirs of Sophia Dent Moyan deceased, Juliet Chaney daughter of Rosalie Dent, sister to Sophia Dent Moyland deceased could not be found after a diligent search, however, her proportionate share of the proceeds of the sale are now on deposit for her use when if ever she or her heirs can be located for her or their signatures." The contract also provided[***8] as follows: [*378] "(10) Further, if the said parties of the second part shall fail to perform this contract or any part of the same for a period of thirty days during the existence of this contract between the parties hereto, then the parties of the first part shall have the right to declare this contract void as to the parties hereto, and the parties of the first part can retain amounts paid hereunder as rent, and also whatever improvements that might have been made during the existence of this contract, and the parties of the first part can take immediate possession of the aforementioned premises without legal process either at Law or Equity, and remove all parties, including the parties of the second part therefrom, without any restitution whatsoever." The parties of the first part also agreed, upon payment of the purchase price in full, at the expense of the parties of the second part, to "execute and deliver to the parties of the second part or his assigns, all their right, title and interest into the aforesaid mentioned property." This contract was drawn by Malcolm B. Tebbs, Esq., of the Baltimore Bar, brother-in-law of Mrs. Meinecke, one of the appellants.  His wife, Mrs. [***9] Tebbs, the sister of Mrs. Meinecke and manager of the Modern Building Company, collected the payments from the appellees and managed the property.

   During a period of five years about $3,000.00 was paid under the contract. The appellees were sometimes late with their payments but the appellants did not attempt to terminate the contract.  In 1943 the appellees spent $300.00 for a new roof on the house, paid $75.00 to fix the bathroom, made some improvements in the living room, papered part of the house and installed a temporary pump. At the time of the execution of the contract of sale the appellees stated that the property was rather rundown.  At the time of the hearing in this case the appellants claimed that the property was very much rundown while the appellees said that it was well kept.  A witness called by the appellees testified, and the chancellor found that the property at the time of hearing was worth about $9,000.00 or $10,000.00.

   [*379] Payments of $50.00 a month were received by the appellants up to and including the month of December, 1948.  No payments were received from the appellees during January and February 1949.  A claim was made by the appellees [***10]that they mailed $100.00 in cash to pay for the January and February rent. Mr. Weber said that this was mailed on March 1, 1949, and his daughter claimed to have actually mailed it and said it was posted in January.  No return address was put on the letter and apparently payments had always been previously made by money order. Appellants say that this $100.00 was not received.

    [**447] On December 11, 1948, $2,826.95 was due on the contract.  Mrs. Tebbs testified that on January 15th, February 1st, and February 18, 1949, she sent bills to Mr. Weber for these payments and on February 24th she telephoned and talked to Mr. Weber's daughter, Mrs. Goedeke, and told her that she would have to have payment and that Mrs. Goedeke said she would pay it when she could get the money together.  Again, on March 9th, Mrs. Tebbs sent a third bill to Mr. Weber for the three payments due January 11th, February 11th and March 11th, and at the bottom of the bill wrote the following: "According to the terms of your contract, this account must be paid not later than March 11, 1949.  Mr. and Mrs. Meinecke are entitled to their money each and every month in accordance with the terms of your contract, [***11] unless payment is received on your (sic) before March 11, 1949, we will have to enforce the terms of your contract." (Emphasis supplied.) On March 10, 1949, Weber went to see Mrs. Tebbs. He said at that time he had sufficient money to pay the contract in full.  He admitted however that he never told this to Mrs. Tebbs.  He said that he went to see how much of a balance was due on the contract.  Mrs. Tebbs testified that Weber came to see her on March 10th, and told her that he appreciated her past kindnesses, that he had been living elsewhere since his wife died in 1946, that it was foolish for him to pay any more on the property, and "if you don't hear [*380]from me by the 11th, you will know I have abandoned the property." This statement is denied by Weber.

   On March 15th, 1949, Mr. Tebbs testified that he wrote a registered letter, return receipt requested, intended for Mrs. Goedeke.  This letter advised her that "the contract is now void" and gave her until March 21, 1949 to vacate the premises.  The letter however was addressed to "Mrs. Gettier." Mrs. Goedeke says she never received this letter and the appellants do not have the receipt. Appellants admit that apparently[***12] it was never received.  On March 16, 1949, Weber purported to assign his interest in the contract to James A. Goedeke, one of the appellees here, without any notice to the appellants.  On March 21st, 1949, the Goedekes mailed a money order to Mr. Tebbs in the amount of $200.00 to cover rent until April 11, 1949.  Mr. Tebbs received this money order, drove down to the property and told appellees the contract was void. Accompanied by the appellees he went to the office of Goedeke's attorney, Mr. Sachse, where the matter was discussed.  Mr. Tebbs told Mr. Sachse that he would return the $200.00 to the appellees if they would vacate the property.  On April 1st Mr. Sachse, representing the appellees, wrote Mr. Tebbs offering to pay the entire balance due under the agreement of sale or to continue paying the installments of $50.00 per month.  Both of these offers were rejected by Mr. Tebbs and he still retained the $200.00 sent him by Mr. Goedeke on March 21st, 1949.

   Mr. Tebbs employed an attorney, Mr. Albaugh, to clear up the outstanding one-ninth interest to the property here in controversy and to two other lots in that title.  The cost of clearing up the title to these three properties [***13]was seven or eight hundred dollars.

   On July 25, 1949, the appellees here filed a bill of complaint in the Circuit Court for Anne Arundel County reciting in part the facts hereinbefore stated and asking among other things that the contract be specifically enforced either by the acceptance of monthly payments of $50.00 from the appellees as provided in the contract, or [*381] by the acceptance of the full amount of the unpaid purchase price and the execution of a proper deed to George B. Weber or his assignee.  After the filing of a joint demurrer and answer, testimony was taken in open court.  On October 6, 1949, the chancellor passed a decree ordering the specific performance of the contract as written, the appellants having refused to accept the balance of the purchase price in a lump sum. From that decree the appellants appeal.

   It will be noted that paragraph 10 of the contract, supra, is not self-executing.  As pointed out by the chancellor, this clause does not say that upon [**448] failure of the purchaser to pay as specified the contract shall be void. On the other hand, it provides that if the purchasers shall fail to perform the contract or any part thereof[***14] for a period of thirty days the parties of the first part shall have the right "to declare this contract void." "The word 'void' means voidable at the vendor's election, and the condition may be insisted upon or waived, at his choice." Stewart v. Griffith, 217 U.S. 323, 30 S. Ct. 528, 529, 54 L. Ed. 782, 19 Ann. Cas. 639; Rogers v. Dorrance, 140 Md. 419, 424, 117 A. 564, 32 A. L. R. 573. The first intimation given the appellees of any intention on the part of the appellants "to declare this contract void" was at the bottom of the bill sent on March 9, 1949, hereinbefore set forth, in which the appellants said that "unless payment is received before March 11, 1949, we will have to enforce the terms of the contract." This was merely a notice by the appellants of an intention to declare the contract void in the future, and amounted to no more than a warning. Shriver Oil Co. v. Interocean Oil Co., 157 Md. 341, 353, 146 A. 223. A further act declaring the contract void was necessary before Paragraph 10 of the contract, supra, came into effect.  Coster v. Arrow, Building & Loan Ass'n, 184 Md. 342, 347-348, 41 A. 2d 83.

   The registered letter of March 15, 1949, written[***15] by Mr. Tebbs to Mrs. Goedeke advising her that the contract was void admittedly was wrongly addressed and appellants [*382] admit that it apparently was never received. Therefore no notice was given to the appellees that the contract was void until Mr. Tebbs drove out to the property on March 21st and so notified them, and told them that he would return the $200.00 if they would vacate the property.  This notice of March 21st from Mr. Tebbs, voiding the contract, was too late as he then had retained the $200.00 in his possession, which was sufficient to bring the contract payments to date.  Therefore, we are of opinion that the appellants did not exercise their privilege to void the contract during the period it was in default and the previous defaults were waived. Kahn v. Janowski, 191 Md. 279, 287, 60 A. 2d 519, 522.

   As to the appellants' contention that the contract was abandoned by Mr. Weber we have only the testimony of Mrs. Tebbs on one side and that of Mr. Weber on the other, denying the abandonment. We agree with the chancellor that this was not sufficient evidence of abandonment.

   Appellants further contend that the appellees should bear part of the cost of [***16] clearing the title to the land covered by the contract.  As set out in Paragraph (6), supra, a representation was made that a proportionate share of the proceeds of sale were on deposit for the use of a missing heir if she could be located for her signature. The proceeds of sale apparently referred to the sale at the time the appellants bought the property.  How much was retained to provide for this outstanding interest nowhere appears in the record in this case.  The testimony shows that the appellants paid $700.00 or $800.00 to clear up the title to the property now in dispute and to two other lots.  There is nothing in the record to indicate what proportion of this cost necessary to clear the title was chargeable to the property in question.  Whether the amount retained was sufficient to pay this proportionate part, neither the chancellor nor we are able to determine from the record.

   As the appellants refused to accept in a lump sum the balance of the purchase money due for the reason that [*383] they desire the 6% interest on this balance, the chancellor was correct in decreeing that the balance of the payments be made at $50.00 per month as specified in the contract. [***17] The decree will be affirmed.

   Decree affirmed, with costs. 

DUVALL et al. v. LACY, Comptroller 
No. 141, October Term, 1949
 
Court of Appeals of Maryland
 
195 Md. 138; 73 A.2d 26; 1950 Md. LEXIS 251

 April  14, 1950, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order affirmed with costs.

CORE TERMS:  duty, income tax, municipal, collection, seat, mandatory, seat of government, sales tax, convention, irrespective, special interest, legal action, main office, appropriation, expenditure, restrain, definite, enumerated, resident, mandamus, rental, voter, space, departmental, convenient, forefathers, foresight, strictly construed, state income tax, class suits

COUNSEL: Emanuel Klawans and F. Neal Parke, with whom was Louis M. Strauss on the brief, for the appellants.

   J. Edgar Harvey, Deputy Attorney General, with whom was Hall Hammond, Attorney General, on the brief, for the appellee.

JUDGES: Marbury, C. J., Collins, Grason, Henderson, and Markell, JJ.  Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*142] [**27] Appellants filed a petition for a writ of mandamus against the Comptroller of the State, alleging that he was about to [***7]remove the income tax division of his office from Annapolis to the City of Baltimore, in violation of Article VI, Section 1, of the Constitution of Maryland.  They allege that the rental of office space for this division in Baltimore will constitute a diversion of public monies to an unlawful use, that there is now available ample space and adequate facilities for the division in the State Office Building in Annapolis, and if added space is wanted it can be obtained in that City.  The Comptroller demurred, the lower court sustained the demurrer and dismissed the petition, and from its order petitioners appeal here. 

   The petitioners in the writ are the Mayor and Aldermen of the City of Annapolis, a municipal body corporate, and two individuals.  The petition states that the corporation brings this suit on behalf of itself and of all citizens, residents, voters and taxpayers of the State, county and City.  One of the individual petitioners is Frank M. Duvall, a citizen, resident, voter and taxpayer of the State and of Anne Arundel County, and he brings the suit as well on behalf of all others similarly situated.  The other individual petitioner is the Mayor of Annapolis, who is also[***8] alleged to be a citizen, resident, voter and taxpayer of the State, county and City, and a merchant engaged in business in Annapolis, and he also brings the suit as well on behalf of all others similarly situated.

   [*143] Municipal corporations have only the powers conferred upon them by the Legislature, and these are to be strictly construed. "To doubt such power in a given case is to deny its existence." Hanlon v. Levin, 168 Md. 674, 179 A. 286, 287, Mayor & City Council of City of Baltimore v. Canton Company, 186 Md. 618, 631, 47 A. 2d 775. We have held that it is implicit in the authority of such a corporation to take necessary legal action to put in force its ordinances or any amendment to its charter, Board of Education of Frederick County v. Mayor & Aldermen of Frederick, 194 Md. 170, 69 A. 2d 912, but we know of no authority given to the corporate appellant in this case to ask for a construction of the Constitution of the State, or to require a state official to carry out what it claims to be the mandatory instruction of that document.  There is no allegation in the petition of any special benefit to the City of Annapolis from a retention there of the Income[***9] Tax [**28] Division, and if there were, we know of no ground on which the municipal authority could legally enforce such benefit.  It has become customary in recent years for municipalities to advertise the particular advantages of their communities so as to attract industries, but the right to bring suit is quite another thing.  The individual taxpayers, Duvall and McCready, have a somewhat better standing.  Taxpayers, in this State, have frequently been allowed by class suits to restrain the improper expenditures of public funds.  This may in some cases be permissible even though the acts complained of are profitable to the public.  Hanlon v. Levin, supra; Green v. Garrett, 192 Md. 52, 63 A. 2d 326. There is no showing in the petition whether the objected action of the Comptroller will be beneficial from a financial standpoint or not, and this Court has recently denied the right of taxpayers to test the constitutionality of a statute unless they have some special interest in it.  Hammond v. Lancaster, 194 Md. 462, 71 A. 2d 474. The appellee, however, does not raise the question of the rights of any of the petitioners to bring the suit, and we refer to it only because[***10] we do not wish to indicate that there [*144] exists an unrestricted right in any taxpayers or bodies of taxpayers to bring any sort of proceeding they may think should be instituted.  For the purposes of this particular case, we will pass the question and proceed to the main issue.

   Article VI, Section 1 of the Constitution, provides for a Treasury Department consisting of a Comptroller, to be elected and a Treasurer to be appointed by the Legislature.  In the last part of the section is the statement, "The Comptroller and the Treasurer shall keep their offices at the seat of government." The duties of the Comptroller are set forth in Section 2 of Article VI.  He is to have the general superintendence of the fiscal affairs of the State, to digest and prepare plans for the improvement and management of the revenue and for the support of the public credit; prepare and report estimates of the revenue and expenditures of the State; superintend and enforce the prompt collection of all taxes and revenue; adjust and settle with delinquent collectors and receivers of taxes; preserve all public accounts and decide on the forms of keeping and stating accounts; grant warrants for money to [***11]be paid out of the Treasury, in pursuance of appropriations, and countersign all checks drawn by the Treasurer; prescribe the formalities of the transfer of stock; make to the General Assembly full reports on all these proceedings and of the state of the Treasury Department within ten days after the commencement of each Session; "and perform such other duties as shall be prescribed by law." The provisions of Section 1 and Section 2 of Article VI did not originate in the Constitution of 1867.  They are to be found in Article VI, Sections 2 and 3 of the Constitution of 1864, and they are practically copied verbatim from Article VI, Sections 1 and 2 of the Constitution of 1851.  It was by the latter Constitution that the office of Comptroller was first established, and the debates of that Convention show the purpose of it.  The report was made by Mr. McLane, Chairman of the Committee on the Treasury Department, and in his explanation of it, he [*145] said that some reorganization of the Treasury Department was indispensably necessary, and that in the Treasury of the United States and in 23 states out of the 31, then existing, it had been found necessary to provide, in addition to[***12] a Treasurer, a Comptroller or some similar officer.  Debates Maryland Reform Convention of 1851, Vol. 2, page 815.  There was further discussion of the proposal by other members of the Convention, especially by Mr. Randall, who outlined the existing situation, and the fact that the Treasurer was without check or limitation.  It was intended that the Comptroller was to have general superintendence over the fiscal affairs of the State.  Debates Volume 2, pages 830, 831, 833.

   Until 1937, the duties of the Comptroller were mainly those of superintendence and checking.  In that year, the State Income Tax was adopted by Chapter 11 of the Special Session.  The Comptroller was authorized to administer it and returns had to be made to him.  This was the first [**29] instance of the extension of the duties of Comptroller from superintendence to actual assessment and collection. This change was criticized by the Maryland Tax Revision Commission of 1939, and in its report it recommended a new department of revenue and taxes which should take over the assessment and collection provisions of the income tax. In respect to the office of the Comptroller, the Commission said "The primary function[***13] of the Comptroller is to approve all vouchers drawn on the Treasury, and as a member of the Board of Public Works he exercises supervisory authority over all the State Departments, under Chapter 64 of the Acts of 1939.  The Commission believes that the Comptroller should be relieved of the duties of tax assessment.  This is foreign to the nature of his office and necessarily infringes on the other important work which he is required to perform." Report of the Commission, page 13.  This recommendation of the Commission was, however, not adopted, and under Chapter 277 of the Acts of 1939, the Comptroller was continued in charge of all income tax activities.  Since that time the duties of the Comptroller [*146] have been enlarged by directing him to collect not only the income taxes, but the sales tax, Acts of 1947, Chapter 281, as well as some amusement taxes and some liquor taxes.  At the present time the income tax and the sales tax are the most productive source of state revenue.  In view of these enlarged duties, the Comptroller's office is now vastly different from its nature in 1851, or 1864, or 1867.  He is, of course, still the chief fiscal authority in the State, and the[***14] check on the Treasury, and he has not only all the specific duties mentioned in the Constitution, but he has, added to these, the collection of enormous sums in taxes, and his office requires the employment of much more clerical assistance.  According to the Budget of 1949, in his general department there are 14 employees, 4 in his license bureau, 2 in his bureau of revenue estimates, 8 in his gasoline tax division, 12 in his alcoholic beverages tax division, 22 in his income tax division, 6 in his admissions tax division, and 35 in his sales tax division, or a total of 135 employees.  The population of the State has greatly increased, and, therefore, the amount of work necessary to be done to collect taxes has also greatly increased.  When these conditions began to increase his work, the Comptroller then in office started to establish branch offices for some of his separate divisions in Baltimore, and the present Comptroller now proposes to put his income tax division there.  The sales tax division has always been there, but if the appellants are correct in their contention, all of the divisions will have to be brought to Annapolis.  The petition is not quite definite in its allegations[***15] as to how they are to be provided for, but it states that if there is not sufficient room in the State Office Building, other space can be obtained in the City.  This may be true, but in all probability, additional buildings would be required.

   The appellants say that the provision in the Constitution is mandatory, that the Comptroller must keep his office at the seat of Government, and, therefore, he cannot have any department offices elsewhere.  We are not disposed to quarrel with their contention that the Constitution [*147] is mandatory, and that its provision must be literally obeyed.  That has been decided too many times to require any further discussion now.  Archer v. State, 74 Md. 443, 22 A. 8, 28 Am. St. Rep. 261; Buchholtz v. Hill, 178 Md. 280, 285, 286, 13 A. 2d 348. But that is not the be-all and the end-all of the matter.  The question is what the Constitution means by the Comptroller's office, and whether, no matter what changes have occurred in his duties, and in the amount and nature of his work, he is still bound to keep all of his employees at the seat of Government, and to do all of his work there, irrespective of its nature, irrespective of its magnitude, [***16] and irrespective of the best interests of the State.  To put it more simply, perhaps, does "office" mean "main office" alone, or does it mean all branch offices and all departmental offices?  Appellants contend it means all.

   There would seem to be no question that the framers of our several constitutions [**30] from 1851, intended that the specific duties which the Comptroller had then and which are enumerated in the Constitution, should be performed at the seat of Government.  And there are other provisions in the Constitution which indicate that is so.  The records of the Comptroller's office should be kept where they are convenient to the Governor and to the Legislature, since it is made the duty of the Governor, as well as of the Legislature, to inspect and examine the accounts of the State.  But to hold that all added duties provided by the Legislature, including those of a different nature, to wit, the assessment and collection of various taxes, were intended necessarily to be performed at the seat of Government, is to attribute to the members of the constitutional conventions, an utter lack of foresight, and of recognition of the possibility of growth or change of conditions[***17] in the State.  They did recognize this possibility by providing for other duties to be placed upon the Comptroller by the Legislature, and it would be a narrow view of the wisdom of our forefathers to say that no thought crossed their minds of any enlargement of the enumerated duties or of any possible new duties [*148] which in their nature and extent, might require the Comptroller to perform them in part elsewhere.  We have heretofore indicated that there must be a certain amount of elasticity in the Constitution, due to necessary changes in the economy of the State.  Clauss v. Board of Education, 181 Md. 513, 523, 30 A. 2d 779. We have ascribed foresight to the members of the Legislature of 1872.  State Tax Commission v. Western Maryland Railway, 188 Md. 240, 52 A. 2d 615. We know of no reason why less prescience should be attributed to the members of the Constitutional Conventions. We think we would be maligning our forefathers if we should ascribe to them the strict and narrow intention contended for by appellants, and we, ourselves, would be going backwards.  "* * * wise men have enough to do with things present and to come: therefore they do but trifle with themselves[***18] that labor in past matters." Bacon's Essays Civil and Moral "Of Revenge."

   If the Comptroller now finds it necessary to establish branch offices or departmental offices in Baltimore City, or in other portions of the State, where it is more convenient and for the best interests of the State that they should be established, we are unwilling to say that the men who comprised the constitutional conventions intended to forbid that.  We believe what they intended was that the main office of the Comptroller, the place where the books and records of the State are kept, the place where they could be examined, should always be at the seat of Government.  But we do not think they intended to so limit him when new duties or the extension of old duties made it necessary or advisable to have some of the work imposed on him, done elsewhere.  Other and different duties carry with them the necessary implication that they are to be performed in the manner and in the places which best serve the interest of the State.  The appellants say that such a conclusion as this may result in the Comptroller maintaining one room in Annapolis, using a watchman, and doing all his work elsewhere.  We cannot assume[***19] such a reductio ad absurdum, and the [*149] Constitution would clearly forbid such a situation.  But there is no authority in the judiciary to control the members of the executive department in carrying out their duties, so long as no plain violation of the Constitution or the law is found to exist.  The specific transfer, to which the appellants object, is that of the income tax division.  One of the ways in which the state income tax has been efficiently collected, is by establishing a liaison with the Collector of Federal Income Taxes, whose records are available for certain purposes to the Comptroller.  The Federal Collector's office is in Baltimore, and it may be that this fact has something to do with the Comptroller finding it advisable to move the income tax division there.  Whether or not that is the case, it is an administrative matter which we do not find prohibited by the State Constitution, and, therefore, which is none of our concern.

   Since the oral argument in this case, Chapter 29 of the Acts of 1950 has [**31]been enacted, to take effect June 1, 1950.  This statute provides that the Comptroller shall return to Annapolis the admissions tax division, the [***20]alcoholic beverages division and, for the income tax division, office facilities and personnel sufficient to serve the citizens and taxpayers of Southern Maryland and of the Eastern Shore.  The provisions of this act are not yet in force, and it does not require the Comptroller to keep at Annapolis the entire income tax division, so that it does not, in any sense, make the question before us in this case moot.

   A further argument is made by the Comptroller that for a number of years past he has maintained branch offices of one kind or another in the City of Baltimore, and that the Governor and the Legislature have made appropriations for the rental of these offices.  Therefore, he contends there has been an executive and legislative interpretation of long standing of the constitutional provisions, and this should be followed.  This is emphasized by Chapter 29 of the Acts of 1950, hereinbefore referred to.  The omission to include the entire income [*150] tax division in the requirement of the statute indicates an interpretation by the law making power that unless required to do so by statute, the Comptroller can perform the duties imposed on him by legislation elsewhere than at[***21] the seat of Government.  We have frequently recognized the value of such interpretations in cases before us, although there is some difference in the interpretation of statutes and in the interpretation of constitutional provisions, and a positive, definite and clear provision of the Constitution cannot be changed by wrong practice and interpretations placed upon it.  Somerset County Commissioners v. Pocomoke Bridge Company, 109 Md. 1, 71 A. 462, 16 Am. Cas. 874; Maryland Theatrical Corporation v. Brennan, 180 Md. 377, 388, 24 A. 2d 911. We do not, however, think it necessary to invoke this principle in the case before us because we think the interpretation placed upon the constitutional provision by the Comptroller and his predecessors and by the Governor and by the Legislature correctly interprets the meaning of that instrument.

   For the reasons given, the order will be affirmed.

   Order affirmed with costs. 

FRANTOM et al. v. STATE 
No. 143, October Term, 1949
 
Court of Appeals of Maryland
 
195 Md. 163; 72 A.2d 744; 1950 Md. LEXIS 253

 April  14, 1950, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Michaelson, J.

DISPOSITION: Judgments reversed, and new trials awarded.

CORE TERMS:  lottery, probable cause, search warrant, gambling, believing, prudence, pool, lunch, caution, gamblers, affiant, misdemeanor, searched, restaurant, premises described, motion to quash, garage, writers, runners, meal, search and seizure, evidence produced, unlawful search, second floor, horse racing, colored men, seizure, leased, establishment, bookmaking

COUNSEL: Joseph W. Scholz for the appellants.

   Kenneth C. Proctor, Assistant Attorney General, with whom were Hall Hammond, Attorney General, and James [***3]  C. Morton, State's Attorney for Anne Arundel County, on the brief, for the appellee.

JUDGES: Marbury, C. J., Collins, Grason, Henderson, and Markell, JJ.  Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*164] [**744] This is an appeal by William Frantom and James Hutton, appellants, from convictions in four separate cases of violations of the statutes against Lotteries, Article 27, Sections 409, 410 and 411, 1939 Code.

   Article 35, Section 5, 1939 Code, commonly known as the Bouse Act, makes evidence inadmissible in the trial of a misdemeanor procured by any illegal search or seizure or any search and seizure prohibited by the Declaration of Rights of this State.  By Article 27, Section 306, 1939 Code, authorization is given to any judge of the Supreme Bench of Baltimore City or to any judge of any of the Circuit Courts in the Counties, [*165] or to any Justice of the Peace in this State, to issue search warrants upon a showing of probable cause, by sworn application in writing that a misdemeanor or felony is being committed in the premises sought to be searched. The basis of the probable cause is to be set forth in writing in the application.  If[***4] "there is no probable cause for believing the existence of the grounds on which the warrant was issued, said judge must cause it to be restored to the person from whom [**745]it was taken." It is stipulated in these cases now before this Court that a motion was made to quash the search warrant and to suppress and return all evidence secured thereby on the grounds that the application did not show probable cause. The appellants also objected to the introduction in evidence of the articles secured by the search warrant and to the testimony of each witness for the State.

   The affidavit and application made by George W. Rawlings, Chief of Police of Annapolis, for the search warrant, alleges that there is probable cause to believe that a misdemeanor is being committed in that the law in relation to lotteries and gambling is being violated in the premises known as 10 Market Space owned by William Frantom, operated and used as a pool room, with apartments on the second floor, licensed to James Hutton "and your affiant believes founded upon long experience with such violations that a Lottery and Gambling is being conducted on such premises.  * * * On September 17, 1949, Officer J. [***5] W. Moreland while on Patrol, did see several known gamblers, enter this establishment, those known to Officer Moreland, are William E. Frantom, Oliver Clark, 'Reds' Lewis, also noticed several colored men enter and leave the building, between the hours 12:30 P.M. and 1:30 P. M.  On September 19-20-21, 1949, on these days the activities were checked by the affiant and Officer Moreland, and the above activities were still in evidence." The search warrant issued the next day by the judge recites that it appears to him from the application of Chief George W. Rawlings that there is probable cause to believe that a misdemeanor [*166] "to wit: Gambling, Lottery, Bookmaking, Lottery on Horse Racing results" is being committed at the premises described in the application (reciting the facts set forth in the application) and authorized the search of the premises described in the application.

   The appellants contend that the facts set forth in this application for the search warrant and in the search warrant itself did not show probable cause for believing that a lottery and gambling were being conducted in the premises described therein.  Probable cause in search warrant cases has[***6] been discussed many times by this Court.  It has been frequently pointed out that if the facts and circumstances are such as to warrant a man of prudence and caution in believing that the offense has been committed, that is sufficient.  The requirement is less than certainty or proof, but more than suspicion or possibility.  Goodman v. State, 178 Md. 1, 9, 10, 11 A. 2d 635; Riley v. State, 179 Md. 304, 312, 18 A. 2d 583; Wood v. State, 185 Md. 280, 285, 44 A. 2d 859; Smith et al. v. State, 191 Md. 329, 338, 62 A. 2d 287, 291, 5, A. L. R. 2d 386, and cases there cited.

   In the case of Wood v. State, 185 Md. 280, 283-284, 44 A. 2d 859, 862, supra, the affidavit filed for the purpose of obtaining a search warrant for a property in which the affiant believed a lottery was being conducted, related that the officer observed the premises, a lunch room, on four consecutive days and observed at least fifty colored people enter the lunch room on those four days and stay for only two or three minutes.  On two days a colored man wearing a white restaurant apron came to the door, looked up and down the street several times, and then went back to the lunch room.  The lottery[***7] required that the slips be collected by certain persons designated as runners and writers and then returned to the person operating the game.  The affiant believed the persons entering and leaving the lunch room were runners and writers engaged in conducting a lottery. In holding that the facts set forth in the affidavit did not show probable cause for believing the existence of the [*167] grounds on which the warrant was issued, this Court through Judge Markell pointed out that this was a borderline case and that the people entered the restaurant during the morning hours and did not stay long enough for a meal. Further, that it was common knowledge "that most of the patrons of a 'drug store' buy anything but drugs." The restaurant might "sell soft drinks, tobacco, candy and other things and may serve few meals before lunch hours."

   [**746] It could hardly be seriously argued in the cases at bar that seeing several known gamblers enter and leave a pool room on four days between the hours of 12:30 p.m. and 1:30 p.m. was sufficient to warrant a man of prudence and caution in believing that a lottery and gambling were being committed in the premises.  These facts might show[***8] such a possibility but possibility is not enough.  A man of prudence and caution might well believe that when gamblers enter a pool room in the daytime they are entering the premises for the purpose of playing pool, to loaf, or merely to pass away the time.  The facts in this case by no means present as strong a belief of probable cause as those in the case of Wood v. State, supra. We are of the opinion that the facts stated in the application and in the warrant did not show probable cause that lotteries and gambling were being conducted in the premises searched. The motion to quash the search warrant should have been granted and the articles seized thereby should not have been offered in evidence and all testimony with reference thereto should have been excluded.

   Appellee contends that as the premises were leased by the owner Frantom to Hutton there is no showing that Frantom was the lawful occupant of the premises and therefore he has no such interest as entitles him to the constitutional provisions against unwarranted search and seizure. Baum v. State, 163 Md. 153, 156, 157, 161 A. 244; Frankel v. State, 178 Md. 553, 562, 16 A. 2d 93; Bevans v. State, 180 Md. [***9] 443, 448, 24 A. 2d 792; Leon v. State, 180 Md. 279, 286, 23 A. 2d 706, certiorari denied, [*168] Neal v. State of Maryland, 316 U.S. 680, 62 S. Ct. 1107, 86 L. Ed. 1753; Resnick v. State, 183 Md. 15, 18, 36 A. 2d 347. In the very recent case of Kapler v. State, 194 Md. 580, 71 A. 2d 860, 863, the contention was made that as Kapler, the owner of the garage searched, had rented it to someone else he had no such interest in the premises sufficient to justify him in making the motion to quash the evidence obtained as a result of the raid, or to object to its admission in evidence against him. This Court, after a review of authorities stated: "A garage, like a filling station or a tourist cabin, or any other building, may contain evidence, not only against the lessee, but against the owner, and the latter, on trial, has such an interest that he may object to evidence produced by what he claims to be an unlawful search of his property."

   As there was evidence in the cases in addition to that obtained by the search warrant the judgments will be reversed and the cases remanded for new trials.

   Judgments reversed, and new trials awarded. 

RICHARDSON et ux. v. WICKART 
No. 120, October Term, 1949
 
Court of Appeals of Maryland
 
195 Md. 34; 72 A.2d 727; 1950 Md. LEXIS 239

 April  13, 1950, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  boat, yard, gift, sick, bank account, collected, rent, decree, deed, chancellor, boss, confidential relation, lonely, equitable, rented, opened, radio, shed, burden of proving, undue influence, lot of ground, joint account, null and void, new account, lot of land, confidential, eighty-six, atmosphere, declaring, impressed

COUNSEL: Emanuel Klawans, with whom was Albert J. Goodman, on the brief, for appellants.

   Arthur A. Anderson, Jr., with whom were Henry C. Garde and John G. Rouse, Jr. , on the brief, for appellee.

JUDGES: Marbury, C. J., and Collins, Grason, Henderson and Markell, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*36] [**727] This is an appeal by Edward J. Richardson and Louise Richardson, his wife, from a decree declaring[***4] a transfer of $4,300 and a lot of land to Edward J. Richardson by Henry Wickart, appellee here, null and void.

   Henry Wickart, the appellee, for the past forty years has owned a three-acre tract of land on Bodkin Creek in Anne Arundel County and has for a long period of time operated there a marine railway and boat yard. He has improved the [**728]property by four small houses in one of which he lives and the others of which he rents. At the time of the filing of the bill of complaint in this case on June 4, 1948, he was eighty-six years of age.

   [*37] In 1937, Norman Easter, the son of Wickart's divorced wife, began to assist him in the boat yard after his regular day's work.  He worked on week-ends and during the evenings.  On November 3, 1937, Wickart opened an account in the amount of $2,836.17 in the Savings Bank of Baltimore in his name and in the name of Norman Easter, subject to the order of either and at death to go to the survivor.  About the same time he made a will leaving his entire estate to Norman Easter.  He also made an agreement with Easter, who was then working for him, whereby any money received by Easter for boat repairs belonged to Easter, and one[***5] half the amount received for storing, pumping out, towing and hauling boats on the railway was to be divided equally between Wickart and Easter.  Wickart was to receive the total amount of the receipts from house rent and the sale of oil and gasoline.  In July and August 1946, Wickart and Easter had arguments over the collection of money.  Wickart also had a disagreement with Easter's mother-in-law and as a result Easter gave up the house which he had rented from Wickart and quit the premises.  On August 20, 1946, the joint account then in the amount of $7,079.60 was closed out by Wickart.

   In March 1944 a boat owned by Edward J. Richardson, one of the appellants here, sank near Wickart's boat yard and was pulled up on his railway.  At that time Richardson was operating a radio business in Halethorpe.  The boat was in very bad condition and Richardson came down on week-ends to repair it.  He and his wife and family occupied a rented shed on Wickart's property and finally, about a year later, they rented and moved into half of Wickart's house.  In May 1946 the radio business not being prosperous on account of the inability to get parts, Richardson sold it and moved to Wickart's place[***6] permanently. He had no employment, but with a small amount of cash on hand he worked on his boat and fished.  Norman Easter was there at that time and remained until July or August 1946.  From that time [*38] on the testimony as to the negotiations between Wickart and Richardson is in conflict.

   Wickart testified that before Richardson was employed by him and after Easter had left he, Wickart, became sick and at that time Richardson said to him: "'Captain, you are sick and you can't attend to business, if you want me to I will take care of them at 50-50,' and I said 'If you want to take it over it's your own business, but I cannot take care of it.  * * * If he pulled a boat out he was to get half, and if he collected rent he was to get half, and half of any other money paid I was to get half of it unless it was his own business, if he did any work on a boat that was not mine, anything that required anything of mine in the use of it he was to give me 50 and he take 50.  * * * After a heavy rain, pump the boats out and take care of them, and see to it they were properly fastened to the stake, and keep them afloat."

   Wickart testified that while he was sick, but before he was "real[***7] sick" Richardson said, "beings you took us, if the will you have, you have not got anybody, and I am going to take care of you and the place, would not be a bad idea if you will the property to me.  And I said, 'you look all right,' and I will it to him." The will was drawn by a lawyer suggested by Wickart leaving everything to Richardson.  He admitted that at that time Richardson and his wife were treating him very well.  He said at the time he was sick and before he went to bed, Richardson suggested to him that as he had no relatives he turn his bank account over to him.  On August 20, 1946, Richardson drove Wickart to Baltimore and Wickart closed the account in the amount of $7,079.60 in his name and in the name of Norman Easter and opened a new account in the Savings Bank of Baltimore in the same amount in the name of Henry J. Wickart, subject to his order or Edward J. Richardson, without survivorship.  On the next day, August 21, 1946, that account was closed by Wickart and a [**729] joint account in the amount of $7,079.60 was opened in the joint names of Henry J. Wickart and Edward J. Richardson, subject [*39] to the order of either, with right of survivorship.  Wickart[***8] testified that at that time he was the boss.

   He said while he was sick the Richardsons took good care of him and he owed his life to Richardson.  In October 1947, Wickart testified that Richardson came to him and said: "'Now, if you are short of money give me the bank book and I will go up and draw what you want,' and I said, 'That bank book was not to be turned over to you, that was to be yours after my death,' so I thought if that was the case you and me get that book and go up there and draw it all, and I got scared, that is how I came to go up there and have the names changed." Wickart thereupon on October 15, 1947, closed out the joint account then in the amount of $8,603.93, which he had formerly had with Richardson, and opened a new account in the name of Henry J. Wickart alone.  A few days later the Orphans Court for Baltimore City wrote a letter to Wickart inquiring whether there was any inheritance tax due on this transfer.  Wickart said that Richardson saw this letter and "got sore," he doesn't remember just what Richardson said to him at that time.  Wickart then testified: "He promised to take care of me and to do what was right, he said everything would be different, [***9] and I said, 'I have always acted honestly and you have not and no use talking that way,' and he said, 'well, Captain, where [have] I not acted honestly' and he wanted to know, and I said 'one case alone you collected rent from my house $54 which you had no right to, you collected in June and not due until July, and you cannot lie out of that.' He said 'I acknowledge I did wrong but I guarantee I will give you that $54 back and take care of you the balance of your life and treat you right,' I said 'that's pretty heavy demand you make but how can I expect you to live up to it,' and he said, 'I will and my wife will live up to it and everything will be different,' he talked me into it, and I thought, I am alone what am I going to do, and I said, 'I will give you another chance with the understanding you will take care of me and be honest and refund that $54 and be straight with me.' [*40] Then I took him to Annapolis and gave him the land, then I took him to Baltimore and drew the money and gave him the money." Wickart said that he was afraid that Richardson was going to leave and that he would be left alone.  Wickart said that it was at Richardson's suggestion that he gave [***10]him the $4,300 and the land and that Richardson said: "If you will do that I will guarantee everything will be straight and I will take care of you the balance of your life."

   On October 27, 1947, Wickart went to Baltimore and withdrew $4,300 from his account and this was transferred to a new account in the same bank, The Savings Bank of Baltimore, in the name of Edward J. Richardson alone.  Wickart then chose a lawyer in Annapolis and went to him and signed a deed transferring a lot to the Richardsons, fronting 50 feet on the water.  At the Attorney's suggestion Richardson paid Wickart $25 for his lot.  Previously, Wickart had arranged with a surveyor to make the survey.  Wickart testified that after the deed was signed and the money given, Richardson "acted like he was boss," collected money that didn't belong to him and put the gasoline pumps out of order and did not attend to his work.  Wickart said after the transfers: "They did not act right at all, he did not pay me the $54 back for one thing he acted dilatory and common towards me anything I asked him he would go the opposite way always." Wickart said that he and Richardson argued in March 1948 and Richardson said: "'Captain, [***11] I have you where I want you, and you cannot get me off the place, and you are not going to get rid of me on the will like you did Norman, I am going to take care of that now.' I thought that was a threat to my life and I got scared and I telephoned Mr. Carmack, and I said 'come over I need you badly,' and I explained the whole situation to Mr. Carmack, in connection with running the boat yard after Ted [Richardson] took over." Mr. John J. Carmack, a neighbor, remained with him an hour or so.  Wickart stayed [**730] in his own home that night.  At Wickart's request Carmack [*41] took him to Baltimore the next day to make a new will in favor of Carmack.  Several days later Carmack suggested that he buy the property from Wickart, who agreed to a purchase price of $4,000.  Carmack paid Wickart $1,000 in cash and executed a mortgage to Wickart for the balance of $3,000.  The deed contained a provision that Wickart was to live on the property as long as he lived.  With Wickart's consent Carmack ordered the Richardsons off the boat yard property.

   Edward J. Richardson testified that he paid $6 a month rent for the two-room shed and later moved over into half of the Captain's[***12] house.  In June 1946 he rented a separate house from Wickart at $10 a month.  As his radio business was not successful, because he could not get radio parts, he sold that business and moved down to the boat yard permanently.  At that time he had about $900 in cash and was taking a vacation and intended to go back to brick work in the winter.  After Norman Easter left, Wickart did not have any one to help him and he would ask Richardson at various times for help, which Richardson said he always gave him.  About the middle of August 1946, after Wickart had been consulting a doctor, he said Wickart offered him the same proposition that Easter had and also offered to make a will leaving everything to him and offered to put his name on the joint bank account. Richardson discussed this with his wife and says he accepted Wickart's proposition.  The next morning they went to the lawyer suggested by Wickart and after Wickart had talked to the lawyer for about half an hour, the will was executed.  He then went to Baltimore and after the official of the Bank made sure that Wickart knew what he was doing, the bank account was eventually changed to the joint names of Wickart and Richardson, [***13]with right of survivorship.  After they returned to the boat yard the Captain showed him where he kept his bank book and $500 in bills.  Richardson said he then started to work on the place, built a battery shed, put a [*42] roof on the railway engine house, tore down old sheds, and generally cleaned up the place.

   Wickart contracted penumonia in September 1946 and was very ill.  Richardson and his wife nursed him.  Richardson said he collected the rent and attended to the boats and turned over to Wickart the money due him.  In the Fall of 1946, with the consent of Wickart, Richardson worked elsewhere and looked after the boats on Saturdays, Sundays, and after hours.  During the summer of 1947 Wickart was walking around with canes.  Richardson says he attended to practically all of the work at the boat yard and Wickart made no complaint.  Richardson collected most of the money and kept the records.  Mrs. Louise Richardson, who collected the mail, saw a letter come to Wickart marked "Register of Wills" on the outside.  A letter had come the year before when Wickart changed the bank account the first time.  Richardson therefore thought that Wickart had changed the bank account[***14] again.  When he asked Wickart about the letter Wickart denied that he had made the change but let him read the letter.  When Richardson found that Wickart had changed the joint bank account back into Wickart's name, he says that he told Wickart he did not want to stay there and work steadily any more, that he had a wife and family and he was going back to his trade because he did not know what Wickart would do next.  He said that he told Wickart that he would help him when he could.  Richardson says that Wickart told him that he did not want him to quit and that he would put the bank account back as it was before the change.  Richardson then told him that he did not know what would stop him from changing it again and that he thought he should go back to his trade.  He said he would pay Wickart rent but he was not going to be responsible for the boat yard. Richardson then says that Wickart told him that he would take him to the bank, split the bank account and give him half and would also give him a lot of ground on which to build a house.  The next day Wickart turned over to him the $4,300 [*43] and later deeded him the lot. At the time of [**731] the transfer of the $[***15] 4,300 Mr. Wickart was questioned by one of the bank officials and made to understand just what he was doing.  Wickart also arranged for the surveyor to survey the lot and with the attorney to draw the deed as hereinbefore stated.  He said he did not have any difficulty with Wickart and the first time he knew that he wasn't wanted on the property was on February 28th when Carmack came over and gave him orders to get off the place in thirty days.  He said that he never made any threats against Wickart, and the Captain did not tell him why he sold the place to Carmack.  Richardson had driven a well on the lot at the cost of $225.  He denied that he ever caused the gasoline pumps to go out of condition.  He said that he and his wife looked after Wickart when he was ill, nursed him and cooked for him.  He said the reason Wickart gave him the $4,300 was because it was half of the bank account and he wanted Richardson to have it absolutely. Richardson said Wickart wanted him there to look after the yard. He needed help, and that Wickart gave him orders to be the boss there.  Richardson testified also as follows:

   "Q. Then you told Capt. Wickart you would be satisfied if he gave you half? [***16]A. I did not ask him for that money whatever, that's the way he wanted it, and that's the way he had it put himself.

   "Q. You told him if you got one-half, the $4,300, and half of the business you would stay on?  A. I did not tell Captain Wickart no such thing.

   "Q. Did he not say to you if he gave you a piece of ground would that satisfy you?  A. Yes, I said 'I will be tickled to death because I want to build a home so I would like that.'

   "Q. He did ask you if you would be satisfied if you would stay if he gave you $4,300 and a lot of ground? A. Yes.

   "Q. You told him you would be satisfied and you stayed?  A. Yes.

   [*44] "Q. Took care of the boat yard and looked after Captain?  A. I told him, 'Long as you live you have nothing to worry about I will look after you, and you can stay with me as long as you are alive, I will see you through.'

   "Q. As a matter of fact, this was not just a gift to you it was just as you described, he gave you $4,300 and you told him you would take care of the boat yard and take care of him.  A. It was absolutely a gift."

   After Carmack notified Richardson to vacate he wanted to build a house on his lot but his wife would not let him do it because[***17] she said "I cannot stand living alongside of those people cursing the way I have to." Richardson testified that he was not allowed by Carmack to walk on the boat yard property and was not allowed to get a drink of water or go to the toilet.  Richardson therefore vacated the place and used the $4,300 to buy another property.  When asked whether Wickart told him why he sold the property and changed the will, Richardson replied: "He did not tell me what the cause was.  He just said 'I have sold to Carmacks the whole place,' and I said, 'Why did you not sell it to me, you know I have $4,000, you know I could have bought it from you,' and he said, 'you did not ask me,' and I said, 'you always told me you would not sell property to anybody, I am surprised you sold him what you did,' and he said, 'Well, Mr. Carmack is your boss.'"

   Mrs. Lillian Louise Richardson, one of the appellants, testified that when Wickart was sick she took care of him every day, washed him and put clean clothes on him and washed his clothes.  A number of witnesses who kept boats at the yard testified that Richardson was busy at the boat yard, kept it clean and worked hard there, and that Wickart never complained[***18] about Richardson's work.

   John J. Carmack testified that when he went to Captain Wickart's house the night that he was called on the telephone his wife went with him.  He said at that time the Richardsons were outside Captain Wickart's [*45] window listening.  The next day Mrs. Richardson "called me a few names and told me she was out there listening." He further said that he heard Richardson tell Wickart that he was going to make a pauper out of him and send him to the [**732] poor house.  He also said that Mrs. Richardson cursed Captain Wickart.  Mrs. Richardson, when asked of her telephone conversation with Mrs. Carmack, said "All I told her was I thought it was a dirty trick to play on me.  She could have let me know something about it.  I said I thought she was a friend of mine instead of an enemy."

   After Richardson had removed from the property and bought another place, Captain Wickart sent for him to come to his house.  He went there and found some of the Carmacks present.  Wickart told him that he would have to give him back the lot of ground and if he did not do it he was going to sue him.  Richardson refused to discuss the matter with the Carmacks present, and walked[***19] out.

   On June 4, 1948, Henry Wickart filed a bill of complaint against Edward J. Richardson and Lillian L. Richardson, his wife, in which he recited in part the facts hereinbefore set forth, and asked among other things that the appellant be required to account to the appellees for the money collected; that a decree be passed declaring the deed from the appellee to the appellants null and void; that the Court pass a monetary decree awarding the appellee the sum of $4,000 procured from the appellant; that the new property purchased by the appellants be impressed with a lien in the amount of $4,000 in favor of the appellee. After answer filed and hearing in open court, the chancellor passed a decree striking down and declaring void the transfer of the $4,300 to Edward J. Richardson; declaring the deed of the lot in question to be null and void; impressing the sum of $136 accruing on the bank account of Edward J. Richardson in the Savings Bank of Baltimore with a trust in favor of the appellee; and decreeing that there is justly due and owing from Richardson to Wickart [*46]the sum of $3,914 and that a lien in that amount be impressed on the new property purchased by Richardson. [***20] This amount of $3,914 was arrived at by deducting from the sum $4,300, the $225 paid by appellants for digging the well, the $25 paid for the lot and the $136 impressed with the trust in favor of Wickart.  From that decree appellants appeal.

   It could hardly be contended in this case that the relationship of principal and agent did not exist between Captain Wickart and Richardson.  After the employment of Richardson in August 1946 and certainly after Captain Wickart contracted pneumonia in September 1946 Richardson conducted the boat yard business.  In fact, he admitted in his testimony that he was "running the whole thing" and he was the boss because Wickart ordered him to be the boss. Richardson also kept the records and collected practically all of the money. There is no question but that the relation of principal and agent is a confidential one where the agency includes the management of all the business affairs of the principal.  There is also no doubt that at the time these gifts were made Wickart was old, lonely, and sick. Therefore, Wickart and Richardson stood in a confidential relationship and the burden was on Richardson to show that the transaction by which he[***21] received the $4,300 and the lot of land was fair and that the confidence of Wickart was not abused.  Myers v. Myers, 185 Md. 210, 216, 44 A. 2d 455; Brown v. Merchantile Trust & Deposit Co., 87 Md. 377, 390, 40 A. 256.

   This is a case in which the appearance and demeanor of the parties and witnesses is of great help in reaching a correct solution.  It was said by Judge Diggs in the case of Sporrer v. Ady, 150 Md. 60, at pages 70 and 71, 132 A. 376, 380: "We have found occasion, in numerous decisions, to enunciate the rule that this Court is loath to reverse the lower court upon a finding of fact unless the evidence clearly demonstrates that such finding was erroneous, for the sufficient reason, often stated, that the chancellor has the benefit of seeing and hearing the [*47] witnesses, observing their manner of testifying and general demeanor; or, in other words, having the benefit of the atmosphere surrounding the trial.  In the present case, the testimony having been taken in open court, the chancellor had the benefit of this atmosphere, of which we are denied; [**733] and when, on the evidence as disclosed by the record, the question is as close and uncertain[***22] as here presented, we will not disturb the lower court's decision." Garner v. Garner, 171 Md. 603, 615, 190 A. 243; Schneider v. Menaquale, 187 Md. 202, 204, 49 A. 2d 330.

   In the case of Gaggers v. Gibson, 180 Md. 609, 26 A. 2d 395, a daughter assumed control of her father's affairs.  He was eighty-six years old and had been in ill health for more than a year.  When his real estate worth $5,500 was threatened with foreclosure of a mortgage in the amount of $1,200, she persuaded her father to deed the property to her future husband in order to save it.  This Court finding there was a confidential relation between the parties and affirming the chancellor and setting aside the conveyance, after pointing out that Gibson was eighty-six years of age and very feeble, said, through Judge Forsythe, 180 Md. at page 613, 26 A. 2d at page 397: "The existence of the confidential relation creates a presumption of influence which imposes upon the one receiving the benefit the burden of proving an absence of undue influence by showing that the party acted upon competent and independent advice of another, or such facts as will satisfy the court that the dealing * * * was had in the most[***23] perfect good faith on his part and was equitable and just between the parties." See also Mead v. Gilbert, 170 Md. 592, 185 A. 668; Hoffman v. Rickell, 191 Md. 591, 598, 62 A. 2d 597, 599; Brandenburg v. Harshman, 193 Md. 104, 65 A. 2d 906.

   The burden of proving that these transfers were not made by undue influence, were in good faith and equitable and just between the parties, being on the appellants, how is that burden met?  It is true that while Richardson conducted the boat yard more money was made than [*48] during any other similar period.  Although as appellee contends, during that period there was probably more demand for boat work, yet some one had to do the work and Richardson did it or saw that it was done.  The appellants in their brief contend "Although Richardson, unlearned in the law and trying to retain what he received, termed the transfers a gift, it is plain from his testimony, as well as his subsequent conduct, that he understood and intended that he had an executory obligation in return, of remaining on the place and helping Wickart for his life time." The testimony in this case does not bear out appellants' contention.  Although pressed, as hereinbefore[***24] set forth, to answer the question: "As a matter of fact, this was not a gift to you it was just as you described, he gave you $4,300 and you told him you would take care of the boat yard and take care of him," in the affirmative, Richardson characterizes this transfer of one third of the total assets of this old, sickly, lonely, vacillating man of meager means, as "absolutely a gift." Richardson therefore understood by these gifts to him that there was no obligation on him to do what Wickart understood he was legally bound to do, that is, to take care of Wickart as long as he lived.  Although Richardson said he told Wickart that he could stay with him as long as he was alive, he did not consider he had an executory obligation.  Richardson's actions and those of his wife after the gifts were made are at least questionable.  These gifts were not equitable and just between the parties and the decree should be affirmed.

   Decree affirmed, with costs. 

GRANT v. CURTIN et al. 
No. 63, October Term, 1949
 
Court of Appeals of Maryland
 
194 Md. 363; 71 A.2d 304; 1950 Md. LEXIS 339

 February  8, 1950, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J. and Michaelson, JJ.

DISPOSITION: Rulings affirmed and cause remanded.

CORE TERMS:  sister, caveatrix, funny, little people, mental incapacity, legally sufficient, undue influence, new trial, incapacity, died, remember, delusion, unjust, testatrix, General Rules of Practice, testator, cigarette, forget, time limit, street, conversation, eyesight, daughter, seeing, couple, talk, evidence of mental, arteriosclerosis, admissible, psychosis

COUNSEL: Linwood L. Clark and C. M. Weidemeyer, for appellant.

   O. Bowie Duckett and John G. Rouse, Jr., for appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson and Markell, JJ. Markell, J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*367] [**305] This is an appeal from rulings, on motion for "judgment" n. o. v., setting aside the verdicts and answers, and directing opposite verdicts and answers, on issues of mental incapacity, knowledge of contents of a will and undue influence sent from the Orphans' Court after a caveat to the will of Mrs. Mary Grant Griffin.  The testatrix died August 1, 1948, leaving a will dated November 5, 1943.  Caveatrix filed notice of objections to probate and of caveat on August 6, 1948, and later filed a caveat. On November 4, 1948[***8] issues were ordered sent to the circuit court to be tried by a jury.  On January 12, 1949 a motion of caveatees for directed verdicts was granted on two issues, and rulings were reserved on the other three, on which the jury found for caveatrix. A motion for "judgment" n. o. v. or, in the alternative, for a new trial, was filed January 14, 1949.  The court on April 28, 1949 granted the motion n. o. v., set aside the three verdicts and answers and directed opposite verdicts and answers, and overruled the motion for a new trial. On June 3, 1949 caveatrix appealed.

   Caveatees have moved to dismiss the appeal because it was not taken within thirty days.  Rule 2 of the Rules and Regulations Respecting Appeals, as revised, effective January 30, 1945 and ever since, provides, "All appeals * * * allowed from any judgment or determination of a Court of Law, to the Court of Appeals * * * shall be taken within thirty days from the date of such judgment or determination, and not afterwards; and the transcript of the record shall be transmitted to the Court of Appeals within sixty days from the time of the appeal taken * *." [Italics supplied.] In the revision of January [*368] [***9]30, 1945 the only change made in Rule 2 was the change in the periods specified from "two months" and "three months" to "thirty days" and "sixty days" respectively.  Before January 30, 1945 Rule 2, as such, had been in force at least since 1909, (see also 134 Md. 3, 1920) and, as Art. 5, sec. 6 of the Code, without change in wording since 1888 until 1924.

   [**306] The words of Rule 2, standing alone, unquestionably were and are broad enough to include appeals from "determinations" at a trial of issues sent from the Orphans' Court.  Kamps v. Alexander, 133 Md. 198, 104 A. 427; Bradley v. Bradley, 123 Md. 506, 91 A. 685. But since 1922 the words of Rule 2 have not stood alone.  Because on a verdict on such an issue there is not technically any "judgment" entered in the court of law, this court in the cases cited held that the period of "two months" ran from the date of verdict, even though a motion for new trial was pending more than two months.  To prevent loss of the right of appeal in such cases, Chapter 356 of the Acts of 1922 provided that "All appeals from any decision or determinations or rulings of a court of law in cases of issues sent from the Orphans' Court to a[***10] court of law to be tried, to the Court of Appeals * * *, shall be taken within two months from the date the verdict is rendered, unless a motion for a new trial is duly filed, in which case the appeal shall be taken within two months from the date upon which such motion for a new trial is denied, overruled or dismissed; * *".  Bastable v. Bastable, 144 Md. 213, 214, 124 A. 866. Without mentioning Rule 2, as such, the Act of 1922 amended section 6 so as to except appeals "from decisions and determinations or rulings in cases of issues sent from the Orphans' Court to a court of law to be tried", and added, as section 6A, the above quoted provision for such cases.  In the Code of 1924 sections 6 and 6A, as enacted in 1922, were codified as sections 6 and 7.  Rule 2, as such, was never changed by this court but was readopted without change in 1933.  In the Code of 1939 section 6 was codified in the form of Rule 2, [*369] without the exception made by the Act of 1922, but section 7 was recodified without change.  It may be that there is no reason why the periods of two months and three months should be retained in cases of trial of issues from the Orphans' Court, but there is also[***11] no reason for obliterating the provision in the act for computing the periods from disposition of a motion for new trial. This court has changed Rule 2 in one respect only, and has not superseded, in whole or in part, the Act of 1922.  The act remains in force.  The motion to dismiss is overruled.

   Caveatrix contends that, under the General Rules of Practice and Procedure, Part Two, subd. VI, "Revisory Power of Courts over Judgments, Orders and Decrees", Rule 1, the trial court on April 28, 1949 had no power to grant the motion for judgment n. o. v., after expiration of the term of court (and the "period of thirty (30) days" under the rule) after the motion was filed.  The rule mentioned has no application to a motion for judgment n. o. v., which is authorized by Part Three, subd. III "Trials", Rule 8, which in turn is applicable to verdicts on issues from the Orphans' Court.  In Rule 8 the word "judgment" is not used in a technical sense, but includes "decisions" or "determinations" on such issues.  Schmeizl v. Schmeizl, 184 Md. 584, 597-599, 42 A. 2d 106. Moreover, neither of the rules mentioned imposes a time limit on action by the court on motions timely filed.

   On[***12] the merits the question is whether there is evidence legally sufficient to show mental incapacity or undue influence. On this question, of course, any conflict in evidence for the opposite parties must be resolved in favor of caveatrix. Caveatrix, Kate, is the sister, the only surviving relative, of the testatrix, Mary.  Both were born in Ireland, Kate in 1870, Mary (Kate says) fifteen years or more earlier.  Kate came to this country when she was eighteen or twenty, Mary earlier.  Each spent most of her life in this country as a domestic servant.  In 1901 Mary entered the employ of Mrs. May H. Curtin [*370]in Philadelphia, as a nurse, when Mrs. Curtin was eighteen and her daughter (now Mrs. Mae Cochran) was a young baby.  Mrs. Curtin's husband was a naval officer.  In 1906, while they were living at the Naval Academy, their son Roland (now a Captain in the Navy) was born.  Mrs. Curtin and Roland are the caveatees.  Mary nursed Roland from his birth.  In 1914 Mrs. Curtin's husband died. She and her children, and Mary with them, continued to live in Annapolis. Mrs. Curtin obtained employment, rented a house, 204 [**307] King George Street, and left Mary to run the house[***13] and take care of the children. In 1919 the daughter married a Naval Academy graduate.  In 1920 the daughter (Mrs. Cochran) went to Connecticut, and her mother, with Mary, went there and stayed with her till her oldest child was born.  Mary was with Mrs. Curtin continuously from 1901 till she went to Mrs. Cochran in 1920.  She was with Mrs. Cochran, and took care of all Mrs. Cochran's three children, till 1927, when she married John Griffin, who owned the house that Mrs. Curtin had rented for some years after Mrs. Curtin's husband's death.  Mary was married from Mrs. Cochran's house in Philadelphia.  At the wedding, at the Roman Catholic Church in Ardmore, Pennsylvania, at Mary's request, Mrs. Curtin gave her away.  Kate, who was then employed in Philadelphia, was at the wedding.  Kate says, "I was bridesmaid.  I gave her away.  I was on the alter when she was married." -- an obviously impossible combination of roles.  Mrs. Cochran "imagines" Mary was ten years younger than Kate says she was.

   During Mary's married life, Kate "came down from [Philadelphia] on weekends, maybe twice a year", and at Christmas, to visit.  She says, "When I came to Mr. Griffin's funeral, my sister asked[***14] me after the burial was over if I would come and stay with her.  She was very lonely and not feeling well and she asked me to come and live with her and I agreed to come and stay with my sister Mary".  She did not come of her own accord; Mary asked her.  "She always wanted me." She [*371] says [January, 1949] she has lived at 204 King George Street "six years, I think.  I came here right after Mr. Griffin died. I think in January he died." She had previously lived in Philadelphia, doing laundry and different things.  At that time, Kate says, Mary "was not able to get around very well.  She went out a couple of times, but only a few times she went out. Once or twice to church.  I was with her and she went to get some coal, and that was all.  We went in a taxi and afterwards I did all the marketing for her and paid the bills." She did the marketing because "my sister was not able to go out on the street. * * * She did not have very good eyesight. Only one eye and very limited in the other.  * * * If she bought what she wanted, she would leave it behind and forget it, as she did many times.  Just forget it.  * * * Her memory was very bad.  * * * She did not go out very often. [***15] Anything in the house, she could not remember where she put it.  She would put things away, and she could not remember where she put anything.  * * * She did a little work around, not very much.  A little bit of something she could do in the house.  * * * She was not [able at all to take care of business on the outside].  I did everything for her." There was not at any time any ill-feeling between Kate and Mary.  "Never a word.  I loved my sister." Kate was at the Emergency Hospital "over two years ago and in the hospital for two weeks." "Just my sister" visited her there.  "She took a taxicab.  I told her to come that way.  She got a taxi to take her there and to go home, and he would always see that she got in the house straight".  "We had a little treat myself and Mary, at times, but I never was drunk." Kate never got "really drunk.  Very often I drink".

   Kate met Mrs. Curtin in Philadelphia when Mrs. Cochran was a little baby. Mrs. Curtin very often visited at 204 King George Street. Mary was a servant for the Curtins for a good many years.  "She [Mrs. Curtin] ordered her [Mary] around and she did things for her when she was living there, or anything she wanted she did[***16] for her." Mary "treated her [Mrs. [*372] Curtin] nice.  I think they had fusses about different things at different times." Kate knows Roland Curtin; she "saw him in her [Mary's] house a couple of times.  They were looking for an apartment to live in with his wife.  Mary gave him his lunch". She never saw him acting unfriendly or trying to boss Mary.  He was "just sitting and talking with her." He did not seem "over" friendly.  "Not over zealous".  "My sister told her [Mrs. Curtin] to get out of the house many times. She [Mrs. Curtin (?)] fussed with her and with me." Kate had something to do with Mrs. [**308] Curtin going to Carvel Hall "on two days' notice", [evidently while Mrs. Curtin was renting a room or rooms in Mary's house].  Kate heard Mary tell Mrs. Curtin she had to leave the house; "Mrs. Curtin and myself were quarrelling all the time.  She would not let anybody in the room to clean it."

   Kate recalls that Mrs. Curtin came and took Mary out with her "only that one time she took her out in the morning.  * * * I don't know the date.  * * * A few years or so [after Kate came down here].  She told me she was going out with Mrs. Curtin in the morning. [***17] * * * She was out a couple or three hours.  I went to the door many times to see whether she was coming and I did not [sic.] And at last I saw her in the kitchen and I asked her where she was and she said she was on an errand with Mrs. Curtin and I said what was it.  And she said, 'she asked me not to tell you,' and so she did not tell me.  * * * She was very tired, and I made her a cup of coffee.  And she lay down on the lounge and she slept all afternoon, when I had to wake her up for supper.  [She did not eat very much supper], she was very, very tired." Kate first knew of Mary's will after Mary's death.  She infers or assumes that the will was executed on the day described by her.

   John Griffin's will is not before us.  From the testimony it appears that the house was left to Mary and constituted all or substantially all her estate. John and Mary had a joint bank account which on January 27, 1940 amounted to $4025.24, on October 1, 1941 (before [*373] his death) to $3497.77, on January 1, 1942 (after his death, about the time Kate began living with Mary) to $3104.67, on November 5, 1943 (when Mary's will was executed) to $1709.85, and at Mary's death to $284.83. [***18] On August 16, 1943 Kate opened, with a deposit of $3900.00, an Annapolis bank account, in her name in trust for her and Mary, "joint owners, subject to the order of either; the balance at the death of either to belong to the survivor".  On November 5, 1943, the account amounted to $3500.00; on January 10, 1946, she deposited $3800.00; at Mary's death the account amounted to $820.04; the next day Kate withdrew $430.75. Kate brought that money [$3900.00 and presumably the subsequent $3800] from Philadelphia.  She says, "My sister wanted me to bring down my money.  I was going to live with her and bring it here.  I was not going back to Philadelphia, long as she lived, and I wanted to be with her." She says the money she withdrew from her account during Mary's life "was spent on the home", i.e., on their joint expenses, except two or three hundred dollars for herself -- and about $300 for her own hospital expenses, and she paid Mary's funeral bill [presumably out of the $430.75].  Why she should have paid the funeral expenses or, why if she did pay them, she should not collect them from the estate, does not appear.

   Mrs. Curtin, her daughter and her son all testified[***19] at length and in detail to the long friendship and affection between Mary and the Curtin family.  Evidently no similar relations existed between Kate and the Curtins. There is no evidence, except Kate's testimony, that there was ever any friction between Mary and any of the Curtins.  Kate does not say there was any friction before or near the date of the will.  Mrs. Norman, a high school teacher, a neighbor of Mary, who had known her since 1928, one of the witnesses for caveatrix, says she has heard Mary "mention them [the Curtins].  She was very fond of all of them, and Roland was closer to her than any of the rest.  The only one of the family [*374] I ever saw in the house was Mrs. Curtin.  She used to have a room there for a while.  I don't know how long." Mrs. Curtin says that from November, 1944 to July, 1945 she rented two rooms from Mary, and from January, 1947 to August, 1947 one room.  Roland says he was in Annapolis from February, 1942, on duty at the Naval Academy in 1943, till he left to take a sea command about the middle of November, 1943.  During his time at the Academy, when he stopped in to see her, they would talk about all kinds of things and many times she[***20] would say, "I am not going to be here much longer.  I am going to leave you my house".  She took him out [**309] in the garden to tell him she had made the will.  She did not want Kate to know about it, "because Kate would raise so much good hell".  "If she don't know about it, I won't have to answer to her about it." She said, "If Kate knew I done it, she would kill me, or tear it up.  I do not want her to know about it, and we won't talk about it, and we don't want you to say anything about it."

   Mrs. Curtin says John died in October, 1941; at Christmas Mary had two couples living in the house; Mary dictated to Mrs. Curtin a letter to Kate telling her to come in the afternoon of the 23d or the next morning, but that she would have to leave on the 26th because the people who lived there and occupied the rooms were coming back; after New Year's Mary told Mrs. Curtin Kate had "given up her place and come here with her robe and clothes to take care of me"; previously Mary and Mrs. Curtin had had an understanding that when the two couples left Mrs. Curtin would come back and live in the house with her and rent the house, let her have one room to rent to girls, but take over the expenses [***21]of the house and live with her; Mary said, "Now my sister has come. What can I do?"; Kate remained.  After September, 1942 Mary put in an envelope a deed to John from his father, his father's will and his stepmother's will, came to Mrs. Curtin and asked her to keep them; in November, 1943 Mary came to Mrs. Curtin's [*375] house and got the papers; she said she was going to make a will; Mrs. Curtin asked whether she had a lawyer, she said, "I want the daughter [Mrs. Duckett] of the man who drew these papers [the late Judge Nicholas H. Green]; Mrs. Curtin asked whether she had told Mrs. Duckett she was coming, she said "No", Mrs. Curtin said "I better phone".  Mrs. Curtin called Mrs. Duckett and said, "I have a friend to make a will.  Would you meet me at the front door of your office building".  Mrs. Curtin was in a hurry, and Mrs. Duckett did meet her there.  Mrs. Curtin said, "Here are the old wills.  The only living relative I know of is her sister, who is now living with her"; Mary started to interrupt, Mrs. Curtin said, "Hush, I have not time," Mrs. Duckett said, "That's all right. She can tell me." Mrs. Curtin told of John's sister who was in a sisterhood of the church; [***22] Mrs. Curtin said, "I think she knows what it is all about", "You be sure she knows what she is doing and knows what it is all about", and left Mary at the front door on the first floor.  Mary [later] walked out.  Mrs. Curtin [had] asked her if she wanted a taxi and she said, "I don't want that.  I am going to walk to the coal yard and pay a bill and order some coal".  Mrs. Curtin says, "She wanted to and I suppose she did." A week or two later Mary came to Mrs. Curtin's house and said she wanted Mrs. Curtin to get the will, that she had left it at the lawyer's office, and wanted Mrs. Curtin to lock it up in the bank; Mrs. Curtin went up, Mary got the will, the will was sealed, they took it over, and Mrs. Curtin told the cashier that Mary wanted the papers locked up; he took them and handed Mrs. Curtin a receipt after checking what was in the envelope; he was going to give Mary the receipt, and she said, "No, give it to Mrs. Curtin"; Mary said she would like Mrs. Curtin to keep the receipt, she said, "Your have a safe deposit box.  Put it in there", so Mrs. Curtin did; from the time the will was put in the bank until she died, "she never saw it and I never saw it."

   [*376] [***23] Mrs. Ducket remembers that she went down and met Mary at the step at the front door; she believes Mrs. Curtin was the one who left here there.  She says, "I took her back up the steps into my private office, and closed the door and she talked to me for about an hour.  She told me what she wanted done very concisely, without pausing.  Usually an elderly woman tells you this and that and the other thing.  I was impressed with her definiteness and her conciseness.  I did not stop there.  I questioned her about her other relatives.  She told me she had a sister Kate.  She told me she had a sister-in-law, a sister of John.  She told me her estate was the house.  There was little money in the bank, but not too much -- practically not a great deal left.  I asked her if she cared to mention the sister of John in the will and she said she was a nun, and she understood she was [**310] not interested and could not receive it even if she left it to her.  Then we talked about the papers.  She seemed reluctant to talk about Kate, and she came back to the Curtins.  She said 'They are like my own family.  Captain Curtin is like my own baby.  I want the property to go to him, and I would like to[***24] provide something for his mother for life.' I explained to her the legal phraseology to leave it for her life with remainder to Captain Curtin.  She seemed to understand that and that is what she seemed to want.  We went back to Kate, and I said, 'Tell me more about Kate.  Is she living with you, or where does she live?' She told me she was living with her, 'living with her uninvited', and she said she drinks and she said she is to leave as soon as she has made arrangement to do so.  We went back to the question of the will, the Curtins again, and I told her I would like to provide in the case of the death of the people mentioned in the will, and she said, 'Yes, yes'.  That was what she thought important, particularly with Captain Curtin in the Navy and with the war going on.  She then told me to provide his mother the power to will it.  I went back to Kate again and she looked at me and said, 'Do I have to leave something to Kate?  I owe her nothing'.  [*377] I said, 'You don't have to leave your property to your own children, much less your own sister.' There was nothing for me to tell her except, 'No, you don't have to leave your property in any particular way'.  It came to[***25] me at that time how a lawyer can really make a will for his client; that if I did any more talking about Kate, if I even tried to tell her it would look better after she was dead if she did leave something to Kate in her will, it would be my will.  It would not be Mary G. Griffin's will.  She again told me she wanted Mrs. Curtin and Captain Curtin -- she wanted the property to go to them.  I felt I had gone as far as I could go in determining anything further in regard to her wishes.  Her wishes were definite, and I was amazed to find there was any question of her mental capacity here.  She was old, she was feeble, she was weak.  She did not see well, but her mind, to my humble opinion, was very alert, very clear.  * * * She impressed me as being clear-minded.  She did not falter, and did not change back and forth as many people do when making a will."

   The will was written up and executed the day she came to the office.  "When we got through I asked her if she would like to wait a while, while the will was prepared.  After all it was not difficult and would not take too long to be typed up.  Or would she like me to come to the house to have it executed?  And she told me she would[***26] rather wait and would like to have it signed right then.  The will was typed and I talked to her in the meantime.  I never noticed anything queer or peculiar about her.  She stated her business and she does not elaborate.  She does not ramble on.  When people said she does not keep to one subject too long, I was surprised.  We kept to one subject for about an hour, but I could well imagine this woman would not let people pry into her business that she did not want people to pry into.  The will was finally typed and brought to me in the office and I gave it to her and asked Mary to read it. She said it would be difficult for her to read.  She did not see too well, and she requested me to read it [*378] for her.  I read it to her and explained it paragraph by paragraph exactly as it is written in the will." Every word of it.  "When she was signing it, she was very selfconscious, apologized for her signature, said it probably would not be too straight.  She could not write as well since her eyesight was failing, but I remember she said, 'Oh, I can see the line.' She followed the line along and signed it."

   By the will the testatrix gave all her property to Mrs. Curtin for life and [***27]at her death to her son Roland, or if he should predecease his mother, as she might by will direct, and appointed her executrix without bond.

   Mamie Dutton, a witness for caveatrix, says she had known Mary about nineteen years and Mary and Kate got along "very nicely indeed, splendid.  She came over and cried many times and said she did not know what she would do without her sister." After John died, witness heard Mary [**311] discuss her property. "She was going to give it to her sister because her sister was so lovely to her. She was going to give it to her." That was on several occasions when she would get blue and downhearted and talk it over with witness.  "She asked her sister to come stay with her and said her sister was so lovely to her.  She was going to leave everything to her.  She repeated that dozens and dozens of times. Whether she meant it, I don't know." The same witness says, "After he died, she began looking about seeing funny little people. She would say, 'Look over there. You will see them looking in my hall there.  They are running around'; and I would look over there and see no such thing." She insisted there were funny little people. "I tried to tell[***28] her and assure her of things but she still said they were there.  Said they were funny little people. [She saw them] across the street and when she was on her dying bed she still saw them.  [Since 1941] she had been seeing them all these years; she would come to the house where I stayed and say the same thing."

   [*379] Another witness, Irene Jones, who had worked for Mary off and on from 1933 till she died, says Mary used to say, "If it were not for Kate I don't know what I would do.  She is a lovely sister to me.  As long as Kate and I live, this is our home".  The same witness says, as to Mary's physical and mental condition, "She had begun to fail after he [John] died. She used to put down things and forget about them even while he was living and she did it more after he passed on and we could ask her where it was after she put it down and she said she did not know.  She would light a cigarette and forget where she put it and light another one.  That would still be lit.  * * * she would say, 'Irene, fix those curtains so those folks cannot look at me', and I said, 'Mrs. Griffin, I do not see any'.  But I fixed them because she asked me to.  * * * She didn't say men. [***29] She said people.  I would look and not see anything.  I would say, 'I do not see anyone across the street', and she said, 'Pull down the shades', and I would fix the curtains as she wanted them." Mrs. Norman, the high school teacher, says Mary "said she did not know what in the world she would do without Kate.  There was nothing in the world she could do to repay her.  * * * [During 1942 and 1943] she was kind of old and after that she began to fail.  With reference to her property "she did not say anything directly except to say that Kate had been the best kind of a sister. They were very close to each other.  'This is our home, and as long as Kate lives it is her home'.  * * * She could not talk much.  Mary could not remember much.  [If you asked her questions,] she did not answer.  She might evade some of them and then she would not tell you".  * * * "Can you give some example of her feebleness of memory?  A. I know she had the habit of leaving cigarettes down, because I picked them up myself off the burnt tables.  She did not want to trust herself downtown.  Outside of that I cannot say." Louis Senisi, another witness, who had worked with John and had known Mary since her[***30] marriage, says Mary and Kate "got along fine.  Kate was wonderful [*380] to her.  * * * when she [Kate] came to live with her sister they got along wonderful with each other.  * * * One day I was over there three or four years ago.  She went down, and after she fell down, she could not walk any more.  So one day she said, 'Mr. Senisi, I won't be here much longer and don't forget Kate after I am gone.  I want you to come over here and take care of the house like you do for me.' She told me that different times.  'Don't forget Kate, I won't be here much longer.'" Mrs. Dorothy L. Hughes, who had known Mary only since March, 1945, says, "She told me one time on the porch -- it was summer time, 'At her death everything she had would go to her sister Kate'.  She made that statement definitely to me.  When she was discussing Kate with me, she said, 'I don't know what I would do without Kate.  She waits on me, she treats me like a baby.' * * * Our conversations were just like anybody else's going to visit any one.  She would come to visit me, and I to see her." She could not hold a prolonged coherent conversation. "Q. Did you notice any queer or unusual acts or [**312]conduct[***31] or declaration by Mary since you knew her?  A. Well, not that I would recall particularly".

   Harley T. Williams, who had known Mary since September, 1947, when he took a room there, says Mary always said, "Nothing she [Kate] would not do for her sister, * * * Kate meant everything to me." She made no reference to any property, "except she said, 'This is mine and Kate's home'".  He says, "Miss Mary could not remember anything she had or what she did.  She would light a cigarette and lay it down in the kitchen, and she was quite forgetful.  One morning about six o'clock she set a wastebasket on fire.  She was downstairs and lit a cigarette, and she had let me in her room and threw it in the wastebasket behind the door".  He also says, "She said, 'I cannot write a receipt for you, but I will not charge you but once'.  And she never did."

   Except Dr. Edith Rodler, who first saw Mary on February 12, 1948, no physician who had ever seen her testified.  Dr. Arnold Eichert, a psychiatrist at Crownsville [*381] State Hospital, a witness for caveatrix, heard the testimony of all the other witnesses for caveatrix, and testified, over objection, that assuming the truth of all the testimony[***32] he had heard, his opinion is that on November 5, 1943 Mary was of unsound mind, incapable of making a valid deed or contract.  He states that opinion "on the evidence that at the time of her death she was suffering from hardening of the arteries of the entire body", a chronic and progressive disease, "and the evidence indicates that in this case the progress probably started long before 1943.  The reason I say that is that the symptoms of this illness are loss of memory, general breaking down of the body, and delusions and hallucinations of various sorts. We know that she was in failing health prior to 1943 and we know that before 1943 there was evidence of loss of memory, which was the little things she forgot around the house such as cigarettes lying around.  As I understand it, she did it most frequently -- more than expected of the average normal person. I might say that a lot of the symptoms are such as a normal person would show, but she showed them to an exaggerated degree.  We have further evidence of the loss of memory from her conversation -- she was unable to stick to one subject for any length of time.  We have the evidence that before 1943 she saw, as one of the witnesses[***33] put it, 'funny little people'.  Of course, any one can say or think they see somebody over there who is not there.  As I get it, she saw these funny little people frequently, but not as normal men or women, but funny little people. Significant that she was interpreting the impressions in her mind in an unrealistic fashion.  She was seeing something, not only that was not there but could not be there.  I think that covers it.  I want to repeat that her physical condition was failing at the time, or shortly after Mr. Griffin's death, and while the physical condition, in itself, does not necessarily mean the mental condition is serious, we use it as evidence to know that the process was going on.  In other words, the body was wearing out and this wearing out was very [*382] evident by her seeing things.  [Hardening of the arteries] decreases the normal supply [of blood] to the brain so that the brain tissues are not properly nourished and the individual cannot think properly, the way the normal person can." This lessens the thinking faculties of the mind.  On cross-examination, he said, Arteriosclerosis is a common ailment "among elderly people." There are people suffering from[***34] arteriosclerosis in severe form who are perfectly balanced mentally and able to transact their business after any age, "provided the arteriosclerosis does not affect the brain." You can tell when it affects the brain "at the point where the memory becomes poor".  The name of her illness is "psychosis cerebral arteriosclerosis." "'Psychosis' means an illness in which the person is incapable of knowing the difference between right and wrong.  * * * I don't know whether she did [suffer from a condition that she did not know the difference between right and wrong.] I have not the evidence of that.  * * * I am giving you what we call 'an educated guess.' I heard certain evidence and I formed an opinion on the basis of what I heard compounded [**313] on years of experience.  * * * The most significant factor [that brings him to his opinion] is her seeing the funny little people. * * * I don't remember the words.  It was one of the colored people, in fact, two of them.  One of them said 'funny little people', and one said, 'People looking in the window'.  She would look and see no one there.  * * * You could not [see any funny little people, due to defective eyesight.] Defective[***35] eyesight might cause somebody to not be sure of what they saw, but normal people would not say they saw funny little people." There is in evidence indication of what type of people the funny little people were.  "I remember one of the witnesses said she looked and saw no people.  Then if people were walking down the street, why should they be funny? * * * The word 'guess', after all, is something without foundation.  I think I have a foundation.  It is based on evidence, I think I have evidence to form my opinion.  Q. Would you say it is a conjecture?  A. You may get [*383] me into some word in saying a precise definition of that which I do not know.  I am giving an opinion based on the evidence I heard."

   The evidence presents a common, but uncommonly sharp, contrast between evidence on false issues and absence of evidence on the material issues.  If the question for the jury were whether the will, when made, was an unjust will, or whether, after it was made, it became unjust and ought to have been changed, it may be assumed that there would have been evidence to go to the jury, at least on the latter question.  If these were questions for juries, to be decided on the testimony[***36] of disappointed relatives and alleged oral statements by testators made before or after making their wills, few wills could stand against attack.  Such questions are not questions for juries but for testators, to be determined by making wills with the formalities required by law.

   Caveatrix contends that the provisions of this will show both undue influence and mental incapacity. "* * * the provisions of a will, no matter how unnatural or unjust they may be, are not in themselves, unaccompanied by extrinsic facts indicating that the execution of the will was the result of some influence or pressure exerted upon the testator, sufficient to create an inference that it was procured by undue influence".  Woodruff v. Linthicum, 158 Md. 603, 610, 149 A. 454, 457, This doctrine has been recognized and applied in extreme cases of unjust and unnatural wills.  Drury v. King, 182 Md. 64, 67-68, 32 A. 2d 371; Saxton v. Krumm, 107 Md. 393, 400, 68 A. 1056, 17 L. R. A., N. S., 477, 126 Am. St. Rep. 393; Longanecker v. Sowers, 148 Md. 584, 587, 129 A. 896. Anyone with sufficient faith in the depravity of mankind is at liberty to assume or suspect that Mrs. Curtin, her son, Mrs. Duckett, [***37] any one or more of them, in some unknown way, procured the making of this will by undue influence. But there is no evidence to support any such suspicion.  There is nothing unnatural in a wish to give the property to the Curtins, who for at least forty out of the last forty-two years had apparently been much closer [*384] to the testatrix than her sister. Whether this wish was greater than any wish to provide for her sister, only the testatrix could determine.

   Nor can the provisions of a will, without additional evidence, constitute legally sufficient evidence of mental incapacity. Horner v. Buckingham, 103 Md. 556, 559-560, 64 A. 41; Smith v. Biggs, 171 Md. 528, 532, 189 A. 256; Smith v. Shuppner, 125 Md. 409, 416, 93 A. 514; Cronin v. Kimble, 156 Md. 489, 493, 144 A. 698. Statements, made in a will or when the will was made, at variance with alleged prior or subsequent oral statements, cannot be made evidence of mental incapacity by calling them delusions. Berry v. Safe Deposit & Trust Co., 96 Md. 45, 54-56, 53 A. 720; Plummer v. Livesay, 185 Md. 450, 461-463, 44 A. 2d 919; cf. Johnson v. Johnson, 105 Md. 81, 65 A. 918, 121 Am. St. Rep. 570.[***38] The witness who testified that Mary said she was going to leave everything to Kate, and "repeated that dozens and dozens of times, "added, "Whether she meant it, I don't know." Nor do we.  There is no evidence of delusion when Mary told Mrs. Duckett that Kate was "living with me uninvited", and [**314] "I owe her nothing." Even a sister may overstay her welcome, and the scope of an invitation may be misunderstood or repented.  What, if anything, she "owed" her sister was a matter of her own opinion.  In a pecuniary sense there is nothing to show that on November 5, 1943 she owed her anything.  Kate herself testifies that she was invited, but not that the invitation was ever repeated or that Mary ever made any professions of obligation or gratitude to her or said anything about the "funny little people" who meant so much to Dr. Eichert.

   There was no legally sufficient basis for Dr. Eichert's opinion.  When evidence to show mental incapacity relates to circumstances which are not obscure and need no explanation by a physician, and are legally insufficient to support an inference of incapacity, the testimony of a medical expert is not admissible to show that he draws such an inference[***39] from such evidence, and if admitted, is [*385] not legally sufficient to show incapacity. Berry v. Safe Deposit & Trust Co., supra, 96 Md. 58-62, 53 A. 724-726. Even the opinion of a family physician, which is admissible as such, is not legally sufficient to show incapacity, when the reasons he gives for his opinion are insufficient.  Horner v. Buckingham, supra, 103 Md. 563-564, 64 A. 43-44. Since the Berry will case psychiatry has doubtless made great advances. But the differences between science and pseudo-science, between application of medical science in the field of medicine and application or misapplication of it in the courts, and between the legitimate roles of the judge and the expert witness, have not been obliterated or materially changed.  Cf. Maranto v. Maranto, 192 Md. 214, 218, 64 A. 2d 144, 145. Dr. Eichert shows no special qualification to determine, from the meagre and trivial circumstances narrated in the testimony, whether Mary showed "to an exaggerated degree" symptoms a normal person would show, or did, "more than expected of the average normal person", things "every one does at some times or other." The more rare the "normal person" becomes[***40] in the eyes of the psychiatrist, the more necessary it is to remember that capacity to make a will is not limited to the "normal person" -- still less to that statistical abstraction, the "average normal person", and that to invalidate a will an abnormality or delusion must actually impair testamentary capacity at the time when the will is made.  Loss of memory and inability "to stick to one subject for any length of time" did not prevent Mary from carrying on a long consultation with Mrs. Duckett about her will or from remembering never to charge Mr. Williams a second time for rent paid.  Ability to evade, or avoid answering, questions of an inquisitive acquaintance -- or sister -- requires some strength of mind and of will.  Most of us at times engage in conversational chatter that may receive more concentrated attention than it deserves.  A witness who said Mary could not hold a prolonged, coherent conversation also said, "Our conversations were just like anybody else's going to visit anyone." Capacity [*386] to make a will does not necessarily include capacity to suffer bores gladly or habit of handling cigarettes with care.  Mary had impaired eyesight, and apparently could [***41]not see persons across the street. She wanted her window shades kept down to avoid being seen by unseen observers.  If she either imagined or invented "funny little people" they were as harmless as Santa Claus, and did not influence her will.

   Dr. Eichert's definition of "psychosis" indicates confusion either as to the meaning of "psychosis" or "the meaning of meaning" or the difference between answering a question and asserting a conclusion or consequence -- admittedly untenable -- from an unstated answer.  Scientific discoveries originate in hypotheses, which are primarily guesses.  But before scientific hypotheses become facts or evidence of facts they become more than guesses.  By calling his opinion an "educated guess" Dr. Eichert has not shown that it is more than a guess.

   Disposition of the issue of mental incapacity necessarily includes disposition of the issue of knowledge of the contents of the will.  If Mary was not mentally incompetent, Mrs. Duckett's testimony conclusively shows that the contents of the [**315] will were read to and known to her at the time it was executed.

   Caveatrix denies the sufficiency of the evidence of execution of the will. If we assume, [***42] without deciding, that the rulings on that issue, after verdict on January 12, 1949, were appealable on June 3, 1949 because of the intervening motion for new trial on other issues, the point made is without merit.  Due execution and attestation of the will, as recited in the attestation clause, was proved by the testimony of Mrs. Duckett, one of the attesting witnesses, who also testified that the other attesting witness, Mrs. Cowell, at the time of the trial was in Colorado.  Mrs. Cowell's signature was proved, in accordance with Art. 93, sec. 368, by the testimony of Mrs. Duckett and another witness.  If section 368 applies only "to wills that are produced and offered for probate" (Tinnan v. Fitzpatrick, 120 Md. 342, 349, 87 A. [*387] 802, 804), it applies not only in the Orphans' Court but also in the court of law on trial of issues.  Saxton v. Krumm, 107 Md. 393, 401, 405, 68 A. 1056, 17 L. R. A., N. S., 477, 126 Am. St. Rep. 393; Conrades v. Heller, 119 Md. 448, 461, 87 A. 28. Independent of section 368, the attestation clause itself is prima facie evidence of due execution (Conrades v. Heller, supra; Woodstock College of Baltimore County v. Hankey, 129[***43] Md. 675, 680, 99 A. 962; Van Meter v. Van Meter, 183 Md. 614, 619, 39 A. 2d 752); and Mrs. Duckett's testimony is conclusive evidence.

   Rulings affirmed and cause remanded. 

BERNARD v. STATE 
No. 130, October Term, 1948
 
Court of Appeals of Maryland
 
193 Md. 1; 65 A.2d 297; 1949 Md. LEXIS 292

 April  1, 1949, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, Jr., C. J. and Clark, J.

DISPOSITION: Order affirmed, without costs.

CORE TERMS:  warden, writ of error coram, nobis, convicted, false testimony, habeas corpus, indictment, indicted, riot, notice of appeal, criminal case, destroyed, appointed, employ counsel, grand jury, existing statutory, evidence to prove, adequate remedy, original trial, material fact, error of fact, new trial, message, modification, accusations, regularity, common-law, sentence, assault

COUNSEL: Clarence B. Bernard, in pro. per.

   Hall Hammond, Attorney General, Harrison L. Winter, Assistant Attorney General, and James C. Morton, Jr., State's Attorney for Anne Arundel County, for the appellee.

JUDGES: Delaplaine, Collins, Grason, Henderson, and Markell, JJ.  Delaplaine, J. delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*2] [**297] This appeal was brought here by Clarence B. Bernard from an order of the Circuit Court for Anne Arundel County dismissing his petition for a writ of error coram nobis.

   [*3] On March 26, 1943, petitioner was convicted of larceny by the Circuit Court for Montgomery County and was sentenced to serve four years in the Maryland House of Correction.  On June 2, 1945, while he was serving that sentence, a riot occurred in the House of Correction, and he was one of the prisoners who were tried by the Circuit Court for Anne Arundel County[***4] for riot and assault. On August 2, 1945, he was convicted thereof and he was given an additional sentence of five years.  He claims that he was not lawfully tried and convicted.

   First, appellant alleges that he was prosecuted for the riot upon information given to the warden of the House of Correction by five other inmates; that the accusations made by them were founded upon malice; that, as a result of these false accusations, he was charged with riot and [**298] assault upon seven officials at the House of Correction; and that these seven men will testify that they were never assaulted by appellant at any time.  He further alleges that he was indicted as a result of false testimony given to the grand jury; and that the warden refused to furnish him with a copy of the indictment, although the warden did read the indictment to him.

   Secondly, appellant alleges that he wanted to send a telegram to his wife to ask her to employ counsel for him, and he delivered the message to the warden on July 11, 1945, but it was not read to his wife until July 25, only a few days before his trial.  He alleges that he did not request the Court to appoint counsel, but was forced to accept counsel[***5] appointed by the Court, and his counsel would not allow him to call witnesses in his defense.  He also alleges that there was no evidence to prove that he committed the offenses for which he was indicted; and that, after he was convicted, he wanted to appeal, but the warden destroyed his notice of appeal.

   The purpose of the writ of error coram nobis, which is an old common-law writ recognized in this State, is to bring before the court a judgment previously rendered by it for the purpose of modification on account of some error of fact which affected the validity and regularity [*4] of the proceedings, and which was not brought into issue at the trial of the case.  The writ differs from an ordinary writ of error in that it does not remove the case to a higher court for review, and it lies only for errors of fact not apparent of record, instead of for errors of law apparent of record.  It does not lie to permit a review of the evidence given in connection with the issues actually tried in order to determine whether witnesses who actually testified before a jury sworn on those issues testified falsely.  The writ will lie to set aside a judgment obtained by fraud, coercion, [***6] or duress, or where a plea of guilty was procured by force, violence, or intimidation, or where at the time of the trial the defendant was insane, when such facts were not known to the trial court when the judgment was entered, or where the accused was prevented by fraud, force, or fear from presenting defensive facts which could have been used at his trial, when such facts were not known to the court when the judgment was entered.  The writ will not lie to correct an issue of fact which has been adjudicated even though wrongly determined; nor for alleged false testimony at the trial; nor for newly discovered evidence.  The writ will not lie where the accused has another adequate remedy at law, as by motion for a new trial, an appeal to a higher court, or other existing statutory proceeding.  Hawks v. State, 162 Md. 30, 157 A. 900; Keane v. State, 164 Md. 685, 166 A. 410.

   We find that petitioner failed to allege any ground upon which the writ of error coram nobis should issue.  A review of the allegations in the petition does not show the existence of any material fact not known to the Court at the original trial. See United States v. Calp, D. C., 83 F. Supp. 152.[***7] His allegations that he was deprived of constitutional rights, including the right to the assistance of counsel, were contained in his petitions for habeas corpus. His first petition came before the Court of Appeals in Bernard v. Warden of Maryland House of Correction, 187 Md. 273, 49 A. 2d 737. There he alleged that the indictment had been obtained by false testimony; [*5] that no sufficient evidence was produced at the trial to convict him; and that the warden had attempted to prevent him from taking an appeal to the Court of Appeals by destroying his notice of appeal. We found from affidavits that there was no foundation for the charge that a paper intended as an appeal had been handed to the warden and destroyed by him.  Petitioner also filed a petition for habeas corpus in the United States District Court on practically the same grounds.  The writ was refused and an appeal from that action was dismissed by the Circuit Court of Appeals.  Bernard v. Brady, 4 Cir., 164 F. 2d 881. Two petitions for habeas corpus were likewise denied by the Supreme Court of the United States. Bernard v. Wright, 326 U.S. 689, 66 S. Ct. 134, 90 L. Ed. 405; Ex parte Bernard, 330[***8] U.S. 805, 67 S. Ct. 975, 91 L. Ed. 1263. Another petition came before the Court of Appeals in State ex rel. [**299] Bernard v. Warden of Maryland Penitentiary, 191 Md. 741, 59 A. 2d 744, wherein he alleged that he was forced to take a lawyer appointed by the Court, and that he was not allowed to communicate with anyone until shortly before his trial.  Here again this Court held that he had failed to allege any violation of fundamental right, and we denied his application for leave to appeal from refusal of the writ.

   For the reasons stated we accordingly affirm the order of the Court below dismissing this petition.

   Order affirmed, without costs. 

KARGER et al. v. STEAD et al. 
No. 45, October Term, 1948
 
Court of Appeals of Maryland
 
192 Md. 230; 64 A.2d 155; 1949 Md. LEXIS 230

 February  10, 1949, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  military service, redeem, Sailors' Civil Relief Act, redemption, demurrer, reargument, occupied, tax sale, purchaser, computing, paying, dwelling, heir, order sustaining, right to redeem, decree, cloud, administrator, commencement, appealable, mortgagee, mortgage, ratified, amend, died, dead, deed, judicial action, right of action, statutory right

COUNSEL: Noah H. Hillman for the appellants.

   No appearance for appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Henderson, and Markell, JJ. Markell, J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*232] [**156] This is an appeal from an order contained in a "memorandum and opinion" filed April 13, 1948, in which the court said, "On May 1, 1947, I filed an opinion and order herein sustaining the demurrer of the defendant, Elizabeth B. Stead, to the amended bill of complaint.  On May 19, 1947, the plaintiffs filed what they called a motion to permit a reargument. * * * some time later * * * [***5] the matter was set down for hearing.  I listened carefully to everything the plaintiffs' solicitor had to say, and have re-examined the authorities cited in my opinion, and have read some others.  I still feel that the conclusion reached in my opinion is right", and "denied" "the motion filed by the plaintiffs herein on May 19, 1947." There has been no final order dismissing the bill.  An order sustaining a demurrer to an entire bill is appealable. Young v. Cockman, 182 Md. 246, 249, 34 A. 2d 428, 149 A. L. R. 1006. Of course, an order overruling a motion for reargument is not.  As the "memorandum and order" shows on its face that a reargument in fact [*233] was granted and heard, we think it may properly be regarded as an order sustaining a demurrer and this appeal may be entertained and plaintiffs need not submit to a final decree in order to appeal.

   The amended bill of Harry J. Karger and the administrator of the estate of his wife, Nancy J. Karger, against Elizabeth B. Stead and the County Commissioners of Anne Arundel County, alleges that: Karger was in the Army from September, 1942 until August 13, 1945.  His wife died November 22, 1940.  He is her sole heir at law. [***6] She was an heir of her mother Sybil J. Bell, who is dead [and, therefore, it is argued, must have died before November 22, 1940]; other heirs being unknown.  The wife, at the time of her death, was the holder, by assignment in 1937, of a mortgage from her mother on a lot and a small building, used as a dwelling, at Idlewilde, Anne Arundel County, acquired by the mother in 1931.  No part of the mortgage debt or interest has been paid; the taxes from 1932 to 1936, inclusive, were paid by the mortgagee, 1937, 1938 and 1939 taxes by the mortgagor.  The property was sold for non-payment of 1940 taxes by the Treasurer of Anne Arundel County on October 14, 1941, to the County Commissioners for $51.13 and the sale was finally ratified December 7, 1942; [when it was reported is not stated].

   Karger learned of the sale in April, 1944, long after it had been ratified. By inquiry through the Legal Assistance Division of the Judge Advocate's Office and the Committee on War Work of the Maryland State Bar Association, he learned that the [**157] County Commissioners had sold the lot to defendant Stead, and she had not finished paying, and no deed had been executed conveying it to her. [***7] In May, 1944 the Commissioners were "requested to hold up settlement" until arrangement could be made with defendant Stead "to release her interest", and she was asked to make some arrangement.  She refused to relinquish her claim or interest.

   Defendant Stead "has been able to use" and, plaintiffs are informed, "has used the premises since she arranged [*234] to purchase" them "but has paid no taxes, nor made any payment to the plaintiffs for said use".

   Plaintiffs have a substantial interest in the property through Karger's wife, as mortgagee and heir; [at the argument her interest as heir, not as mortgagee, was relied upon].  Plaintiffs are ready, able and willing to pay all taxes in arrears; a sufficient amount to do so has been placed in the hands of plaintiffs' solicitor, in trust, [not paid into court].  Karger claims the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, U. S. Code, Title 50, sec. 560 [sic] and Article 87A, Maryland Code 1947 Supplement, "Soldiers' and Sailors' Civil Relief".

   The bill prays a decree (a) setting aside the "tax sale proceedings, upon payment of taxes in arrears and current taxes" and (b) that defendant[***8] Stead "has no interest in the property" and that payments made by her to the County Commissioners be returned to her; and general relief.

   The original bill was filed by Karger on August 30, 1945.  On March 19, 1946 a demurrer of defendant Stead was sustained with leave to amend within 30 days. On February 24, 1947 letters of administration were granted on the estate of Karger's wife and an amended bill was filed by Karger and the administrator. On May 1, 1947 defendant Stead's demurrer to the amended bill was sustained, with 30 days in which to amend again.  No demurrer or answer was filed by the County Commissioners.  In this Court no brief was filed or argument made for either defendant.  Vagueness of allegations in the bill are attributed by plaintiffs to the handicaps on communication while Karger was in the military service, but in two and a half years since he left the service little was done to clarify the bill.  However, for present purposes we accept plaintiffs' interpretation of their own bill as alleging that Mrs. Karger's mother died before she did, though the amended bill alleges that "the whereabouts" of the mother "have for several years been unknown" to Karger and[***9] "she is dead", and that Karger "does [*235] not know where [she] is," but her solicitor was advised that the County Commissioners have a letter addressed to her, returned [when?] by the post office marked "dead".

   As Judge Clark says in his original opinion, "It is not alleged in the amended bill that the plaintiffs are in possession of the property [on the contrary it is alleged that defendant Stead "has used" it]; nor is the invalidity of the tax sale proceeding asserted.  The bill, accordingly, cannot be considered a bill to remove a cloud from the title.  * * * If they are in possession of the property and wish to attack the validity of the tax sale, they may amend their bill to a bill to remove the cloud thereby cast on their title. Free v. Greene, 175 Md. 36 [199 A. 857, 117 A. L. R. 717], is a familiar example of a bill of that nature.  [See also Queen v. Anderson, 191 Md. 522, 530, 62 A. 2d 612, 615.] If, however, the plaintiffs are not in possession of the property, they will have to bring ejectment.  Kelly v. Nice, 141 Md. 472 [119 A. 333]." Moreover, even if plaintiffs were in possession, there is no allegation showing that the sale was reported[***10] too late, which was the ground of invalidity in Free v. Greene, supra, and Queen v. Anderson, supra. Thus no question is presented as to the validity or construction of the Act of 1941, ch. 208, as applied to sales made and ratified after June 1, 1941.

   As Judge Clark also says, plaintiffs' claim, under section 205 of the Soldiers' and Sailors' Civil Relief Act of 1940, 54 Stat. 1178, as amended, 56 Stat. 769, 50 U. S. C. A. Appendix, § 525 [or section 500], 50 U. S. C. A. Appendix, § 560, [or both], a right to redeem this property from the tax sale; this is a bill for the redemption of [**158] the property.  "When property is sold for the non-payment of taxes the County Treasurer is required to report the sale to this Court and obtain its ratification thereof before conveying the property to the purchaser. The owners thereof, 'prior to the day of sale, may redeem the same by paying into Court, to be paid to the purchaser thereof within one year and one day from the date of such sale, the amount of the purchase money and [*236] all subsequent taxes paid by the purchaser', etc.  See Sections 496, 496A, and 496B of Article 2 of the Code of Public Local Laws, as [***11]amended by the Act of 1931, ch. 280.  As the property was sold on October 14, 1941, the redemption period would, ordinarily, have expired on the expiration of one year and one day thereafter." Karger, however, claims that under the Soldiers' and Sailors' Civil Relief Act of 1940 all or a portion of his period of military service must be excluded in computing the period for redemption and therefore his bill for redemption is in time.  Like Judge Clark, we shall assume, without deciding, that "Karger had, on August 30, 1945, when the original bill was filed, such an interest in the property as entitled him to redeem the same from the tax sale, (see Stewart v. Wheatley, 182 Md. 455 [35 A. 2d 104]) and that one seeking to redeem may maintain a new and original proceeding for the purpose, instead of paying the money into court in the case where the sale is reported, as provided for by the statute, supra, and as was, apparently, done in Stewart v. Wheatley, supra, (see also Free v. Greene, 175 Md. 36 [199 A. 857, 117 A. L. R. 717])".
 
   The sole question presented then is whether the asserted right to redeem existed on August 30, 1945.  Section 205 of the Soldiers' and[***12] Sailors' Civil Relief Act of 1940, as amended by the Act of October 6, 1942, provides: "The period of military service shall not be included in computing any period now or hereafter to be limited by any law, [regulation, or order] for the bringing of any action [or proceeding in any court, board, bureau, commission, department, or other agency of government] by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action [or the right or privilege to institute such action or proceeding] shall have accrued prior to or during the period of such service, nor shall any part of such period which occurs after the date of enactment of the Soldiers' and Sailors' Civil Relief Act Amendments of 1942 [Oct. 6, 1942] be included in computing any period now or hereafter provided by any law for the redemption [*237] of real property sold or forfeited to enforce any obligation, tax, or assessment." 50 U. S. C. A. Appendix § 525. [Portion added by amendment in 1942 here italicized.  Portion here bracketed not contained in section 205 of Federal Soliders' and Sailors' Civil Relief Act of 1918.  Portion [***13] not here italicized or bracketed was section 205 of Act of 1918.] In Ebert v. Poston, 266 U.S. 548, 553, 45 S. Ct. 188, 190, 69 L. Ed. 435, it was held that the corresponding section 205 of the Federal Soldiers' and Sailors' Civil Relief Act of 1918 did not apply to a statutory right to redeem real estate, after foreclosure through advertisement and sale under a power of sale in a mortgage, by payment, to the purchaser or the register of deeds, of the sum bid with interest and fees without resort to court proceedings.  "Section 205 does not apply to transactions which are effected without judicial action. The statutory right to redeem from a sale by advertisement is not a right of action. It is a primary right as distinguished from a remedy.  The defeasible title of the purchaser at the sale becomes absolute if the mortgagor fails to avail himself of the right within the statutory period.  The purchaser's title is extinguished if it is availed of.  The bill in equity is merely the remedy by which the right, if still existing may be enforced".  If in this statement "judicial or administrative action" be substituted for "judicial action" and "right to institute an action or proceeding" [***14] for "right of action", the statement is not less true and is applicable to section 205 of the Act of 1940, before the amendment of 1942.  Payment into court under the Anne Arundel County tax statute is no more a judicial -- or administrative -- proceeding than payment to the register of deeds under the Michigan mortgage statute. Plaintiffs apparently recognized [**159] this by filing a bill in equity to redeem without paying anything at all into court.  Section 205 of the Act of 1940, before the 1942 amendment, therefore has no application in the instant case.  The Supreme Court has said that the provision added to section 205 in 1942 was added "to remedy what this Court had held to be a [*238] casus omissus in a preceding Act.  Ebert v. Poston, 266 U.S. 548, 554, 45 S. Ct. 188, 190, 69 L. Ed. 435." Le Maistre v. Leffers, 333 U.S. 1, 4, 68 S. Ct. 371, 372.

   Originally Karger had nine days after October 6, 1942 in which to redeem, i. e., to and including October 15, 1942.  Under section 205, as amended on October 6, 1942, no part of the period of his military service after October 6, 1942 can be included in computing this nine-day period.  Therefore he had[***15] nine days after August 13, 1945, i. e. to and including August 22, 1945.  His original bill was filed on August 30, 1945, i. e., eight days after any right to redeem had expired.

    Section 500 of the Act of 1940, [50 U. S. C. A. Appendix, § 560], is applicable when taxes in respect of "real property owned and occupied for dwelling * * * purposes by a person in military service or his dependents at the commencement of his period of military service and still so occupied by his dependents or employees are not paid", and gives a "right to redeem or commence an action to redeem such property, at any time not later than six months after the termination of such service".  In the instant case it is not alleged that the property was owned and occupied for dwelling purposes by Karger or his dependents at the commencement of his military service or was still so occupied by his dependents or employees thereafter.  On the contrary, it is alleged that defendant Stead "has used" it.  Section 500 therefore has no application in the instant case.  In LeMaistre v. Leffers, 333 U.S. 1, 68 S. Ct. 371, it was held that section 500 does not restrict the application of section 205 to property [***16]owned and occupied for purposes specified in section 500.  It was not held, however, that in a case to which section 500 is not applicable at all, section 500 could so operate as to expand the period for redemption under section 205.

   At the argument plaintiffs indicated a desire for further leave to amend. It is not clear just how they could effectively amend. However, our affirmance of the decree will be without prejudice to the right to apply to the lower court for such leave.

   Decree affirmed, with costs. 

HANKINS et al. v. PUBLIC SERVICE MUTUAL INSURANCE CO. 
No. 59, October Term, 1948
 
Court of Appeals of Maryland
 
192 Md. 68; 63 A.2d 606; 1949 Md. LEXIS 217

 January  13, 1949, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Judgment reversed, with costs, and case remanded for the entry of a judgment as herein set forth.

CORE TERMS:  insured, notice, insurer, assured, broker, premium, duty, solicit, obtainable, territory, home office, insurance business, insurance agent, written notice, branch office, countersign, ambiguity, license, waived, policies of insurance, policy of insurance, identification card, authorized agent, insurance broker, life insurance, unambiguous, construing, appointed, licensed, appoint

COUNSEL: Hyman Ginsberg and Harry Leeward Katz, with whom were Ginsberg & Ginsberg on the brief, for Hamer, one of the appellants.

   Louis M. Stauss for Hankins, one of the appellants.

   Harrison L. Winter and Benjamin C. Howard, with whom were Miles, Walsh, O'Brien & Morris and Richard E. Lankford on the[***7] brief, for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, and Henderson, JJ.  Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*72] [**607] This is an appeal by James Edward Hankins and Ralph A. Hamer, appellants, from a declaratory judgment declaring Public Service Mutual Insurance Company, appellee, not liable, under a certain policy of liability insurance issued by the appellee, by reason of an automobile accident on August 26, 1946.

   On February 16, 1945, the appellee issued to the appellant, James E. Hankins, a policy of insurance from February 13, 1945, designated [**608] as a non-assessable participating national standard automobile liability policy. The effective term of this policy was one year which was extended for an additional year to February 13, 1947.  The policy in effect was an agreement on the part of the appellee to pay on behalf of Hankins all sums for which he might become obligated to pay as damages for personal injury, death and property damage arising out of the ownership, maintenance or use of his automobile.  The policy contained the provision that there would be no liability on the part of the appellee unless, [***8] as a condition precedent thereto, Hankins should have fully complied with all the terms of the policy.  The policy also contained the provision "when an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable".  On the reverse side of the policy was also the following: "IMPORTANT -- Every Accident, HOWEVER SLIGHT, MUST IMMEDIATELY Be Reported To The Home Office Of The Company".

   On August 26, 1946, the son of Hankins, while driving his father's automobile, was involved in an accident wherein the son of Ralph A. Hamer was injured.  Hankins' son stopped, rendered aid and when the Hamer child had been sent to the hospital, went home and reported to Hankins what had happened. Hankins told his son to go and report the accident to the police and also to Mr. Harry O. Webster, the agent of the appellee at Linthicum Heights, from whom Hankins had bought the policy.  The son reported the accident to the Ferndale Police Station, [*73] then went immediately to Mr. Webster's office, which is in his home, and then and there filled out a form reporting the accident. This form was attached to an identification[***9] card. This identification card set forth the offices in Maryland equipped to render claim service.  The offices mentioned were in Salisbury, Hagerstown, Cumberland and Baltimore.  The identification card was given to Hankins by the appellee when the policy was written.  Hankins, Jr., left the report with Webster and Webster told him he would take care of it from thereon.  The Chancellor found that the Hankins boy then "went on his way, believing he had done everything he, or his father, were required to do".  The report, however, did not reach appellee's branch office in Baltimore until October 10, 1946.

   On the following day, October 11, 1946, the appellee received from an attorney a carbon copy of a letter written to Hankins, the assured, on October 10, 1946, advising Hankins that he represented the parents of the Hamer child.

   On October 17, 1946, the appellee wrote a letter to Hankins reserving its rights under the policy of insurance because of his alleged failure to notify the appellee promptly of the happening of the accident.  On March 26, 1947, suits for damages were filed against the appellant, Hankins, and his son by the Hamer child and his father.  When the writs were[***10] served the insured and his son immediately took the copies of the declarations to Webster and he transmitted them to the appellee.  On April 24, 1947, the appellee wrote Hankins and his son asking them to come to its office in Baltimore on April 28, 1947, with which request the Hankins complied.  At appellee's office the Hankins executed a non-waiver agreement which provided that the appellee might defend the suits without waiving any "provision, term, condition or limitation in the policy contained", but without requiring the appellee to defend.  Appearances were then entered in the damage suits by appellee's attorneys who filed the pleas.  On December 3, 1947, this suit for a declaratory [*74] judgment was filed by the appellee.  On December 31, 1947, Hamer filed a petition to intervene in the suit for a declaratory judgment and this leave was granted. Answers were promptly filed by Hankins and Hamer and a hearing held in open court.  From the judgment holding the appellee not liable on the liability insurance policy in question, the appellants appeal here.

   During the trial of this case the manager of the Baltimore branch office of the appellee testified that the appellee[***11] operates through agents who are licensed to do business in the State of Maryland by the Maryland Insurance Department.  If a person agrees to represent that company it completes [**609]the standard form of license application furnished by the Insurance Department, and with a $2 fee paid by the appellee for the license, the Department at the request of the appellee issues a license to the agent authorizing him to represent appellee as its agent to do business on "classes of business that we write and that we are authorized to write in the State of Maryland".

   The appellee offered in evidence its agency agreement with Webster.  This agreement characterized Webster as "The Agent".  It provided in part: "1. TERRITORY. The Company does hereby make, constitute and appoint the agent to represent it in the prosecution and conduct of its insurance business in the following territory, LINTHICUM HEIGHTS AND NEAR-BY VICINITY." This agreement also provided in part: "2. DUTIES. The agent is appointed for the purpose of procuring and transmitting applications for insurance of the type set forth in Paragraph 3 therein." (Paragraph 3, in turn, sets out the various types of insurance which are[***12] issued by the company.) "Collecting premiums on such applications and policies and paying to the company the premiums on the insurance so effected and performing such other duties as may be required by this agreement or by the company from time to time.  The agent agrees to use his best ability and judgment in submitting risks to the company." This contract also contained the following provision: "13. LIMIT OF AUTHORITY.  [*75] The agent is in no case authorized to obligate the company beyond the limitations laid down in the written or printed instructions issued by the company nor to alter, modify, waive, or change any of the terms, rates or conditions of the company's policies or contracts." Hankins, the insured, had a fifth grade education.  Harry O. Webster did not testify in this case.

   The primary question for our decision in this case is whether the notice given by the insured to Harry O. Webster was notice to the insurer, the appellee here.  As the insurance policy provides that "written notice shall be given * * * to the company or any of its authorized agents * * *" and as the provision on the reverse side of the policy, providing that every accident must be reported [***13]to the home office of the company does not limit the notice to the home office of the company only, the question is narrowed as to whether Harry O. Webster was an "authorized agent" of the appellee at the time he received the notice of this accident.

   In reviewing the authorities outside of this State on the question as to whom notice of an accident should be given under liability insurance policies the question is annotated at some length in 76 A. L. R. pages 28 to 37, and in 123 A. L. R. 952 and 953. It is there pointed out that the clauses in liability insurance policies are "considerably lacking in uniformity" as to whom notice of accidents shall be given.  Some policies use the words "the company", others "the association", others "the insurer", others "at its home office".  It is stated that the most common form provides that notice shall be given to "the company" or "its duly authorized agent".  The policy here in question, of course, provides notice shall be given "to the company or any of its authorized agents".  We have been unable to locate nor have we been referred to any case with the exact language as the one before us here with comparable facts and with a[***14] comparable contract between the insurance company and the agent who sold the policy.  In Pateras v. Standard Accident Ins. Co., 1929, 37 Ohio App. 383, 174 N. E. 620, 621, (automobile [*76] liability), the notice was required to be given to the company at its home office or its "duly authorized agent".  It was there held that such an agent must be authorized, either expressly, or impliedly, to receive such notice on behalf of the insurer. 

   In the case of New Amsterdam Casualty Co. v. Plaza Square Realty Co., 1935, 101 Ind. App. 174, 195 N. E. 289, the owner, landlord and tenant public liability policy provided that the assured should give immediate written notice of an accident and notice of any claim or suit resulting therefrom to the executive office of the company in Baltimore, Maryland, or to its authorized representative.  The accident occurred on the 17th day of January, 1929.  The insured had no notice of the accident until September 24, 1929.  On September 27, 1929, it gave written notice of the accident to a brokerage agency through which the insurance [**610] was written.  Suit was brought on November 14, 1929, and the insurance company was immediately notified[***15] by the insured of the filing of the suit.  The insurance company contested the action on the policy because it claimed that the insured had failed to notify the appellant of the occurrence of the accident within a reasonable time after it occurred, claiming that it received no notice of the occurrence of the accident until after September 27, 1929.  The Court in that case held that the notice given to the appellant, through the brokerage agency by which the insurance was written, on September 27, 1929, was timely.

   Under the rules aiding application of standards of interpretations of contracts it is said in the Restatement of the Law, Contracts, Section 236, page 330: "d. Since one who speaks or writes, can, by exactness of expression, more easily prevent mistakes in meaning, than one with whom he is dealing, doubts arising from ambiguity of language are resolved against the former in favor of the latter.  The other party will ordinarily be the promisee of the promise in question, so that it is generally true that the contract, if ambiguous, will be construed in favor of the promisee; but as the promisor is not invariably [*77]the draftsman of his own promise the[***16] rule is more exactly that stated in Clause (d).  (Clause (d) Where words or other manifestations of intention bear more than one reasonable meaning an interpretation is preferred which operates more strongly against the party from whom they proceed, unless their use by him is prescribed by law.) This rule finds frequent application in regard to policies of insurance, which are ordinarily prepared solely by the insurance company, and therefore, the words of the policies are construed most strongly against it.  In some instances, however, the exact language not only of insurance policies, but of bills of lading and other contracts, is determined by statute.  In such cases there is no reason for such an interpretation."

   Code, 1947 Supplement, Article 48A, (Insurance), Section 82(b), gives the following definition of an agent: "An agent, other than a life insurance agent, is hereby defined to be an individual acting under written authority from any insurance company to solicit insurance and write and countersign policies of insurance and collect premiums therefor, and if so authorized by the company, to appoint and remove solicitors for any company for which he is licensed as agent, to[***17] report to and act through him." Section 82(d) defines a solicitor as follows: "A solicitor is hereby defined to be any individual acting under written authority from a company or duly licensed agent for any company other than a life insurance company or a branch office of a life insurance company, having authority to appoint solicitors, to solicit insurance for such company on behalf of the agent or company or branch office of the company appointing him, but without the power or authority to issue or countersign policies or otherwise bind the company for which he is licensed."

   In the case before us the contract between Webster and the appellee, although not giving him the power to write and countersign policies of insurance, does specifically appoint him "The Agent" to represent it in the prosecution and conduct of its insurance business in a definite territory. The contract provides specifically as [*78] his duties the transmitting of applications for insurance, collecting premiums thereon, and also provides that he shall "perform such other duties as may be required by this agreement or by the company from time to time." Furthermore, the above definitions of "an agent" and[***18] "a solicitor" was adopted by Chapter 895 of the Acts of 1945 and Webster's contract with the insurance company was continued after that Act was passed without change.  This contract specifically named Webster as an "Agent", not as a "Solicitor".

   Code, 1947 Supplement, Article 48A, Section 92B provides that before the Insurance Commissioner shall issue a license to act as agent, solicitor, broker or broker's solicitor, with certain exceptions not applicable here, he shall require the applicant to satisfy him that he has had sufficient education or experience in the insurance business and to satisfactorily pass such an examination [**611] relating to the kind of insurance to which the license may extend.

   Turning to the Maryland authorities, in the case of American Casualty Co. v. Ricas, 179 Md. 627, 22 A. 2d 484, 486, the appellee, Ricas, on June 15, 1938, after purchasing an automobile, asked his friend, Wormser, who had written life insurance for him, to secure two policies of insurance, one covering fire and theft and one covering property damage and public liability.  Wormser immediately called the "Insurance Service Corporation" and placed with it an application for two[***19] policies.  This Insurance Service Corporation was the agent in Baltimore for a number of insurance companies, one of which was the appellant.  The Insurance Service Corporation, through its secretary, on June 15, 1938, informed Wormser that the application for the property damage and public liability policies would be submitted to the appellant, the American Casualty Company, for its approval.  The secretary also informed him that the acceptance of the policy would depend upon an investigation which would have to be made, and the policy would not be issued without the approval of the company. Wormser [*79] admitted he had been told that the acceptance of the application depended upon an investigation but he did not so inform Ricas that his application had not at that time been accepted and left Ricas under the impression that the policy had been issued and he was insured. On June 15, 1938, the secretary of the Insurance Service Corporation submitted Ricas' application to the appellant.  On June 17th the appellant acknowledged receipt of the application and advised that just as soon as the investigation had been completed the Insurance Service Corporation would be advised as[***20] to whether the application would be accepted.  On the same day, June 17th, the appellee had an accident in which the automobile sought to be covered by the liability insurance was involved.  The appellant had no notice of that accident and issued the policy on June 23, 1938.  Wormser admitted that he was an independent solicitor and placed his business through agents of various companies.  He had no contract of employment with the appellant or with any other company.  When he turned in an application for insurance to an agent he never knew with which company his application would be placed.  He also testified he "never had anything but a solicitor's license".  This Court in finding that the proof in the case failed to show that the appellee dealt with Wormser in reliance upon any apparent authority as the agent of the appellant, said, 179 Md. at page 631, 22 A. 2d at page 487: "Courts everywhere have carefully considered various transactions between insurance companies and the public, and have fixed by settled rules of law, the respective rights, powers, authority and liabilities of all who in any way are connected with the business, whether principal, agent, broker or solicitor.  The[***21] first uniform rule is that whether an agency in fact has been created, is to be determined by the relations of the parties as they exist under their agreements, or acts.  The question ultimately is one of intention.  2 Am. Jur. § 24, p. 26, Restatement (Agency) § 8.  Authorities everywhere agree that an insurance agent, so far as the insurer is concerned, is a person expressly [*80] or impliedly authorized to represent it in dealing with third parties in matters relating to insurance, and an insurance solicitor, or broker, is one who acts as a middle man between the assured and the insurer, and who solicits insurance from the public under no employment from any special company, but having secured an order, either places the insurance with a company selected by the assured, or in the absence of any selection by him, then with a company selected by the broker. Ordinarily, the relation between the insured and the broker is that between principal and agent.  An insurance broker is ordinarily employed by a person seeking insurance, and when so employed, is to be distinguished from the ordinary insurance agent, who is employed by insurance companies to solicit and [***22]write insurance by, and in the company." (Italics supplied here.)

   The appellee here contends that in the instant case Webster was such an insurance broker or insurance solicitor.  However, here, under the contract between Webster and the appellee, Webster was definitely named as the agent and was appointed as its "agent to represent it in the prosecution [**612] and conduct of its insurance business" in a named territory. This is very comparable to the italicized part of American Casualty Co. v. Ricas, supra. Here Webster was employed by the appellee and a definite rate of pay is specified in his contract of employment with the appellee as a special company.  Here, plainly, Webster was not employed by Hankins but by the appellee and was not the agent of Hankins but was the agent of the appellee.

   In the case of Eureka-Maryland Assurance Corp. v. Samuel et al., 191 Md. 603, 62 A. 2d 622, this Court citing with approval the case of Travelers' Ins. Co. v. Melman, 147 Md. 459, 128 A. 125, again reiterated principles laid down therein. That latter case involved a life insurance policy and the question whether or not a statement made by the agent for the company[***23] to the applicant for insurance, that he need not hurry about paying the premium, that the agent would pay it and the applicant was protected, [*81] constituted tender to the company of the first premium and whether or not the policy was in effect. The Court there held that tender to the agent under the circumstances in that case constituted payment of the premium. The following quotation is from that case, 147 Md. at pages 468 and 469, 128 A. at page 128: "It is to be remembered that insurance companies must of necessity deal with the public in the transaction of the business in which they are engaged entirely through agents, and perhaps in a majority of cases through subordinate agents, certainly seldom with the principal officers of the company, and slightly less seldom with general managers or general agents.  The subordinate agents thus dealing with the public are selected by the insurance companies, and by their actions must be held to bind their principals, not only within the scope of their real and actual authority, but also within the scope of their apparent authority.  The enormous volume and variety of business engaged in by insurance companies at the present time, [***24] of necessity, requires them through their agents to deal with people of every condition and walk of life, many of them uneducated and illiterate, and, when an insurance agent solicits a contract of insurance from a prospective purchaser, he frequently has to explain, during the course of his negotiations, what insurance is, what the purpose of the contract is, what protection it affords to the insured and his family in case of death, the amount of and when the premiums are to be paid, and to impart much other information concerning the contract, in order that the prospective purchaser may understand and appreciate the benefits to be derived from a policy of insurance. The insured rarely comes in contact with any officer or high official of the company, and can only know what the company proposes, and what he himself is to do, by reason of what he is told by the agent.  It is therefore necessary, in order to insure fair, equitable, and just dealings between insurance companies and their policy holders, that the law of principal and agent be liberally interpreted by the courts in favor [*82] of the insured, and that the agent be held to have had all of the authority which it [***25]  was apparent to the insured he possessed.  * * * 'The insured deals with no one but the agent. The company cannot deal with its patrons in any other way.  Justice and law therefore require that the company shall be held to sanction what the agent agrees to and upon which the insured relies.  To allow the company to enforce a condition or forfeiture of the policy for a neglect to do that which the agent informs the insured shall not avoid the policy, would work the greatest injustice.'" (Italics supplied here.) See also Goebel v. German American Ins. Co., 127 Md. 419, 427, 96 A. 627. We must note that in this case, Webster, the agent, told the Hankins boy, as hereinbefore set forth, when the accident was reported to him, that he would take care of it from there on.  This is directly in line with the sentence last quoted.

   In American Casualty Co. v. Purcella et al., 163 Md. 434, 163 A. 870; 123 A. L. R. page 952 supra, one Mike Martirano was issued a liability insurance policy with the American Casualty Company.  The policy provided: "XI. Reporting accidents and claims.  The assured, upon the occurrence of any accident covered hereby, shall give immediate notice thereof, [***26] together with the fullest information respecting it then obtainable. He shall give like notice, with full particulars, of any claim growing out [**613] of such accident, and the assured shall forward to the company every summons or other process as soon as it shall have been served upon him." The policy of insurance was sold and issued to Martirano by Metzger and Holben, insurance agents, by whom the policy was "countersigned at Frostburg, Md., on the 25th day of February, 1929", to be effective to February 25, 1930.  On November 10, 1929, Martirano had an accident with his automobile injuring his two guests therein.  He went to Frostburg two days later and notified C. A. Holben of the firm of Metzger and Holben of the accident.  "The appellant denied that any such notice was given or, conceding that it was, it did not, according to the testimony of Martirano, [*83] impart 'the fullest information respecting the accident then obtainable.'" The insurance company contended that the first notice of any kind received by that company or its agent was when Martirano, on December 13, 1929, went to the office of Metzger and Holben at Frostburg and delivered to Mr. Holben a letter[***27] of the attorney for the injured parties dated December 11, 1929, and copies of the summons and declarations in the suits against Martirano.  These papers were forwarded by Metzger and Holben to the office of the appellant at Reading, Pennsylvania.  On December 28th the insurance company denied liability under the policy because of the insured's failure to comply with the requirements of Section XI, supra.  As the question came up on a demurrer prayer the Court assumed that two or three days after the accident Martirano did see Mr. Holben, the insured's agent in Frostburg, Maryland, and that he did say what he testified to having said.  In that case in holding that notice to the representative of the insurance carrier two days after the accident was notice to the insurance carrier itself, this Court said: "In construing contracts of insurance, and particularly those conditions which must be observed by the respective parties to the contract, the courts make no distinction between fire, life, accident, and liability policies.  In all of them the courts require evidence of substantial compliance on the part of the insured, or the one seeking indemnity, if the insured has failed to[***28] do what the policy provides.  * * * Assuming that Martirano did omit some of the details of the accident, can the appellant complain?  He testified that he personally told the agent from whom he bought the policy that he had had an accident and that Joe Purcella and Frank Sicola had been injured.  The two days' delay, under the circumstances, is not unreasonable.  * * * The purpose of the preliminary notice and the requirement of promptness are to enable the insurer to make an investigation when the facts are obtainable. It is not pretended that the insurer will determine its course solely on the statement of the insured. Assuming that Martirano [*84] told the insurer's agent what has been testified to, and we must assume what the demurrer prayers admit, can the appellant now question the omission of any details, or has it waived any of the deficiencies of the alleged preliminary notice? * * * In the instant case, the insured having personally advised the insurer's agent of the accident (there being no instructions in the policy as to the person to whom or the manner in which the notice should be given, with such facts as appear to have been testified to by him, if the agent[***29] did not request or demand more information than the insured then gave, if any information then obtainable was omitted, it was waived."

   It is true that in the instant case Webster did not countersign the policy here in question.  There was no question in American Casualty Co. v. Purcella et al., supra, as to whether Mr. Holben altered, modified, waived or changed any of the terms or agreements in the policy issued to Martirano.  In the instant case Webster was not a mere rubber stamp for the insurance company.  Apparently from the testimony of the manager of the Baltimore branch office of the appellee, he was solicited by the appellee and employed as a licensed agent "to represent it in the prosecution and conduct of its business" in a specified territory after passing an examination given by the insurance commissioner.

   Of course, when the terms of a contract are clear and unambiguous courts have no right to make new contracts for the parties or ignore those contracts already made simply to avoid seeming hardships.  [**614] Insurance contracts are construed with a view of arriving at the intention of the parties as gathered from all the instruments.  When the language used[***30] in said contracts is free and clear from such ambiguities it is, of course, to be given its usual and ordinary significance, thereby carrying out the intent of the parties as thus expressed.  American Automobile Ins. Co. v. Fidelity & Casualty Co., 159 Md. 631, 636, 152 A. 523; Joffe v. Niagara Fire Ins. Co., 116 Md. 155, 160, 81 A. 281, 51 L. R. A., N. S., 1047, [*85] Ann. Cas. 1913C, 1217; Miller v. Home Ins. Co., 127 Md. 140, 146, 96 A. 267 Ann. Cas. 1918E, 384; Frontier Mortgage Corp. v. Heft, 146 Md. 1, 12, 125 A. 772.

   The language "any of its authorized agents" used in the liability insurance policy now before this Court is not free from ambiguity. In interpreting this language and in giving it its usual and ordinary significance, we must construe any doubts arising from the ambiguity of this language against the insurance company and in favor of the insured. Restatement of Law, Contracts, Section 236, page 330 supra.  And we must bear in mind the rule that "It is therefore necessary, in order to insure fair, equitable, and just dealings between insurance companies and their policy holders, that the law of principal and agent be liberally interpreted[***31] by the courts in favor of the insured, and that the agent be held to have had all of the authority which it was apparent to the insured he possessed." Travelers' Ins. Co. v. Melman, 147 Md. 459, 468 and 469, 128 A. 125, 129, supra.  Here, Webster told the son of the insured that he would take care of the case from there on.  It was therefore apparent that Webster had this authority.

   Construing the policy here in question and the contract between Webster and the insurance company in the light of those rules of construction, we are of opinion under the authorities hereinbefore recited that Harry O. Webster was an "authorized agent" of the appellee at the time he received the notice of the accident and that notice to him was notice to "an authorized agent".  If the insurance company did not intend him to be so understood, it would have been very simple to have made such a provision in the policy and to have definitely designated the person to whom the notice of the accident should be sent and not leave that language in doubt.

   As to the non-waiver agreement executed by the Hankins at appellee's office on April 28, 1947, which provided that the appellee might defend the suit without[***32] waiving any "provision, term, condition or limitation in the policy contained", but without requiring the appellee [*86] to defend, this non-waiver agreement appears to have been without consideration on the part of the appellee.  This was merely a promise on appellee's part, promising to do what it was already legally bound to do, in view of our decision in this case. Royal Ins. Co. v. Drury, 150 Md. 211, 232, 132 A. 635, 45 A. L. R. 582.

   In this case, as hereinbefore set forth, Webster received notice of the accident on August 26, 1946.  Assuming that Webster was not the agent of the company for the purposes of receiving notice, (we having decided otherwise in this case), the notice was received at the Baltimore office on October 10, 1946. The appellee did not file the suit for an interpretation of the policy until December 3, 1947, over a year after its admitted notice. In the meantime, although not admitting liability under the policy and attempting to reserve all its rights thereto, it assumed control of the suits against the insured and had its attorney file pleas in the damage suits.

   In the case of Columbia Casualty Co. v. Ingram, 154 Md. 360, 140 A. 601, the [***33]insurance policy provided that in case of an accident the assured should give prompt written notice with the fullest information obtainable at the time to one of the insurer's authorized agents.  After the accident had been reported the insurer wrote a letter to the assured stating that the report of the accident and the transmission of the suit papers had been unduly delayed and they were accepting "under a full reservation" of the insurer's rights under the insurance contract.  The letter concluded "we will proceed with an investigation of the facts in the case, but without waiving any of the said rights".  The insurer claimed that it did not receive notice until ten days after [**615] the accident.  Exclusive control of the case was retained by the insurer for a period of fifty-one days.  It then wrote the insured a letter denying liability under the policy "by reason of the prejudice to our interests, through the delayed notice to us of the accident and the lack of co-operation on your part in connection with the matter".  The Court in that case held that the insurer [*87]was entitled to prompt notice of the accident and of the ensuing claim for damages, but that the[***34] assured had the right to be informed within a reasonable time as to whether the insurer intended to accept or disavow the duty of resisting or adjusting the claim.  The record in that case showed no reason why a sufficient investigation of the facts could not have been made before the entry of an appearance for the defendant and the filing of the pleas, in the suit against the assured, became necessary.  The Court further pointed out that if prejudice could result to the insurer from a delay of ten days in the receipt of the notice of the accident it was readily conceivable that the interest of the assured might be prejudiced by the insurer's delay for more than a month and a half in determining its attitude in regard to the question of its liability.  The Court there affirmed the granting of the plaintiff's prayer submitting an instruction permitting the jury to infer a waiver of the notice on the part of the insurance company if they found certain facts.

   Although it is not necessary that we pass upon whether the insurance company waived the alleged neglect of the insured to report the accident promptly, yet under the authority of the case of Columbia Casualty Co. v. Ingram, supra [***35], the trial judge might well have decided that the long delay of the insurance company in determining its liability under the policy and in denying such liability amounted to a waiver of the provision in the policy requiring prompt notice.

   In view of our finding in this case it is not necessary that we pass upon the other contentions of the appellants that other conduct of the insurance company was sufficient to constitute a waiver or to estop it from insisting on the notice provision.

   The judgment will be reversed and the case will be remanded for the entry of a judgment declaring that the appellee is liable under the policy herein to the defendant, James Edward Hankins, and to all other persons covered [*88] by the said policy by reason of the accident mentioned herein as occurring on August 26, 1946.

   Judgment reversed, with costs, and case remanded for the entry of a judgment as herein set forth. 

GOETZ et al. v. SMITH et ux.; SAUNDERS et ux v. PHILLIPS etal. 
Nos. 46, 47, October Term, 1948
 
Court of Appeals of Maryland
 
191 Md. 707; 62 A.2d 602; 1948 Md. LEXIS 413

 December  10, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeals from the Circuit Court for  Anne Arundel  County; McWilliams, J.

DISPOSITION: Decree in No. 46 affirmed with costs.  Decree in No. 47 reversed and bill dismissed with costs to appellants.

CORE TERMS:  deed, restrictive covenant, negro, decree, tract, Fourteenth Amendment, negroes, acre, judicial enforcement, restrictive covenants, restrictive, color, chancellor, effective, estopped, occupied, equal protection clause, real property, construing, covenant, inhibits, defendant-appellants, plaintiff-appellees, definitely, occupation, occupying, conveyed, inserted, reserved, binding

COUNSEL: Wilson K. Barnes and Emanuel Klawans for appellants in No. 46 and for appellees in No. 47.

   The Court declined to hear argument for the appellees in No. 46 and for appellants in No. 47.  Donald G. Murray and Charles H. Houston on the brief for them.

JUDGES: Marbury, C. J., Delaplaine, Collins, Henderson, and Markell, JJ. Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*708] [**602] These two[***3] cases, Nos. 46 and 47, October Term 1948, argued together in this Court, involve the attempted enforcement of a restrictive covenant against the sale, lease, transfer or permitted occupation of the respective properties mentioned to or by "any negro, Chinaman, Japanese, or person of negro, Chinese or Japanese descent".  The properties are parts of a tract called Beachwood Forest, platted and subdivided in 1922 by R. L. Jones, the owner at that time, and are located on the Magothy River in Anne Arundel County.  Jones started to convey lots in this subdivision, the deeds containing restrictive covenant above set out, with the additional statement that such covenant should be inserted in all deeds for any land described in the plat.  One of the first deeds, however, was to Edward D. Booz of 64.8 acres, which comprised the northern two-thirds of the entire tract. This deed describes the property by metes and bounds, but refers to the plat, and contains 93 out of the 160 lots in the subdivision.  There is no restrictive covenant [*709] in this deed. All of the other deeds made by Jones of lots in the subdivision, except that of one lot to G. Murray Seal, contain the restriction, [***4] and Seal subsequently conveyed this lot, with others acquired by him, by a deed containing the restriction.  Jones conveyed his remaining lots on April 16, 1925 to a certain Requard, subject to the restriction and two of the plaintiff-appellees in No. 47, the Amers, purchased their lots from Requard, the restrictive covenant appearing in their deed. The other plaintiff-appellees in No. 47, the Phillips, acquired their lots, with the restriction through mesne conveyances from Requard.  The Saunders and the Smiths, defendant-appellants in No. 47 are negroes and purchased their lots in 1946.  The deed to the Smiths of one of their four lots omits the restriction, but the deed to the other three contains it.  The Saunders deed is without the restriction.  All of the lots with which No. 47 is concerned are in the tract which remained after the 64.8 acres were sold to Booz, and none of them comes out of that acreage.

   In No. 46, the plaintiff-appellants own lots, subject to the restrictive covenant inserted in their deeds, which also are part of the tract reserved by Jones, but the Smiths, defendant-appellees in this case, purchased the 64.8 acres intact from the Trustees under [**603] [***5] the will of Edward Booz in August, 1943 and have since expended about $70,000 upon it, and use it as a picnic ground and park for negroes. These are the same Smiths who are defendant-appellants in No. 47 with respect to other lots.  The case in No. 46 has to do only with their 64.8 acres, and their deed to this property does not contain the restrictive covenant.

   The plaintiffs in No. 46 were unsuccessful in their effort to enforce the restrictive covenant against the Smiths' 64.8 acre tract, the chancellor holding that the restriction did not apply to this tract. The plaintiffs in No. 47 succeeded in getting a decree restraining the defendants from using and occupying their lots which came out of the tract reserved by Jones from the sale to Booz, [*710] the chancellor holding that the restriction applied to these lots.  The losers below, in each case, appealed.

   It was contended below by the appellant-defendants in No. 47 that the enforcement of the restriction constituted a violation of the Fourteenth Amendment to the Constitution of the United States.  The Chancellor found that the decisions of the Supreme Court and of this Court were to the contrary, citing Corrigan v. [***6]  Buckley, 271 U.S. 323, 46 S. Ct. 521, 70 L. Ed. 969; Meade v. Dennistone, 173 Md. 295, 196 A. 330, 114 A. L. R. 1227, and Scholtes v. McColgan, 184 Md. 480, 41 A. 2d 479. His opinion was filed on February 27, 1948 and the decree appealed from on February 28, 1948.  It was not until May 3, 1948 that the Supreme Court of the United States decided the cases of Shelley v. Kraemer and McGhee v. Sipes, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161. This decision, in our opinion, is controlling in the cases before us.

   It is earnestly contended by the appellants in No. 46 and the appellees in No. 47 that the Shelley-Kraemer case, arising in St. Louis, and the McGhee-Sipes case, arising in Detroit, differ in many respects from the cases at bar.  In the St. Louis case it is stated that the trial court found that the agreement did not become effective because not signed by all the property owners, that the restraint on alienation for 50 years might well be found to be unreasonable, that negroes had occupied some of the property for periods ranging from 23 to 63 years, that the negro purchasers had no actual knowledge of the restrictions at the time of making their purchase, [***7] and that there was no uniformity when the original agreement was signed, as a number of the properties were then occupied by negroes. In the Detroit case, it is noted that the restriction was not to be effective unless 80% of the property was subject to it, and that apparently 20% of the property was unrestricted.  It is pointed out that the defendants before us knew of the restrictions and should be estopped from contesting them.  These facts do, in some respects, differentiate these cases, but the Supreme Court did not base its decision on the ground [*711] that the restrictions were invalid because of the particular facts shown.  It held that [334 U.S. 1, 68 S. Ct. 845] "in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand." The decision rests upon the protection afforded by the Fourteenth Amendment to all persons within the jurisdiction of the States, and it determines that the equal protection clause of the Amendment inhibits judicial enforcement by state courts of restrictive covenants based on race or color. The [***8] defendants here, by their action in doing what the Supreme Court has said they have a right to do, cannot be estopped from making the defense the Court has said is valid.

   The further argument is made to us that since the Supreme Court held that "the restrictive agreements, standing alone, cannot be regarded as a violation of any rights guaranteed * * * by the Fourteenth Amendment" no court should hold that such a restrictive agreement may not be enforced in the courts, when there has been a breach.  This argument comes too late.  That is precisely what the Supreme Court decided.  The decisions of the Supreme Court of the United States, construing the United States Constitution and its Amendments are binding on this Court, and, once definitely made, as in this case, must be followed by us.  We are not at liberty to decide to the contrary, or to attempt to whittle away the effect of such decisions by holding that some of the [**604] statements made are dicta.  If the Supreme Court did not mean what it said, or said more than it should, or what it should not have said, the responsibility is its and not ours. 

   The decree in No. 46, Goetz, et al. v. Smith will be affirmed, [***9] and the decree in No. 47, Saunders, et al. v. Phillips, et al., will be reversed and the bill of complaint dismissed.

   Decree in No. 46 affirmed with costs.  Decree in No. 47 reversed and bill dismissed with costs to appellants. 

QUEEN et al. v. ANDERSON et al. 
No. 22, October Term, 1948
 
Court of Appeals of Maryland
 
191 Md. 522; 62 A.2d 612; 1948 Md. LEXIS 394

 December  8, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; McWilliams, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  tax sale, ratification, laches, ratified, purchaser, sister, bought, Code of Public Local Laws, invalid, conclusive, deed, declare, vested, decree, statute of limitations, conclusive evidence, tax deed, bill to quiet title, time to time, facts stated, understandable, invalidity, realized, regularity, fatal, quiet title, action of ejectment, question presented, owners of property, title to property

COUNSEL: B. Conway Taylor, Jr., with whom were W. Hamilton Whiteford and Due, Nickerson & Whiteford on the brief, for the appellants.

   Marvin I. Anderson, with whom was C. Osborne Duvall on the brief, for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Henderson, and Markell, JJ. Markell, J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*524] [**612] This is an appeal from a decree "setting aside" certain "tax sale proceedings" and [**613] a deed from the County Commissioners to defendant Richard Queen, and declaring the deed "null and void", but decreeing to be "due and owing", to Richard from his seven brothers and sisters, all plaintiffs except one sister, a defendant, and "to be a lien" on their respective interest in the property in [*525] question, certain sums aggregating $783.42 less credits to three of the brothers, and decreeing payment of the sum due or, in default, sale of the property.  Both defendants have appealed.  The defendant sister apparently claims no interest in the property and therefore[***5] seems to have no interest in the appeal except perhaps because of the pecuniary decree against her and the plaintiff brothers and sisters.
 
   In their brief defendants, "for purposes of this appeal, * * * adopt the statement of facts" in the opinion of the lower court.  At the argument they suggested a distinction in this respect between facts and implications in the opinion.  We find no basis for such a distinction.  The facts stated in the opinion are found from the evidence with the opportunity to see and hear the witnesses.  As defendants, in the appendix to their brief, set out no evidence at all, and the testimony set out in plaintiffs' brief is not more favorable to defendants' contentions than the opinion, we must necessarily confine ourselves to the facts stated in the opinion.  Grimm v. Virts, 189 Md. 297, 55 A. 2d 716.

   Judge McWilliams in his opinion states the facts thus:

   "On 22 November, 1905, Louis Queen acquired a tract of land in Anne Arundel County containing approximately 48 acres.  In 1907 he died, intestate.  He was survived by his widow, now Anna Anderson, and the other parties to this cause, who are his children.  The widow and the children, with some exceptions, [***6]have occupied the land ever since.  It appears that taxes were paid infrequently and the property was sold several times for the non-payment of taxes, but was always redeemed by one or more of the children before the period of redemption expired.

   "No taxes were paid for the years 1931, 1932, 1933 and 1934.  On October 16, 1935, C. Albert Hodges, late County Treasurer, advertised and sold the property for the delinquent taxes above mentioned.  There being no bidders, the County Commissioners of Anne Arundel County purchased the property for the sum of $193.64, that being the amount of taxes in arrears plus the cost of making [*526]the sale.  The Treasurer did not report the sale to the Circuit Court until 22 November, 1937.  The final order of ratification was passed by the Court on 27 January, 1938.

   "It is difficult to obtain an accurate picture of what actually happened before and after the tax sale because of the fact that the testimony produced at the hearing is in many instances contradictory, ambiguous and generally unsatisfactory.  After reviewing it a number of times, I am of the opinion that the story is about as follows:

   "With one or two possible exceptions, all[***7] of the parties to this cause are uneducated colored people who know nothing of business and, except for Richard, have spent their entire lives in the country.  Since each of them owned only a fractional interest in the property, it is understandable that the responsibility for paying taxes did not weigh too heavily on any of them.  As a matter of fact, it is doubtful if any of them had any full realization of the importance of paying taxes.  Their joint laxity in this regard may be partially excused by a recognition of the then existing policy of the Treasurer, who was himself shockingly lax in the collection of taxes.  That it was necessary to have a special Act of Legislature passed to provide for the collection of taxes four years in arrears seems sufficient evidence of this fact.

   "The defendant, Richard Queen, left the home some years ago and became a railroad porter, making his residence in New York.  All the others lived on the property, leading a rather simple communal life.  Apparently no attempt was made to allot portions of the property for the use of any particular one.  Each one seemed to be satisfied with making whatever use of the property happened to suit him, and since[***8] their various uses of the property seemed never to be in conflict, they experienced no difficulties.  Richard visited the home from time to time, and claims that, on several [**614] occasions, he furnished the funds needed to redeem the property from prior tax sales.

   [*527] "After the sale of the property in October, 1935, to the County Commissioners, some small payments were made to the County Treasurer by one of the parties.  There is some evidence tending to show that Richard made these payments, but in his testimony he denied having made them, so it is reasonable to conclude that they were made by one of the others.  At least one of the parties, Joseph Queen, was concerned about the fact that the property had been sold to the County for taxes because he was told by the Property Clerk that if the entire arrears were not paid up they would lose not only the property but the money that had been paid as well.  At or about this time, -- just when it is difficult to determine from the testimony, -- Richard came down from New York and interested himself in the matter of the tax arrears.  There is some evidence tending to prove that the others paid him some money to apply on[***9] the back taxes but just exactly what the circumstances surrounding these payments were it is impossible to determine.

   "Some time during the fall of 1937, Richard entered into negotiations with the County Treasurer's office for the purchase of the property.  That he intended to purchase the property, rather than redeem it, seems quite clear, and it is equally clear that he did not make known his intention to purchase it to the other co-owners.  He borrowed the money from an aunt in New York, and on January 20, 1938, paid the County Treasurer $235.68, representing the balance due on the property and probably including taxes for the years 1936, 1937 and 1938.

   "At this point it should be noted that the purchase price required by the Treasurer was paid seven days before the final ratification of the tax sale. The deed from the County Treasurer to Richard Queen was executed and recorded February 1, 1938, five days after the ratification of the tax sale.

   "Shortly after the transaction was concluded, Richard informed all but one or two of the other parties that he had bought the property and that from then on his mother was to be the boss.  In his testimony he said that he was [*528] [***10] going to be the 'controller'.  There was little, if any, change in the subsequent use of the property.  From time to time Richard spent some money making repairs and improvements, and for the years 1939 to 1945, inclusive, he paid all the taxes.  Joseph made some repairs and improvements on a house occupied by him, and Herbert and Harry built a tobacco barn on the property, but they kept all the money that was realized from the sale of the tobacco.  What other expenditures the brothers made on the property after 1937 appear to have been made for their own comfort and convenience, rather than for the benefit of all.  From time to time Richard tried, with indifferent success, to collect money from the others.  It is not clear whether they considered this to be their share of the taxes or rent.

   "The incident which resulted in the institution of this litigation occurred in 1945.  It was the renting by Herbert of his house to some other person.  When Richard found out about this, he demanded that the rent be paid to him as he was the owner of the propery.  The brothers thereupon consulted counsel, and this suit was filed in the early part of 1946.
 
   "Considering all the circumstances, I[***11] find it difficult to conclude that the plaintiffs fully realized Richard's claim of absolute ownership until they consulted counsel.  I doubt very much if Richard ever made it plain to them that it was his intention to become the absolute owner and that from 1938 on they were merely tenants by sufferance.  Of course, it is true that he told them he had bought the property, but I am inclined to believe that they all thought he had bought it for the family, and that since it had not fallen into the hands of outsiders everything would continue as before.  I must admit, however, that it would be difficult to sustain this belief if the parties were literate, intelligent people, with a substantial knowledge of day to day business details.

   "The relief prayed for in the amended bill of complaint is that the deed from C. Albert Hodges, late County Treasurer, and the County Commissioners of Anne Arundel [*529] [**615] County to Richard Queen be set aside, and that the plaintiffs may be declared to hold the property unaffected thereby, or, in the alternative, that Richard Queen may be declared to hold the property in trust for the heirs of Louis Queen and that a Trustee may be appointed [***12]to convey the legal title to Louis Queen's heirs.  The amended bill also asks for the usual general relief.

   "Elizabeth Boston is named as a party defendant, but it seems quite clear that this is only for the purpose of bringing her interest in the property before the Court, because, for some reason or other, she declined to become a plaintiff.  She has not answered but, under the view I take of the case, this makes no difference.  The defendant, Richard Queen, answered in detail, contending in substance that the suit of the plaintiffs is barred by laches and limitations."

   Judge McWilliams then states the question presented:

   "The tax sale held in October, 1935, has already been considered by the Court of Appeals in Free v. Greene, 175 Md. 36, 199 A. 857, 117 A. L. R. 717. In that case the report of sale was not filed in this Court until February 4, 1937.  It was held that the delay was about five months too long and for that reason the Court reversed the decree of the Chancellor, thereby making the sale void.  In the instant case, the report of sale was not filed until November 22, 1937, almost ten months later than the filing of the report in Free v. Greene, supra. It hardly[***13] seems necessary to say that if the delay in Free v. Greene, supra, was fatal, then the delay in this case must be all the more fatal.

   "There is no doubt whatever that if the plaintiffs had brought suit to set aside this tax sale in 1939 or 1940, the Court, following the case of Free v. Greene, supra, would have been obliged to declare it null and void.  The question presented here is, has anything occurred between 1938 and the date of the filing of this bill which operates to validate an admittedly invalid tax sale. The defendant contends that his title is now not subject to attack because of laches on the part of the plaintiffs and the running [*530] of the period of limitations prescribed by Chapter 208 of the Acts of 1941.

   "Chapter 208 of the Acts of 1941 added a new section to the tax sale laws of Anne Arundel County.  It provides in part as follows:

    '496C. (a) When a sale of property for taxes has been ratified by order of court, no suit or action may be brought to contest the title of the purchaser of such property on the ground of any invalidity or irregularity in the proceedings in connection with such sale --

   '(1) After three years from June 1, 1941, if the[***14] sale was ratified before that date, except as provided in (3); * * *

   'After the expiration of such periods the order of court ratifying the sale shall be conclusive as to the legality of all proceedings in connection with the sale of the property.'

   "If the above statute is valid and within the constitutional power of the Legislature to enact, then the plaintiffs are effectively barred from maintaining this suit.  However, there is grave doubt as to the validity of these statutes."

   On the question of laches he says: "Referring to the defense of laches, it is true that there has been a long delay but as I have said before, the delay is understandable, and it appears that the plaintiffs acted promptly when they came to a full realization of the nature of the defendant's claim of title. Furthermore, it requires nothing more than the payment of money to put the defendant in status quo ante." In this view we concur.  It may be added that the bill alleges and the court in effect finds that plaintiffs are and always have been in possession of the property; Richard's alleged title under the Act of 1941 did not exist until June 1, 1944.  The bill is in the nature of a bill to quiet title, [***15] not an action of ejectment.

   Judge McWilliams holds that section 496C (a) (1) of the Act of 1941 "does not operate to bar the plaintiffs from maintaining this suit".  We concur in this conclusion.  We may assume, without deciding, that: a [*531] statute of limitations might reduce, in all cases or in cases against purchasers [**616]at tax sales, the necessary period of adverse possession from twenty years to three and the Act of 1941, if so limited or construed and applied, would be valid.  Cf. Kelch v. Keehn, 183 Md. 140, 36 A. 2d 544. But, as has been said, plaintiffs are in possession and cannot be barred by a statute of limitations. Even if the Act of 1941 could bar a bill to quiet title, it would not purport to destroy a defense of title and possession in an action of ejectment or other proceedings at law or in equity.

   As this court has often said, report and ratification of a tax sale was not required until 1867, and after 1872 (until 1943) ratification merely shifted the burden of proof of invalidity of the sale and was prima facie, not conclusive, evidence of a good title.  Gill v. Sommer, 191 Md. 204, 209-210, 60 A. 2d 683, 685. In the case of Free [***16]  v. Greene, supra, it was held that under the Anne Arundel County statute, Code of Public Local Laws (1930), as amended by Act of 1931, ch. 280 (not necessarily under other statutes) a tax sale is invalid unless reported and ratified within eleven months.  In Baumgardner v. Fowler, 82 Md. 631, 34 A. 537, it was held that a Garrett County statutory provision that ratification of a tax sale would be conclusive as to the regularity of the Treasurer's proceedings and of the sale, except in case of fraud, was invalid. Quoting Marx v. Hanthorn, 148 U.S. 172, 13 S. Ct. 508, 37 L. Ed. 410, this court said: "It is competent for the legislature to declare that a tax deed shall be prima facie evidence, not only of the regularity of the sale, but of all prior proceedings and of title in the purchaser, but the legislature cannot deprive one of his property by making his adversary's claim to it, whatever that claim may be, conclusive of its own validity, and it cannot, therefore, make the tax deed conclusive evidence of the holder's title to the land." 82 Md. at page 639, 34 A. at page 538. Ratification of a tax sale usually is practically an ex parte proceeding.  The present general[***17] act of 1943, Code Supp. 1947, art. 81, §§ 71A-90W, and the [*532] previous Baltimore City act of 1941, Laws 1941, c. 540, provide a normal procedure for conclusively divesting title in the owner and vesting it in the purchaser at a tax sale, viz., a full-fledged judicial foreclosure proceeding.  Gathwright v. Baltimore, 181 Md. 362, 370, 30 A. 2d 252, 145 A. L. R. 590; Shapiro v. National Color Printing Co., 191 Md. 194, 60 A. 2d 679. A statute cannot effectually declare that title to property now vested in A shall be vested in B.  Davidson v. New Orleans, 96 U.S. 97, 102, 24 L. Ed. 616. Ratification of the tax sale in the instant case, which shows on its face that it occurred two years after the sale, cannot be conclusive evidence that the sale was ratified within eleven months.

   What rights, if any, some of the plaintiffs may have against their brothers and sisters in respect of improvements made by them is a question which is not raised in the instant case and on which no opinion is intimated.  In view of the fact that one sister declined to become a plaintiff and Judge McWilliams apparently did not find all the plaintiffs equally lacking in intelligence, education[***18] and experience, we have not considered the alternative ground of relief prayed, viz., that by reason of the tenancy in common and of actual fiduciary family relations Richard should, in equity, be regarded as a trustee buying for the benefit of all the co-tenants and the latter are not by laches barred from such relief.

   Decree affirmed, with costs. 

WATERS v. WATERS 
No. 13, October Term, 1948
 
Court of Appeals of Maryland
 
191 Md. 436; 62 A.2d 250; 1948 Md. LEXIS 381
 
 November  11, 1948, Decided

   SUBSEQUENT HISTORY: [***1]

   Motion for Clarification denied January 12, 1949.

PRIOR HISTORY: Appeals from the Circuit Court for  Anne Arundel  County (McWILLIAMS, J.).

DISPOSITION: Decree affirmed in part, and reversed in part, and case remanded for the passage of a decree in accordance with this opinion.  Costs to be paid by the appellant, Warner W. Waters.

CORE TERMS:  alimony, decree, chancellor, divorce, matrimonii, vinculo, permanent alimony, awarding, admits, annual income, pendente lite, net income, depositions, designated, adultery, monthly, racket, salary, rent

COUNSEL: Marvin I. Anderson and C. Osborne Duvall for the appellant.

   Hall Hammond, with whom was O. Bowie Duckett on the brief, for the appellee.

JUDGES: The cause was argued before MARBURY, C. J., DELAPLAINE, COLLINS, HENDERSON, and MARKELL, JJ.

OPINIONBY: COLLINS

OPINION: [*438] [**251] COLLINS, J., delivered the opinion of the Court. 

   On March 11, 1947, Dora Baldwin Waters, appellee and cross-appellant, hereinafter designated as the appellee, filed a bill for a divorce[***2] a vinculo matrimonii on the grounds of adultery against her husband, Warner W. Waters, appellant and cross-appellee, hereinafter designated as appellant.She prayed a divorce a vinculo matrimonii, permanent alimony, costs of suit, counsel fees, and other and further relief.  To that bill the appellant filed an answer denying the material allegations of the bill.

   After testimony before the examiner and filing of depositions, a decree was signed by the chancellor granting the appellee a divorce a vinculo matrimonii, monthly alimony in the amount of $75, and counsel fee of $150 to appellee's solicitor, and costs of suit.  From that decree both parties to this suit appeal here.

   That part of the decree awarding a divorce a vinculo matrimonii is not contested by the appellant, Warner W. Waters.  He appeals from that part of the decree ordering him to pay permanent alimony and counsel fee.  He claims that the income of the wife is sufficient to care for her needs and she is amply able to pay counsel fees to her solicitors.  The wife, Dora B. Waters, appeals from the order granting permanent alimony and counsel fees and contends that the amounts awarded by the chancellor[***3] should be substantially increased. The only child of this marriage is a son now twenty-one years of age.

   Chapter 261 of the Acts of 1935, added a new section to the Code, 1939 Code, Article 16, Section 17.  This section provides: "In all cases where alimony or alimony pendente lite and counsel fees are claimed, the court shall not award such alimony or counsel fees unless it shall appear from the evidence that the wife's income is insufficient to care for her needs." The primary question for our decision, therefore, is whether, under the facts presented, the income of Dora B. Waters "is insufficient to care for her needs." [*439]

   The facts show that the wife is forty-nine years of age and her salary is $4,000 a year, she having been employed for twenty years by the United States Treasury Department.  She owns a combination store and dwelling in Laurel, Maryland, which she values at $15,000 and from which she receives rent of $1,860 a year, the expenses being $905, leaving her an annual net rental income of $955.  She owns building and loan stock of the value of $2,500 and Government bonds amounting to $1,500.  She also has a small [**252] checking account of $250. [***4] Therefore, according to the testimony, she has assets of approximately $20,000 and a net income of approximately $5,000 a year and lives in a home owned by her husband.  At the termination of this suit undoubtedly she will be required to remove from her husband's house and obtain another home.

   Although the assets and income of the wife are more or less admitted and not disputed, there is considerable dispute as to the husband's assets and income. In his answer, as above set forth, he denied that his annual income is approximately $4,000.  The chancellor found that the appellant's income was not more than from $4,000 to $5,000 a year.  The chancellor, in the opinion filed in this case, said: "However, it might well be that he earns a great deal more than that." At the time of the hearing the husband admitted that he had the following assets:

                            Husband's     Wife's
                            Valuation   Valuation
Five horses and a pony      $10,000.00   $20,000.00
A home                        5,000.00     9,000.00
One-half interest in a
 concrete block plant         1,000.00     2,000.00
A 2 1/2 acre lot adjoining
 residence                      500.00     2,000.00
Cash                         13,700.00    13,700.00
Government bonds              1,800.00     1,800.00
                            $32,000.00   $48,500.00

  [***5] [*440]

   From the evidence we can fairly assume that his capital assets are at least worth $40,000.

   He admits that his income from January 1, 1947, to September 2, 1947, was approximately $20,000 but claims that his expenses for the same period were approximately $17,000.  Included in this figure of $17,000, however, are the appellant's living expenses, not all of which were incurred because of his business.

   He admits that his race horses won as much as $30,000 during the year 1946 and the first six months of 1947.  He admits also that he receives $7 per day for training horses.  It is difficult to prove the actual income of this man, due to the nature of the business in which he is engaged, the race horse business.  We can fairly assume from the evidence before us that his net income at the time of the hearing was more than $5,000 annually.

   In the case of Hood v. Hood, 138 Md. 355, 113 A. 895, 15 A.L.R. 774, this Court found that the wife had an annual income of $88,000, the husband a salary and income of $36,000, and deeming the wife had ample means of her own for her support and maintenance and enough to enable her to prosecute and defend her suit affirmed a denial of[***6] alimony pendente lite to the wife.

   Article 16, Section 17, Acts of 1935, Chapter 261, supra, which denies alimony if the wife's income is sufficient to care for her needs was evidently passed by the Legislature to curb what is popularly known as the "alimony racket".  An award of alimony to the wife here could not be interpreted under the facts of this case as making her a participant in this well-known "alimony racket".  Nothing here decided is in any way intended to take the force out of that statute.

   Although, in this case, the husband has been found guilty of adultery, the awarding of alimony is never a punitive measure.  In determining an award of alimony and whether "the wife's income is insufficient to care for her needs", the court should consider the husband's wealth and earning capacity, the station in life of the parties, age, physical condition, the ability to work, the [*441]length of time the parties have lived together, the circumstances leading up to the divorce, and the fault which destroyed the home.  Timanus v. Timanus, 178 Md. 640, 642, 643, [**253] 16 A.2d 918; Dougherty v. Dougherty, 187 Md. 21, 48 A.2d 451, 457; Bradshaw v. Bradshaw,[***7] 189 Md. 322, 326, 55 A.2d 719, 721. Also, of course, to be taken into consideration are the assets and income of the wife.  Hood v. Hood, supra, 138 Md. page 360, 113 A. 895, 15 A.L.R. 774. In making such an award the court can only use judicial discretion. Of course, there is no special statute or rule governing this discretion.  It must be exercised to the necessary end of awarding justice and based upon reason and law.  Saltzgaver v. Saltzgaver, 182 Md. 624, 635, 35 A.2d 810; see also Law and Contemporary Problems, School of Law, Duke University, Vol. VI, Spring 1939, No. 2, "The Exercise of Judicial Discretion in the Award of Alimony", by Edward W. Covey.  No doubt in this case the wife will be required to remove from the home of her husband.  We are of opinion that this monthly award of alimony in the amount of $75 to the wife will probably pay for the rent of another home, and, therefore, it should be affirmed, subject to further order of the chancellor.
 
   As to the award of counsel fees, it is evident that considerable work was done by the solicitors for the wife.  It was necessary to trace the husband's assets in other states and to take depositions outside of Maryland. [***8] As pointed out in the case of France v. Safe Deposit & Trust Co., 176 Md. 306, at page 330, 4 A.2d 717, 728, counsel fees should be awarded according "to the ordinary factors of labor, skill, time, and benefit".  The amount of the fee also cannot be wholly disassociated from the financial resources of the party charged, here, the husband.  Silverberg v. Silverberg, 148 Md. 682, 693, 130 A. 325; Bonwit v. Bonwit, 169 Md. 189, 203, 181 A. 237; France v. Safe Deposit & Trust Company, supra. We are of opinion, that taking all these factors into consideration, counsel fees in the amount of $500 should be awarded to appellee's [*442] solicitor.  The decree will be reversed only as to that award and otherwise affirmed.

   Decree affirmed in part, and reversed in part, and case remanded for the passage of a decree in accordance with this opinion.  Costs to be paid by the appellant, Warner W. Waters. 

ZEPP v. DARNALL 
No. 186, October Term, 1947
 
Court of Appeals of Maryland
 
191 Md. 68; 59 A.2d 774; 1948 Md. LEXIS 347

 June  17, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order reversed and cause remanded, with costs.

CORE TERMS:  deed, conveyed, acres, purchaser, mortgage, feet, farm, surveyor, tract, parcel, foreclosure sale, marketable, designated, exceptant, mortgagor, strip of land, east line, ratification, chancellor, surveyed, fence, marketable title, chain of title, north boundary, wife conveyed, north line, disregarded, compelled, northern, daughters

COUNSEL: Louis M. Strauss, with whom was Joseph W. Scholz on the brief, for the appellant.

   James C. Morton, Jr., and John G. Rouse, Jr., for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*69] [**774] Denton Ray Zepp, purchaser of a tobacco farm in Anne Arundel County at [**775] a mortgage foreclosure sale, [*70] brought this appeal from an order overruling his exceptions to the ratification of the sale and finally ratifying it.

   The farm is a part of a tract said to contain about 398 1/2 acres called "Lebanon," which was acquired by John Thomas by a patent from the State of Maryland in 1790.  The tract is situated between Lothian and Owensville between the Harwood-Mount Zion road and Sudley-West River road.  About a hundred [***4]years ago it was surveyed and divided into two parts, known as the west and east parts.  In the second and third decades of the present century it was owned by John T. Hall, Jr., who in 1929 conveyed the west part, divided into four farms, to his four daughters, Mrs. Eugenia Hall Grey, Mrs. Elizabeth Snowden Chaney, Cornelia Hall (afterwards Mrs. Ensor) and Mrs. Ruth Hall Woodyear, and made a will devising the east part to his son, Daniel T. Hall.

   In 1934 Mrs. Grey acquired full title to the southwest farm, containing 65.75 acres, designated as lot D.  In 1938 Mrs. Chaney acquired full title to the northwest farm, containing 65 acres, designated as lot A.  In 1938 Mrs. Grey and Mrs. Chaney conveyed the rest of the west part, containing 108.28 acres, designated as lots B, C, E, F and G, to Mrs. Ensor and Mrs. Woodyear, who in turn conveyed it in July 1939, to Alphonso Siegert and wife.  In September, 1939, Daniel T. Hall conveyed the east part, designated as lot H, to Oscar Lynn Siegert and wife.  In 1940 Oscar Lynn Siegert and wife conveyed 2.17 acres from the east part to Mrs. Mary G. Brooke; and in January, 1946, they conveyed the rest of the east part, together with 6.51 acres[***5] which they acquired from Mrs. Brooke, to Alphonso Siegert and wife.

   In March, 1946, Alphonso Siegert and wife conveyed 51.84 acres from the east part to Robert Forrester.  On September 26, 1946, they conveyed to George W. Forrester and wife two parcels: (1) Lot B of the west part, containing 44.25 acres, and (2) all that remained of the east part, containing 66.99 acres. On the same day the Forresters gave a mortgage on these parcels to Eugenia [*71]B. Darnall to secure a loan for $7,000.  On December 11, 1946, the Siegerts conveyed the rest of their holdings in the west part to Maurice E. Turner and wife.  On July 22, 1947, after default by the mortgagors, R. Bennett Darnall, attorney named in the mortgage, sold the two parcels at auction in Annapolis to Zepp, the highest bidder, for $9,000.

   Exceptant contends that Darnall sold the property with the assurance that it includes all of lot B, improved by two tenant houses and two tobacco barns, worth approxiately $5,000, but that, according to John T. Latham and Fayette M. Latham, surveyors in the firm of J. R. McCrone, Jr., registered professional engineer and land surveyor, who surveyed the property for the Siegerts in [***6]1946, there is a strip of land between lots B and H which the Siegerts failed to convey to the Forresters, and that if their opinion is correct the tenant houses and barns are not on the land conveyed to the mortgagors. Joseph W. Scholz, attorney for exceptant, who specializes in title examination, testified that he tried to fit the descriptions in the deeds with the boundary lines of the original tract, the source of the title, and found that they do not coincide.  He said that while there were 262 1/4 acres in the west part of the tract, the lots which John T. Hall, Jr., conveyed to his four daughters totalled about 239 acres, and hence there is a strip of about 23 acres which was apparently not conveyed by the Siegerts to the mortgagors. The surveyors testified that Siegert in 1946 pointed out to them the east line of lot B, designated as line 2-3, as the line which he wanted them to survey for the parcel which he intended to convey to the Forresters.  There was a wire fence around all of lot B, except the west side.  The deed for the farm to Mrs. Chaney gives the length of the north lines as 341 and 1,902 feet, or a total of 2,243 feet. Just east of her farm is lot B, containing[***7] 44.25 acres, which Alphonso Siegert and wife conveyed to the Forresters.  The north line of lot B is 312 feet long, and there is a gap of 63 feet between the northwest corner of this lot and the northeast corner [*72] of Mrs. Chaney's farm. The surveyors added 2,243 [**776] feet, the width of Mrs. Chaney's farm, 312 feet and 63 feet, and the total of 2,618 feet is 451 feet less than 3,069 feet, the length of the north line of the entire tract. They declared that they delivered to Siegert their plat, containing a description of lot B prepared from the survey, and showing a strip of land separating lots B and H, and he made no objection to it.  They were positive there are no buildings on lot B as conveyed by the Siegerts to the Forresters.  After exceptions were filed to the ratification of sale, the surveyors made another trip to the property, and again surveyed the north line of the tract, and verified it for its length and magnetic bearing.

   The chancellor, however, disregarded this survey, and found that lots B and H covered by the mortgage are adjacent, and that the buildings are therefore on the land sold at the foreclosure sale. He stated that the north boundary line [***8]of the west part of the tract, as described in the deed from John T. Hall, Jr., to his four daughters, runs east from the public road for a distance of 3,069 feet to a stone near Kendall's Branch; but the surveyors must have made a mistake in running this line too far down Kendall's Branch without finding the stone, thus causing a discrepancy when they made the plat, for the lines would not close by at least 240 feet. He said that if they had not been content with surveying first the north boundary line of the entire west part, but had reversed all the lines from the beginning, they would have found that the error in the description was in the length of the original north boundary line.

   The chancellor further stated that the surveyors, having no deeds with them, ran five lines along the fence on the east line of the farm formerly owned by Mrs. Ensor and Mrs. Woodyear.  The chancellor observed that the deed for lot B describes it as the "northern part" of the parcel of 108.28 acres conveyed by Mrs. Ensor and Mrs. Woodyear to the Siegerts; and that, if it were true that the five lines which the surveyors ran do not coincide [*73] with the dividing lines between the east and west[***9] parts of the tract, then lot B would not be the northern part of the parcel conveyed by Mrs. Ensor and Mrs. Woodyear, but only a fraction of the northern part.  He held that these five lines constituting the east line of lot B, being mentioned in the deed as "what is used as part of the east boundary" of the parcel conveyed by Mrs. Ensor and Mrs. Woodyear to the Siegerts, must necessarily be the same as that east boundary, and also the same as the west line of the east part of the tract, because the deed from Mrs. Ensor and Mrs. Woodyear to the Siegerts and the prior deed from Mrs. Grey and Mrs. Chaney to Mrs. Ensor and Mrs. Woodyear called for one point in the line of the east part and therefore conveyed to the division line between the west and east parts of the tract. The opinion of the chancellor is a persuasive presentation of his reasons for these conclusions.  We cannot say these conclusions are not correct.  If they are correct, the Siegerts in their deed stated a simple fact, i. e., that they conveyed "two contiguous lots," in a most obscure way, viz., by having a line surveyed, which need not have been described at all, and then describing it in two different ways. [***10]

   It is well understood that a bidder at a mortgage sale bids on the assumption that he will receive a marketable title. A title, to be marketable, need not be free from every conceivable technical criticism; objections which are merely captious, although within the range of possibility, should be disregarded by the Court.  The test for determining the marketability of a title is whether there is any color of outstanding title or any doubt sufficient to raise a reasonable probability that the purchaser may be subjected to the hazard of litigation to defend his title.  A purchaser of real estate should not be compelled to accept a deed with a defective title, but he has the right to demand a title which will give him reasonably safe possession, and protect him from the anxiety that annoying suits may be brought against him, and, if he wishes to sell the property, to make him reasonably sure [*74] that no flaw or doubt will appear to affect its value.  In other words, to be marketable, a title must be one which a reasonably intelligent purchaser, who is well informed as to the facts, would [**777] be willing to accept in the exercise of ordinary business prudence.  Gill v. [***11]  Wells, 59 Md. 492; Trustees of Sharp Street Station of M. E. Church v. Rother, 83 Md. 289, 34 A. 843; Hewitt v. Parsley, 101 Md. 206, 60 A. 619; Garner v. Union Trust Co., 185 Md. 386, 45 A. 2d 106, 163 A. L. R. 431. We specifically hold that where the evidence shows a defect in the description of the land in one of the deeds in the chain of title, which might be reasonably expected to subject a purchaser of the land to litigation, the deed must be reformed before the title will be marketable. Scholle v. Scholle, 56 N. Y. Super. Ct. 399, 4 N. Y. S. 809; Smith v. Turner, 50 Ind. 367; 38 L. R. A., N. S., 16.

   In the Court below Siegert claimed that he had intended to convey to the Forresters the fields on both sides of the fence. Nevertheless, the surveyors swore positively (1) that the fence was the line which Siegert requested them to survey in 1946 for the east line of lot B, (2) that they designated the metes and bounds of lot B in preparing the description for the deed to the Forresters, and (3) that the houses and barns are not on lot B.  On the evidence in the record before us a prudent lawyer would certainly hesitate to advise his client to accept the[***12] title.  We cannot say that the title is so free from reasonable doubt as to warrant the Court in compelling the purchaser to accept it.  Of course, a mortgage foreclosure sale, when it is confirmed by the court, and the purchase money is paid, passes only the title which the mortgagor had in the mortgaged premises at the time of the recording of the mortgage. Code 1939, art. 66, sec. 12.  Here two surveyors of a reputable Annapolis firm of engineers positively declared that the description of the land in the mortgage does not embrace the strip of land in question.  In this Court exceptant declared that Turner and wife have already claimed title to the strip of land under their deed from the Siegerts.  At the hearing [*75] in the Circuit Court Turner was present but he was not called as a witness.

   For these reasons we find it necessary to reverse the order of ratification, and remand the cause for further proceedings.  If the Turners testify that they claim no land between lots B and H, they will be estopped from ever asserting a claim hereafter.  In that event exceptant can get a good and marketable title. If they do not so testify, exceptant should not be compelled to buy[***13] a lawsuit.  In that event a plenary equity case against all parties in interest, including the Turners, may be necessary to clear title and sell the property.

   Order reversed and cause remanded, with costs. 

LANGVILLE v. LANGVILLE 
No. 192, October Term, 1947
 
Court of Appeals of Maryland
 
191 Md. 103; 60 A.2d 206; 1948 Md. LEXIS 352

 June  17, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order reversed with costs, and case remanded for further proceedings.

CORE TERMS:  decree, attachment, non-resident, garnishee, divorce, money decree, alimony, writ of fieri facias, indebted, divorce case, jurisdictional, voucher, cured, boat, implied contract, personam, summoned, election of remedies, original proceeding, place of business, venue, arrearage, accrued, custody, merged, bind, attachment proceeding, awarding custody, estopped, quashing

COUNSEL: Joseph H. Colvin for the appellant.

   Louis M. Strauss for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*106] [**207] Anna Langville, appellant here, was granted a divorce a vinculo matrimonii from her husband, John Langville, on April 20, 1943, by the Circuit Court No. 2 of Baltimore City.  The court awarded the custody of a fourteen year old child to her, and ordered that the defendant pay $8 per week "through[***6] the Probation Department of the Supreme Bench" for the support of said child, until the child should become self-supporting, "all subject to the further order of the court in the premises." [*107] It was [**208] further ordered that the defendant pay $90 "representing accrued arrearages due for the support of said child", a counsel fee of $50 to the solicitor for the complainant, and costs.

   At the time of the institution of the divorce proceedings John Langville was a resident of the District of Columbia.  A stipulation dated July 15, 1942 was filed in the case, signed by counsel for the respective parties, which provided: "In the event a decree is granted by the Circuit Court No. 2 of Baltimore City divorcing the parties hereto, it is agreed:

   1. That the said Anna Langville * * * shall have the custody of the child of the parties, Pauline Langville * * *.

   2. That the said John Langville hereby agrees to pay eight dollars per week to the said Anna Langville for the support and maintenance of his aforesaid child, until said child becomes self-supporting.

   3. That the said John Langville hereby agrees to pay to Anna Langville within thirty days from date hereof the sum[***7] of $90.00 representing the accrued arrearage due for the support of Pauline Langville.

   4. That the said John Langville shall pay all the costs of said proceeding which shall include $50.00 attorney's fees for the said Anna Langville.

   5. Power and authority for the acceptance of process in the aforestated action is hereby expressly conferred upon Joseph Loeffler, Attorney at Law, 1019 Fidelity Building, Baltimore, Maryland in which event said John Langville agrees to be binding upon himself as if personal service had been made upon him, the said John Langville.

   Stipulations herein agreed upon by the parties hereto shall be binding only in the event a decree is granted by the Circuit Court No. 2 of Baltimore City as a result of the proceedings herein, divorcing the parties hereto and shall not bind them for any other purpose."

   On January 23, 1947, counsel for Mrs. Langville filed a non-resident attachment in the Circuit Court for Anne [*108] Arundel County against John Langville, in which she made oath that John Langville was indebted to her in the sum of $383 representing the balance due under the above mentioned stipulation agreement and decree. A copy of the agreement[***8] and a certified copy of the decree were attached to the affidavit and narr.  The narr recited that the claim was "itemized in voucher in short note attached hereto and made a part hereof", but no voucher appears in the record.  A writ of attachment was duly issued, and the Sheriff attached a motor boat in the possession of Samuel Langville, and made his return.  Copies of the short note were posted on the boat, placed in the hands of the garnishee, filed with the Clerk of Court, posted at the Court House door and mailed to the defendant in Washington, D. C. Thereupon an action was docketed against the garnishee. No pleas to the action were filed either by the defendant or the garnishee. On May 13, 1947, a motion for condemnation nisi was filed in the original action and granted.  On June 10, 1947, upon waiver of jury trial by the plaintiff, the Court found a verdict against the defendant for the sum of $383 with interest from date and costs. No judgment was entered upon this verdict.  No motion was filed in the garnishee case.  On June 17, 1947, the plaintiff filed an order for a writ of fieri facias upon the supposed judgment, which was duly issued.  The Sheriff made a levy [***9]under this writ on July 15, 1947, but did not advertise the sale.

   On August 21, 1947, the plaintiff filed a petition alleging that on July 31, 1947, Samuel Langville, father of the defendant, had filed a boat lien for $130, and S. Irving Langville, a brother of the defendant, had filed a boat lien for $194.75.  She alleged that said liens were invalid and in fraud of her rights, and prayed that they be stricken from the Boats' Lien Docket and that the sale be made free and clear of said liens.  The Court signed a show cause order on this petition.  On August 25, 1947, Samuel Langville and Irving Langville filed answers alleging that their liens were valid and bona [*109] fide.  On November 20, 1947, there was a hearing upon the petition and answers. The liens, sworn to on July 30, 1947 and recorded the following day were introduced in evidence, along with all of the papers and exhibits in the attachment case.  The Court did not hear [**209] evidence or pass upon the validity of the liens, but of its own motion, and upon the examination of these papers, held that the Circuit Court for Anne Arundel County had no jurisdiction to entertain the non-resident attachment based[***10] upon the decree of the Circuit Court No. 2 of Baltimore City, and that the stipulation agreement was merged in that decree. For these and other reasons he thereupon quashed the writ of fieri facias and the attachment. From that order the appeal comes here.

   There were a number of procedural irregularities in the attachment proceeding. Although the appellant contends that a voucher was filed along with the short note, the clerk denies that it was, and declined to include a purported copy in the record.  Compare Johnson v. Stockham, 89 Md. 358, 43 A. 920, Id. 89 Md. 368, 380, 43 A. 943. That, however, would be a defect that could be cured by amendment (Morgan v. Toot, 182 Md. 601, 611, 35 A. 2d 641) and would be cured by verdict.  Sugar Products Co. v. Kitzmiller, 137 Md. 647, 653, 113 A. 345. Although a verdict was found in the original proceeding, no judgment was entered thereon, and there was no verdict or motion filed in the case docketed against the garnishee. It follows that the writ of fieri facias was prematurely issued.  These procedural defects are not, however, jurisdictional, although it is generally held that attachment proceedings must show upon[***11] their face substantial compliance with the statute.  Gill v. Physicians & Surgeons' Bldg, etc., 153 Md. 394, 138 A. 674; Coward v. Dillinger, 56 Md. 59; Mears v. Adreon, 31 Md. 229; Boarman v. Patterson and Israel, 1 Gill. 372; Bruce v. Cook, 6 Gill. & J. 345. If the non-resident attachment could not be brought in Anne Arundel County, it could not be brought elsewhere, because such a proceeding can only be brought where the garnishee [*110] resides or has his place of business. Sanitary Grocery Co. v. Soper, 146 Md. 130, 126 A. 54. If the defect is jurisdictional, it may be raised for the first time on appeal (Coward v. Dillinger, supra,) or ex mero motu.  Trinidan Asphalt Mfg. Co. v. Standard Oil Co., 214 Mo. App. 115, 258 S. W. 64; 6 C. J. p. 433 n. 42, 7 C. J. S., Attachment, § 431.

   For the purposes of this case we shall assume, without deciding, that the question posed by the action of the trial court in quashing the attachment proceeding was jurisdictional, and not merely a question of venue. Compare Howell v. Bethlehem-Sparrows Point Shipyard, 190 Md. 704, 59 A. 2d 680. We think, however, that the trial court was in error in[***12] holding that the Circuit Court of Anne Arundel County was without jurisdiction.

   We are here dealing with a claim of indebtedness based upon a decree for support.  We think the trial court was correct in holding that the stipulation agreement merged in the decree. The Circuit Court No. 2 of Baltimore City had jurisdiction of the non-resident defendant at the time it passed the decree, which was expressly made subject to further order of that court.  The decree was an independent action of the chancellor, not merely confirmatory of the agreement.  Slacum v. Slacum, 158 Md. 107, 110, 148 A. 226; Kriedo v. Kriedo, 159 Md. 229, 232, 150 A. 720. Nor could the agreement bind or limit the court's discretion, with regard to the best interests of the child.  Code, art. 16, § 42.  The decree created a debt, not an obligation to pay alimony. Bauernschmidt v. Safe Deposit & Trust Co., 176 Md. 351, 4 A. 2d 712; Knabe v. Knabe, 176 Md. 606, 6 A. 2d 366, 124 A. L. R. 1317; Bushman v. Bushman, 157 Md. 166, 145 A. 488. Although such a debt could not be enforced by attachment for contempt, other remedies for its enforcement are available under Code, art. 16, § 211.  The decree, [***13] however, was not a money decree. Before execution could be had upon it, further proceedings would be appropriate, under the established practice, "for the [*111] purpose of converting overdue installments under the original decree into a lump sum so as to become a lien upon the property of the defendant and to facilitate execution or other action under Section 211, art. 16 of the Code." Leberstein v. Leberstein, 186 Md. 25, 45 A. 2d 753. Compare Marshall v. Marshall, 164 Md. 107, 116, 163 A. 874. Whether the Circuit Court No. 2 of Baltimore City retained jurisdiction of the nonresident defendant so as to permit the entry of a money decree in personam, against him, or [**210] whether any other remedy, by way of sequestration, execution or otherwise, (compare Fetting v. Flanigan, 185 Md. 499, 45 A. 2d 355) would be available under section 211, are questions we need not now consider. Section 16 of art. 16 of the Code seems to be limited to claims for alimony in the strict sense.  In any event, a seizure under that section must precede the decree. Keen v. Keen, 191 Md. 31, 60 A. 2d 200.

   The attachment statute relied upon in the instant case (Code, art. [***14]9, § 4) requires that the "bond, account or other evidence of debt, by which the said debtor is so indebted", must be exhibited.  The term "indebted" is not to be construed technically or in a strict legal sense.  The claim may be based upon an implied contract (Downs v. Baltimore, 111 Md. 674, 692, 76 A. 861, 41 L. R. A., N. S., 255, 19 Ann. Cas. 644; Alvey v. Hartwig, 106 Md. 254, 265, 67 A. 132, 11 L. R. A., N. S., 678, 14 Ann. Cas. 250); or upon the transcript of a foreign judgment.  Cockey v. Milne's Lessee, 16 Md. 200; Bauernschmidt v. Safe Deposit & Trust Co., supra. The appellee contends, however, that the decree of the Circuit Court No. 2 of Baltimore City cannot be enforced by any proceeding in a court of law, but only by further proceedings in the equity court.

   In Boyle v. Schindel, 52 Md. 1, 7, an action of debt was brought in the Circuit Court for Washington County upon a money decree of the same court passed in an equity proceeding.  It was held that the action would not lie.  The Court said: "It is not because decrees of [*112] courts of equity are not of equal dignity and finality with judgments at law, that they are not subjects of suits [***15]at law in this State, but because they are so equal and final they require no extrinsic aid from courts of law to give them full force and effect." The rule there announced was predicated upon the desirability of not multiplying equally efficacious remedies, and not upon any lack of jurisdiction in the law court.

   In Alvey v. Hartwig, supra [106 Md. 254, 67 A. 137], a wife was granted a divorce in the Circuit Court of Baltimore City against a non-resident husband, who was not summoned and did not appear.  The decree awarded custody of minor children to the wife, but did not award any alimony or support.  Thereafter, the wife brought a non-resident attachment in Washington County, in which the husband appeared and contended that the plaintiff's rights, if any, should have been asserted in the original equity proceedings, and if she had any remedy at law, based upon a legal obligation to support, she was estopped from asserting it by reason of the decree awarding custody to her.  On the question of estoppel, the court said: "As we view it, if the defendant had been summoned in the divorce case, it would be clear that the plaintiff would be barred in the case at bar." The court[***16] held that since the defendant was not summoned, and the equity court had no jurisdiction to enter a decree in personam for support, she was not estopped by the decree awarding custody. It was held that the attachment was properly brought upon the implied contract.

   In the instant case the equity court had jurisdiction to make an award of support, based upon the appearance of the defendant through counsel and the stipulation filed, and did fix the amount stipulated.  As suggested in the Alvey case, this would effectively bar an action upon the theory of implied contract, but it does not follow that the decree can only be enforced in the equity court. It is doubtful whether any remedy could be had in that court until the decree was converted into a money decree, [*113] and whether service of process upon his solicitor in the original proceeding would suffice to support a decree in personam, are questions we leave open.  McSherry v. McSherry, 113 Md. 395, 401, 77 A. 653, 140 Am. St. Rep. 428; compare Borchert v. Borchert, 185 Md. 586, 45 A. 2d 463, 162 A. L. R. 1078. Even if other remedies are available in the equity court, we think the remedy of a proceeding[***17] in rem by way of non-resident attachment, brought in the only jurisdiction where it could reach the property in question, should not be barred by the proceeding in the equity court which has not ripened into a money decree. The harsh doctrine of election of remedies is one that should not be extended to cases where there is no showing of prejudice.  Compare Petrillo v. Stein, 184 Md. 644, 652, [**211] 42 A. 2d 675, and Johnson v. Miles, 188 Md. 455, 53 A. 2d 30. It is a defense that is not available unless pleaded.  Hertz v. Mills, D. C., 10 F. Supp. 979, affirmed 4 Cir., 82 F. 2d 1010. Clearly, it does not go to the jurisdiction of the court.

   For the reasons stated, we think the trial court was in error in quashing the attachment sua sponte, and that the court should permit the plaintiff to make such amendments and file such motions as may be requisite to dispose of the case on the merits.  If and when judgment of condemnation is made final, the court should order the sale of the property attached and pass upon the validity and priority of any claims asserted against the proceeds.  The property is in custodia legis under the original levy.  First National [***18]  Bank v. Corporation Commission, 161 Md. 508, 157 A. 748, 81 A. L. R. 1407; Thomson v. Baltimore & S. Steam Co., 33 Md. 312.

   Order reversed with costs, and case remanded for further proceedings. 

HYATT et ux. v. ROMERO et ux. 
No. 158, October Term, 1947
 
Court of Appeals of Maryland
 
190 Md. 500; 58 A.2d 899; 1948 Md. LEXIS 300

 May  20, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order affirmed and cause remanded, with costs.

CORE TERMS:  lease, new lease, lessee, recorded, rent, tenant, lessor, Conveyancing Act, renew, tenancy, original lease, combined, entitle, specific performance, valid agreement, option to purchase, legal interest, written lease, injustice, occupancy, demurrer, renewal, convey, forms of law, valuable consideration, conditional contracts, specifically enforced, bilateral contract, express provision, lease of land

COUNSEL: Samuel Schenker and Noah A. Hillman for the appellants.

   George B. Woelfel for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, and Henderson, JJ. and Bailey, Circuit Judge, specially assigned.  Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*502] [**900] This is a suit for specific performance brought in the Circuit Court for Anne Arundel County by Fred Romero and wife to compel Sam Hyatt and wife to convey to them the real estate at 77 and 79 Main Street in the city[***5] of Annapolis.

   Complainants allege that by written agreement executed on January 21, 1946, defendants leased the property to them for the term of six years from February 1, [*503] 1946, to January 31, 1952, for rent of $95 per month; that the lease provides that at any time during its continuance they shall have the option to purchase the property for $9,000; that they entered the premises and have rightful possession thereof under the lease; and that they now desire to exercise the option and are ready and willing to pay to defendants the sum of $9,000 and accept a deed for the property, but defendants have refused to convey the title.

   Defendants demurred to the bill on the ground that the lease was not acknowledged and recorded as required by the Maryland Conveyancing Act. The chancellor overruled the demurrer, and defendants appealed here from that order. 

   The lease, a copy of which was filed as an exhibit with the bill of complaint, contains a provision that the lessees shall have the right to renew the lease for an additional period of six years, provided that they shall give to the lessors at least 30 days notice in writing prior to the expiration of the lease of their[***6] intention to renew the same.  The Conveyancing Act provides that no estate of inheritance or freehold, or any [**901] declaration or limitation of use, or any estate above seven years, shall pass or take effect unless the deed conveying the same shall be executed, acknowledged and recorded as provided in the Act.  Code 1939, art. 21, sec. 1.  We have held that a lease for more than seven years, if not recorded in accordance with the Conveyancing Act, can pass no legal interest or estate in the land.  Howard v. Carpenter, 11 Md. 259, 275; Polk v. Reynolds, 31 Md. 106, 112; Cook v. Boehl, 188 Md. 581, 591, 53 A. 2d 555, 560.

   We also hold that where a lease of land gives an option for a renewal of the term and a new lease must be executed to entitle the tenant to remain in possession of the land, the term in the original lease is not combined with the term in the new lease. On the contrary, the terms are combined where no new lease was intended to entitle the tenant to remain under the original lease. The question whether the right of a lessee to renew the [*504] lease for an additional term requires the execution of a new lease depends upon the intention of the[***7] parties to be gathered from the language of the lease, the purpose to be accomplished and the surrounding circumstances at the time of its execution.  In the absence of an express provision that a new lease is required for the additional term, the law presumes that no new lease was intended.  The reason for the presumption is that the preparation of a new lease would cause touble and expense, which should be avoided, if possible, unless it clearly appears that the parties had expressly agreed that a new lease should be executed.  Schultz v. Kaplan, 189 Md. 402, 414-415, 56 A. 2d 17, 23. On this appeal complainants abandoned their contention that the parties intended that a new lease should be executed for the additional term.  We accordingly hold that the unrecorded lease for the term of six years with the right of the lessees to renew for an additional term of six years does not pass any legal interest or estate in the property.

   Nevertheless, the bill of complaint alleges: (1) That complainants and defendants executed an agreement by which defendants agreed to lease the property to complainants for six years; (2) that complainants entered the property February 1, 1946, with the[***8] consent of defendants, and have continuously occupied it from that time until the institution of suit; and (3) that complainants have paid the rent stipulated in the agreement, and defendants have accepted the rent. It is well established that, although a written lease is invalid for noncompliance with the Conveyancing Act, yet the law implies a tenancy from the lessee's occupancy of the premises and his payment of the stipulated rent and the acceptance of the rent by the lessor. We hold that where a lease for a term of more than seven years has been executed but not recorded, and the lessee enters into possession of the premises and pays yearly rent, which is accepted by the lessor, the lessee is considered as tenant from year to year upon all the terms of the lease except as to duration.  Falck v. Barlow, 110 Md. 159, 163, 72 [*505] A. 678, 17 Ann. Cas. 538; Cook v. Boehl, 188 Md. 581, 591, 53 A. 2d 555, 560. Compare Schaeffer v. Bilger, 186 Md. 1, 45 A. 2d 775, 163 A. L. R. 706; Gressitt v. Anderson, 187 Md. 586, 51 A. 2d 159. If such an agreement is adequate in other respects, it constitutes a perfectly valid agreement to enter into a lease in accordance[***9] with the terms set forth.  Such an instrument is admissible in evidence to show the terms of the tenancy implied by law.  Thompson v. Thomas & Thompson Co., 132 Md. 483, 485, 104 A. 49.

   Thus, in Hall v. Trustees of Sharp Street Station of M. E. Church, 155 Md. 654, 142 A. 508, where the bill of complaint alleged a definite oral agreement by the defendant to lease property to the complainant for ten years, the complainant's entry into possession of the property, his occupancy of it for six years, his erection of a building thereon, and his payment of the stipulated rent and the defendant's acceptance of it, this Court held that the complainant had the right to specific performance, for otherwise the defendant would perpetrate a fraud upon the complainant.  It is a well established principle that courts of equity will not permit the forms of law to be made the instruments of injustice, but will interpose against parties [**902] attempting to avail themselves of the rigid rules of law for unfair purposes.  2 Story, Equity Jurisprudence, 14th Ed., sec. 1032.

   In the instant case, complainants have the right to specific enforcement of the contract which arose upon their[***10] exercise of the option to purchase the property during the existence of the lease. The term "option" is used to include both (1) unsealed offers without consideration, and (2) binding conditional contracts. In either case, however, when the offer is seasonably accepted a new contract arises.  It is not the promise to give an option which is specifically enforced; it is the bilateral contract which arises upon acceptance of the option.  If an option is given for a valuable consideration, the party exercising the option may enforce it, and it is not necessary that the consideration shall have been given exclusively [*506] for the option.  It is sufficient if it is one of the provisions of a contract for which consideration was given.  Trotter v. Lewis, 185 Md. 528, 45 A. 2d 329; 5 Williston on Contracts, Rev. Ed., sec. 1441.

   We will therefore affirm the chancellor's order overruling the demurrer to the bill of complaint, and remand the cause for further proceedings.

   Order affirmed and cause remanded, with costs. 

COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. BUCH 
No. 142, October Term, 1947
 
Court of Appeals of Maryland
 
190 Md. 394; 58 A.2d 672; 1948 Md. LEXIS 288; 5 A.L.R.2d 569

 April  23, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  mandamus, valuation, reduction, abatement, assessing, undervaluation, classification, demanding, notice, duty, administrative body, complain, taxation, underassessment, injunction, continuous, finality, modify, abate, final assessment, competitors, taxed, declaratory judgment, writ of mandamus, property owned, taxable year, legal right, non-assessment, reassessment, supervision

COUNSEL: Benjamin Michaelson for the appellants.

   H. Vernon Eney and Philemon B. Coulter, with whom were Armstrong, Machen & Eney on the brief, for the appellee.

   Submitted on brief, amicus curiae, by Hall Hammond, Attorney General, and Richard W. Case, Assistant Attorney General, for the State Tax Commission.

JUDGES: Marbury, C. J., Delaplaine, Collins, Henderson, and Markell, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*396] [**673] Justin G. Buch, a taxpayer and resident of Anne Arundel County, and president of the Citizens Protective Association of Anne Arundel County, Incorporated, filed a petition with the County Commissioners on July 21, 1947, demanding a hearing by that body in regard to "the inequitable, unjust and undervalue assessments" of 47 parcels of real estate and improvements in Anne Arundel County, particularly described in the petition, owned by taxpayers other than the petitioner.  On August 14, 1947, the Commissioners wrote counsel for the petitioner: "In view[***4] of the fact that all property in Anne Arundel County has been assessed or is now being assessed as provided by statute, under the supervision of the State Tax Commission, the petition for a hearing is out of order and cannot be used as a basis for a hearing on assessments." On September 15, Buch filed a petition in the Circuit Court for Anne Arundel County for a writ of mandamus requiring the Board to grant him a hearing.  The Commissioners filed a demurrer and answer; the petitioner demurred to the answer.  The appeal is from an order of the Court sustaining the petitioner's [*397] demurrer and directing the writ to issue as prayed.  The State Tax Commission did not intervene in the proceeding below, as authorized by Section 175(13) of Art. 81 of the Code, but a brief was filed here on its behalf by the Attorney General as amicus curiae.

   The appellant contends (1) that the granting of a hearing is wholly discretionary with the County Commissioners, and not subject to judicial review, and (2) that in any event the remedy for a refusal of a hearing is by way of appeal to the State Tax Commission, and not by resort to mandamus. The brief filed by the Attorney General attacks[***5] the order on the broader ground that under the statute a taxpayer has no right to a hearing except in relation to the assessment of his own property.  We shall discuss the latter contention first.

   Sections 190 and 191 of Art. 81 of the Code provide:

   "190. Any taxpayer, or city, or the Attorney General on behalf of the State, may demand a hearing before the County Commissioners or the Appeal Tax Court of Baltimore City or the assessing authorities of any other city as to the assessment of any property or any unit of tax value, or as to the increase or reduction or abatement of any such assessment, or as to the classification thereof, for the next ensuing year; and no formal proceedings shall be required. In case of any such hearing any party in interest may file data and information bearing thereon, without regard to the technical rules of evidence.  Any such person or corporation so demanding a hearing may also in writing [**674] file information with the County Commissioners or the Appeal Tax Court of his address or the address of the agent or attorney to which any notices pertaining to said matter shall be sent, provided such agent or attorney representing such person or corporation[***6] has first filed with such County Commissioners or the Appeal Tax Court of Baltimore City or the assessing authorities of any other city his right or power of attorney to represent such person or corporation.  If any such address shall be filed it shall be the duty of the [*398]County Commissioners or the Appeal Tax Court to cause a statement of the order or action or refusal to act of such County Commissioners or Appeal Tax Court to be posted in the United States Mail, postage prepaid, to such address, and no action or refusal to act shall be operative as against the person giving such address until such statement shall be so mailed.  No demand for a hearing shall be granted under this section unless filed in the counties before the date of finality for the taxable year in question or in Baltimore City before July first preceding the taxable year in question."

   "191. Any taxpayer, any city, or the Attorney General on behalf of the State, or a supervisor of assessments as provided in Section 177 of this Article, claiming to be aggrieved because of any assessment or classification, or because of any increase, reduction, abatement, modification, change or alteration or failure or[***7] refusal to increase, reduce, abate, modify or change any assessment, or because of any classification or change in classification, or refusal or failure to make a change, by the County Commissioners, the Appeal Tax Court of Baltimore City or the assessing authorities of any other city, may by petition appeal to the State Tax Commission therefrom, and the State Tax Commission shall hear and determine all such appeals within sixty days from the entry thereof with said Commission.  * * * No appeal on behalf of a taxpayer shall be allowed under this section from a failure or refusal to abate, reduce or reclassify an existing assessment unless application in writing for such action shall have been filed by the appellant with the assessing authority appealed from within the time limited for the filing of a demand for a hearing by Section 190 of this Article."

   Upon its face, the language of Section 190 that "any taxpayer * * * may demand a hearing before the County Commissioners * * * as to the assessment of any property or any unit of tax value, or as to the increase or reduction or abatement of any such assessment", would appear [*399] to be clear and unambiguous, and so sweeping[***8] as to forbid its limitation, by construction, to the assessment of property owned by the particular taxpayer demanding the hearing.  It may also be observed that the express authorization of a hearing in the event of a reduction or abatement of assessment would seldom be availed of by a taxpayer so fortunate as to obtain that particular relief.

   The Attorney General attempts to meet these difficulties by arguing that the provision for a hearing set out in Section 190 of the present Code was merely a paraphrase of Section 238 of Chapter 841 of the Acts of 1914, creating the State Tax Commission, codified along with other sections by Chapter 226 of the Acts of 1929.  But we think that Section 238 was fully as broad as Section 190, in according to any taxpayer a right to "demand a hearing * * * as to the assessment of any property," although it did not contain the clause referring to increase, reduction or abatement of assessments.  The second paragraph of section 238 provided that "any taxpayer * * * having been assessed by the order of the County Commissioners * * * after a hearing as hereinbefore provided, may appeal to the State Tax Commission".  Assuming that this paragraph limited [***9]the right of appeal to a taxpayer who had been assessed, it does not follow that the right to a hearing was so limited.  The appeal allowed in the present section 191 to "any taxpayer * * * claming to be aggrieved", is not in terms so restricted.

   The concept that a taxpayer may have an interest in, and a legal right to complain of, the underassessment or nonassessment of property owned by other taxpayers, is not foreign to our jurisprudence.  [**675] In Schley v. Lee, 1907, 106 Md. 390, 403, 67 A. 252, 257, a taxpayer, on behalf of himself and others, filed a suit in Equity to enjoin the State Tax Commissioner from making certain deductions in assessing the shares of bank stock, which would result in their underassessment or non-assessment. The Court said: "We have no doubt of the right of the [*400] appellee to resort to equity for relief by injunction in the present case.  It is apparent that if the tax commissioner be permitted to make the proposed assessment in accordance with his avowed purpose, serious loss and injury would result to the taxpayers of Montgomery County through the consequent reduction of the basis of taxation for county purposes. From this unlawful[***10] assessment, if it should be made, the taxpayer would have no appeal." In Baltimore Steam Packet Co. v. Baltimore, 1931, 161 Md. 9, 22, 155 A. 158, 164, the appellant complained that it was taxed on certain vessel property, while its competitors were exempt under what was claimed to be an invalid statute.  The Court said: "If this be true, its remedy lies, not in attempting to be relieved of the tax itself, but in restraining the proper taxing officials from allowing the exemption to its competitors. Every taxpayer has a financial interest in seeing that all property in the state, properly the subject of taxation, should be taxed, because, by increasing the taxable basis, the rate necessary for the production of the expenses of the state and the local governments will be reduced, and the individual's tax correspondingly lowered." See also Liggett v. Lee, 288 U.S. 517, 540, 53 S. Ct. 481, 77 L. Ed. 929, 85 A.L.R. 699, and Maxwell v. Baldwin, 40 Md. 273. (Mandamus to require assessors to proceed.)

   The Attorney General argues that to adopt a literal interpretation of the Statute would convert the County Commissioners into a Board of Review or Equalization, open the door to[***11] vexatious and frivolous demands, and interfere with the orderly reassessment of property under the continuous assessment plan prescribed by section 175(8) of Art. 81, Code Supp. 1947.  That section, however, not only authorizes the State Tax Commission to establish in each county and in Baltimore City five districts or five classes of property and to require that "the property in one of the said districts or classes be reviewed and reassessed each year in rotation", but provides that the Commission "shall have the power at any [*401] time to order and enforce a review and reassessment of all property, or all property of any class * * * in any district or part of a district * * * if the existing assessments are found to be greater or less than the assessments on other properties possessing similar and comparable values." Section 177 of Art. 81 imposes a duty upon Supervisors of Assessment, to recommend assessments to the County Commissioners, "obtaining all necessary data and information as to the valuation and existance of property subject to taxation", and reporting to the Commissioners.  See also chapter 185, Acts of 1939, sections 152A-152H, creating a Bureau of Assessment[***12] for Anne Arundel County.  "From these reports and the evidence obtainable, it shall be determined by the respective County Commissioners * * * whether the assessments against any property or whether any unit of assessment values in any district shall be changed." (Section 177, Art. 81.) The Commissioners likewise "have the power to obtain additional data, and in case the assessment so determined upon is not satisfactory * * * shall order a new valuation."

   Upon the present record we must assume that the petitioner was acting in good faith in his proffer to show that particular properties were underassessed.  Of course, if proof is lacking on that score, the proceeding should be dismissed. On the other hand, it is clear that upon a proper showing the Commissioners have the power and duty to "order a new valuation" at any time before the date of finality, wholly apart from the continuous assessment plan.

   We think the petitioner is entitled, at least, to a hearing under the statute.  If the burden of such hearings becomes too great, we may point out that the County Commissioners of Baltimore and Montgomery counties are empowered by sections 186, 186A and 186B of Art. 81, Code Supp. [***13] 1947, to create by resolution, an [**676] Appeal Tax Court and to delegate to it the entire assessment function.  Such a system has been in effect in Baltimore [*402]City for many years.  In any event, the argument ab inconvenienti has little weight as against the allegations of undervaluation and inequity, directly affecting the pecuniary interest of the petitioner.

   We think there is likewise no force in the contention that the County Commissioners have an absolute discretion to refuse a hearing.  See 4 Cooley, Taxation, 4th Ed., § 1601, p. 3189.  The right of any taxpayer "to demand a hearing" clearly imports a right to be heard, without regard to "formal proceedings." We do not mean to suggest, however, that the County Commissioners have no discretion as to the conduct or extent of the hearing accorded.  The inquiry should, of course, be confined to the points in issue.

   Upon the question as to whether the remedy for refusal of a hearing should be by way of appeal to the State Tax Commission rather than by mandamus, we find more difficulty.  The argument is that an appeal is allowed from "a refusal or failure to make a change" in any assessment, and that the[***14] refusal to grant a hearing may be considered as a refusal to make a change.  It is well established that were an appeal from the action of an administrative body is provided by statute, a remedy by way of mandamus, injunction or declaratory judgment will be denied.  Stark v. State Board of Registration, 179 Md. 276, 19 A. 2d 716; Williams v. Tawes, 179 Md. 224, 17 A. 2d 137, 132 A. L. R. 1105. In the Stark case [179 Md. 276, 19 A. 2d 720], however, it was recognized that mandamus "may be issued to compel a hearing or to come to a decision." The appellant strongly relies upon a certain passage from our recent decision in Wasena Housing Corp. v. Levay, 188 Md. 383, 393, 52 A. 2d 903, 908: "Upon receipt of the notice of assessment the appellant could have entered an appeal to the State Tax Commission from the final assessment, or he could have applied to the County Commissioners for a hearing (as the notice invited him to do), on the only point he questioned, i. e. whether some of the buildings [*403] were not substantially completed (Art. 81 section 190).  With or without a hearing, he could have appealed to the State Tax Commission, from the action of the[***15] County Commissioners or their failure or refusal to act.  Art. 81 sec. 191."

   In that case an action was brought under the refund statute (art. 81, section 162, Code Supp. 1947) which denied relief after an assessment "has become final and has not been modified on appeal * * *, and the only basis for the refund is a claim that such assessment was erroneous or excessive." We held that the failure to appeal from an assessment based on alleged error in a finding of fact was a bar to the action.  Upon receipt of the notice, two courses were open to the taxpayer (1) to appeal at once from the assessment without demanding a hearing, or (2) to apply for a hearing and appeal from a failure or refusal of the Commissioners to modify the assessment in the light of the evidence produced by him.  In short, we recognized the taxpayer's right, under the circumstances of that case, to waive a hearing and appeal directly from the final assessment. The case is clearly distinguishable.

   The proceeding in the instant case was designed to force a review and revaluation of the properties listed.  The owners, who were not parties to the case, would obviously have been entitled to notice before their assessments [***16]could be increased.  The Commissioners, by refusing a hearing, did not refuse to make a change in those assessments, but refused to consider whether a new valuation was in order.  So far from exercising a considered judgment, they denied, in effect, that they had any authority to deal with the matter at all.  Section 191 does not in terms provide for an appeal from the refusal of a hearing, as contrasted with an appeal from a refusal to abate or modify an existing assessment.

   To hold that an appeal lies to the Tax Commission under such circumstances, would require that body either to remand the case for a hearing by the Commissioners [*404] (which the Tax Commission has no express authority to do) or to conduct a hearing itself, in which event it would be exercising original jurisdiction, rather [**677] than the appellate jurisdiction which is clearly contemplated by sections 192, 193 and 194 of Art. 81.  (See, however, section 184 of Art. 81, authorizing mandamus by the Commission, if its instructions are not followed.) In the absence of a hearing by the County Commissioners, there would be no "record of * * * proceedings" (section 192), by "the body to which decision * [***17] * * is principally committed." Hathcock v. Loftin, 179 Md. 676, 678, 22 A. 2d 479, 480. In Baltimore v. Shapiro , 187 Md. 623, 631, 51 A. 2d 273, 276, 277, we said: "It is incumbent upon a party to produce evidence before that [an administrative] body before seeking a review of the Board's action." It does not necessarily follow that a hearing is always indispensible to an appeal, but where there is an express statutory right to a hearing it would seem that the Courts should enforce the right without requiring recourse to a second administrative agency.  In State, ex rel. Holland v. Baltimore County, 46 Md. 621, 622, it was intimated that mandamus would lie in "a case in which the (county) commissioners have refused to perform an act commanded by law." Compare Maxwell v. Baldwin, supra. In the instant case we think the writ was properly issued.

   Order affirmed, with costs. 

HILLMAN v. BOONE et al. 
No. 1, October Term, 1948 (Adv.)
 
Court of Appeals of Maryland
 
190 Md. 606; 59 A.2d 506; 1948 Md. LEXIS 311

 April  2, 1948, Decided  
 May  25, 1948, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: For the reasons above stated, this court on April 2, 1948, by a per curiam order, affirmed the order of the lower court.

CORE TERMS:  election, vacancy, occurrence, successor, appointed, appointment, expiration, elected, resignation, recurrence, sentence, fill, general election, qualification, disqualification, ratified, removal, duly qualified, one year, biennial, appoint, hereinbefore provided, hold office, quadrennial, candidate, ambiguity, sitting, filled, question presented, fill a vacancy

COUNSEL: Noah A. Hillman for the appellant.

   Hall Hammond, Attorney General, and J. Edgar Harvey, Assistant Attorney General, with[***4] whom were Matthew S. Evans, R. G. Hoffman, Armstrong, Machen & Eney, Charles C. W. Atwater and C. E. Hogg on the brief, for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Markell, J., delivered the opinion of the Court.

OPINIONBY: MARKELL

OPINION: [*608] [**506] This is an appeal from an order dismissing, on demurrer, a petition for a writ of mandamus to require the election officials to recognize appellant as a candidate for nomination for the office of Associate Judge of the Fifth Judicial Circuit in the primary elections in May, 1948, and to place his name on the ballots in those primary elections.

   The question presented is whether, under Article 4, section 5, of the Constitution, as now in force, a judge of the Fifth Circuit is to be elected in 1948.  Art. 4, Sec. 5, provides: "Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge, or creation of the office of any judge, or in any other way, the Governor shall appoint a person duly qualified to fill said office, who shall hold the [***5]same until the election and qualification of his successor; [except that when a vacancy shall exist in the office of Chief Judge of the Supreme Bench of Baltimore [**507] City, the Governor may designate an Associate Judge of said Supreme Bench as Chief Judge of said Supreme Bench, and such appointee as Chief Judge shall hold such office for the residue of the term for which he was last elected an Associate Judge of said Supreme Bench.] His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term.  Except in case of reappointment of a judge upon expiration of his term of fifteen [*609] years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected." (Italics and brackets supplied.  Bracketed portion was added by amendment proposed by Act of 1945, ch. 703 and ratified[***6] at the 1946 election; remainder constitutes section 5 amended as proposed by Act of 1943, ch. 772 and ratified at the 1944 election, effective January 1, 1945. Italicized words were not contained in corresponding provisions of section 5 before 1944 amendment.)

   Judge Melvin died on December 14, 1945.  In 1946 Judge McWilliams was appointed his successor as a judge of the Fifth Circuit.  Constitution, Art. 4, secs. 5, 21.  Judge McWilliams resigned as of March 1, 1948.  Judge Anderson was appointed his successor and qualified on March 9, 1948.  Under section 5 Judge Anderson is to hold office "until the election and qualification of his successor. His successor shall be elected" at the first biennial Congressional election "after one year after the occurrence of the vacancy".  Appellant contends that: "the occurrence of the vacancy" was at Judge Melvin's death, not at Judge McWilliam's resignation; there was "a recurrence of the vacancy" at Judge McWilliam's resignation; but "the occurrence of the vacancy" does not include "every occurrence or recurrence of a vacancy" -- only the first "occurrence" of a vacancy, not any subsequent "recurrence".  We think this contention is[***7] contrary to the plain meaning of the words, and the evident purpose, of the 1944 amendment.

   "Recur" means "occur again".  In this context, "every occurrence or recurrence" means every first or subsequent occurrence. In section 5 the first sentence gives to "the occurrence of the vacancy" in the second sentence the broadest possible definition, both as to (a) number, "every occurrence or recurrence", and (b) nature, "through death, resignation, removal, disqualification by reason of age or otherwise, [or expiration of the term of fifteen years] of any judge, or creation of [*610] the office of any judge or in any other way".  The italicized words were new in the 1944 amendment.  It has been questioned whether "vacancy", without definition, would include a newly created office.  Delehanty v. Britt, 163 App. Div., N. Y., 736, 149 N. Y. S. 97; contra, Richardson v. Young, 122 Tenn. 471, 125 S. W. 664; Walsh v. Commonwealth , 89 Pa. 419, 33 Am. Rep. 771. On the other hand, there would be no occasion to mention "recurrence" of a vacancy if a judge then appointed were not, like every other appointed judge, subject to the minimum period for election of [***8] his successor. The power to appoint upon recurrence of a vacancy is not new, but the tenure is.  "The occurrence of the vacancy" in the second sentence refers to the whole, not part, of the definition in the first sentence. The two sentences are co-extensive.  Shortly stated, the first provides that upon every occurrence of a vacancy in any way, a judge shall be appointed, to hold office until the election and qualification of his successor; the second provides, that his successor shall be elected after one year after the occurrence of the vacancy.

   The effect and purpose of the amendment is also clear.  By making the provision for appointments to fill vacancies all-inclusive and providing for biennial, instead of quadrennial elections, but only after one year after the latest vacancy, the electorate at every election are given, approximately, at least one year and less than three of experience with an appointed sitting judge, instead of none at all or any period less than four years.  This purpose is not impaired by making the occurrence of the vacancy [**508] the point of time and ignoring such accidents as delays in appointment or qualification and the variation[***9] in the date of election day.

   The meaning and purpose of the 1944 amendment, with respect to the question now presented, are confirmed by the history of section 5 as previously in force. In the original Constitution of 1867 section 5 read: "After the election for Judges, to be held as above mentioned, upon the expiration of the term, or in case of the death, resignation, [*611] removal, or other disqualification of any Judge, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the next general election for members of the General Assembly, when a successor shall be elected, whose tenure of office shall be the same, as hereinbefore provided; but if the vacancy shall occur in the City of Baltimore, the time of the election shall be the fourth Wednesday in October following." In 1882 many of the judges elected in 1867 had served their full term of fifteen years.  Instead of appointment of their successors until the 1883 election, the amendment proposed by the Act of 1880, ch. 417, and ratified at the 1881 election provided for an election for judges in 1882 [1867] and "in every fifteenth year thereafter", but retained provision [***10]for appointment upon the expiration of the term of any judge "elected to fill a vacancy".  In the 1881 amendment section 5 read: "After the election for Judges, as hereinbefore provided, there shall be held in this State, in every fifteenth year thereafter, on the Tuesday after the first Monday in November of such year, an election for Judges as herein provided; and in case of death, resignation, removal or disqualification by reason of age or otherwise of any Judge, the Governor shall appoint a person duly qualified to fill said office, who shall hold the same until the next General Election for members of the General Assembly, when a successor shall be elected, whose term of office shall be the same as hereinbefore provided, and upon the expiration of the term of fifteen years for which any Judge may be elected to fill a vacancy, an election for his successor shall take place at the next General Election for members of the General Assembly to occur upon or after the expiration of his said term; and the Governor shall appoint a person duly qualified to hold said office from the expiration of such term of fifteen years until the election and qualification of his successor." In 1897[***11] a few judges, and in 1912 still fewer, were elected at the expiration of successive full terms from 1867. As succession of such full terms came to an end, the difference in operation between the 1881 [*612] amendment and the 1867 provision disappeared.  In 1922 the quadrennial elections amendment reverted to the 1867 provision for appointment at the expiration of any full term.  Art. 17, sec. 5.  Thus the 1944 amendment, as compared with the 1867 provision and the 1881 amendment, shows the same policy of appointment before election and also shows the extension of that policy so as to cover the question in the case at bar.  The policy in the 1867 provision was temporarily narrowed in the 1881 amendment; the 1881 change became extinct in the course of time and was formally abolished in 1922; in 1922 the maximum possible service of an appointed judge was extended to approximately four years.  The 1944 amendment extends the original 1867 policy by establishing a uniform minimum of approximately one year of service of an appointed judge, and also reduces the maximum from four years to three.

   Appellant asserts that before Judge McWilliams's resignation became effective he filed his[***12] certificate of candidacy and thereby created a "contest", which cannot be "frustrated" by Judge McWilliams's resignation. This is a pointless contention.  A candidate for office cannot acquire under the election laws a right contrary to the constitution.  Appellant also asserts that, unless his contentions are approved, a succession of appointments, resignations, appointments and resignations may be prolonged ad infinitum without any election at all -- even by appointing the same person to fill the "vacancy" created by his own resignation. If the last mentioned situation should ever arise, it will then be time to decide whether such an interruption in continuous service constitutes a "vacancy".  We see no reason to assume or expect that by collusion the appointing power would be abused, not to fill but to create vacancies, [**509] and judges would accept appointments, not to hold but to resign office.

   As we find no ambiguity in the words of section 5, it is unnecessary to consider whether, in case of ambiguity, the reports of the Commission on the Judiciary Article of the Constitution, generally known as the Bond Commission, would furnish aids to resolve any such ambiguity. [***13] [*613] Section 5, as proposed and ratified is a verbatim copy of the first part of section 5 in the draft of a bill submitted by the Bond Commission to the Legislative Council on November 30, 1942, pursuant to the Commission's previous reports to Governor O'Conor.  The remainder of section 5 in that draft was omitted in the amendment as proposed and ratified. It may be noted that section 5, as construed in the case at bar, seems to be in accord with the Commission's published recommendations that every vacancy be filled by appointment for not less than one nor more than three years and that all judges be appointed in the first instance and be assured of one year of service by virtue of the appointment. In its Interim Report, dated June 1, 1942 the Commission said: "At present judges are appointed to fill vacancies until the next Gubernatorial election, i. e., for one year after expiration of a fifteen-year term and in other cases for a period ranging from a few days to almost four years.  The commission believes that better results, more satisfactory to the voters, would be obtained by the election of judges at the two year intervals instead of election of the present long[***14] tickets of judges once in four years.  In this way every vacancy would be filled by appointment for not less than one nor more than three years, and at every election the voters would have an opportunity to vote for a sitting judge." In its Final Report, dated October 21, 1942, it also said: "It is recommended that all judges of the Court of Appeals, and of the trial courts in Baltimore City and the counties, be appointed in the first instance by the Governor, and that they be assured of one year of service by virtue of the appointment, and then, after that year, at the time of the next election in the state, either for national or state officers, be required to stand for election by popular vote if they wish to continue."
 
   For the reasons above stated, this court on April 2, 1948, by a per curiam order, affirmed the order of the lower court. 

ZELLER, Guardian v. McGUCKIAN 
No. 120, October Term, 1947
 
Court of Appeals of Maryland
 
190 Md. 298; 58 A.2d 123; 1948 Md. LEXIS 277

 April  1, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, the costs to be paid out of the estate.

CORE TERMS:  testator, life estate, gift, executor, decree, tract, die, guardian ad litem, entire estate, life tenant, disposed, legatee, widow, died, surviving executor, survived, mortgage, ordering, vested, corpus, fundamental principle, assumed jurisdiction, investiture of title, language employed, acres of land, natural life, real estate, acre tract, preceded, substitution

COUNSEL: James C. Morton, Jr., with whom was John G. Rouse, Jr., on the brief, for the appellant.

   George B. Woelfel for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*299] [**123] This appeal is from a decree of the Circuit Court for Anne Arundel County construing the will of Thomas McGuckian, deceased, and ordering the distribution of his estate.

   The will was executed May 30, 1921, when[***3] he was 58 years old.  He died September 9, 1921, and was survived by his wife, Maggie McGuckian, aged 63, and a son, George, a disabled war veteran, aged 31.

   The will, which was probated in the Orphans' Court of Anne Arundel County, leaves all of the real estate [*300] and personal property of the testator to his wife "for and during her natural life." Then follow the two paragraphs which are now in question:

   "Second.  After the death of my wife, I give, bequeath and devise all of said property, not having been previously disposed of by my executors, hereinafter named, to my son, George McGuckian, or in case of his death to his issue, if any.

   "Third.  In the event that my son, George McGuckian, should die without issue I give, bequeath and devise all of the aforesaid property, not having been previously disposed of, to my nephew, George Zeender, absolutely."

   The fourth paragraph appoints Charles F. Lee and Winson G. Gott, of Annapolis, as the executors of the estate, with power, in their discretion, to manage, mortgage, lease, sell, or in any other manner dispose of any of the property.  The estate consisted principally of a valuable tract of 27.43 acres of land situated at[***4] Annapolis, which was subject to two mortgages totalling $9,300.  The testator also left considerable unsecured indebtedness.

   Lee and Gott, executors, subdivided the tract of land as a residential development of the city of Annapolis, and sold a number of lots under authority of the Orphans' Court.  Gott died in 1927.  In 1932 Lee, the surviving executor, sold a lot to the Board of Education of Anne Arundel County, but the board refused to consummate the transaction on the ground that the power of sale conferred by the will upon the executors was exhausted after [**124] they had sold a sufficient amount of land to pay the testator's debts, and therefore they could not any longer convey a marketable title.  Thereupon the testator's widow, her son George and his wife, and George Zeender and his wife petitioned the Circuit Court to assume jurisdiction of the trust created by the will.  The Court assumed jurisdiction and appointed Lee as trustee to administer the trust. On November 29, 1932, the petitioners executed a deed of trust conveying all that was left of the 27.43-acre tract to Lee as trustee.

   [*301] It also appears that McGuckian and his wife owned a tract of 188.25[***5] acres of land, subject to a mortgage for $20,000.  This tract was owned by them as tenants by the entireties, and hence upon McGuckian's death it became the property of his widow, subject to the mortgage. It was believed that the testator was under the impression that this tract was titled in his name alone, and to carry out that idea Mrs. McGuckian in 1923 conveyed the tract to Lee and Gott as trustees under a trust similar to that created by the will. On March 29, 1933, Mrs. McGuckian and Lee, as surviving executor, conveyed to Lee, as trustee, all that remained of the 188.25-acre tract, and the Court assumed jurisdiction of that trust also.  Lee has been acting as trustee ever since, and it appears that the trust funds and investments and the real estate which still remains unsold have an aggregate value of approximately $100,000.

   Mrs. McGuckian died February 26, 1935.  But although she was only the life tenant, it was not until 1946, more than 11 years afterwards, that her son petitioned the Court to order the termination of the trust and distribution of the corpus. George was unmarried and living with his parents at the time his father made his will, but he married afterwards[***6] and now has three children, one of who is over the age of 21.  Accordingly, after George brought the instant suit, the Court appointed J. Henry Zeller guardian ad litem for the two infant children.  Finally, on August 18, 1947, the Court passed a decree terminating the trust and ordering the trustee to distribute the estate.  From that decree this appeal was taken by the guardian ad litem.

   In this case the testator made alternative gifts in remainder.  Where two alternative gifts are preceded by a life estate, the alternative words of the gift are applied to the event of the death of the first legatee occurring before the period of possession or distribution as fixed by the will.  The first legatee surviving that period becomes absolutely and indefeasibly entitled; but if he should die before that period, his previous investiture of [*302] title becomes divested, and those intended to take by the alternative gift become vested with the estate by way of substitution. Reiff v. Strite, 54 Md. 298, 303. We think it is clear from the language of the will that it was the testator's intention that if his son survived the life tenant, he would be entitled absolutely to the[***7] entire estate. In case of his death before the death of his mother, the life tenant, the property would vest in his issue, if any; but in the event that he should die without issue, then the estate would go to Zeender.  In other words, the time of vesting was deferred only until the death of the life tenant.

   It was contended by the guardian ad litem that the will gave the testator's son merely a life estate, and that his three children are entitled to the remainder interest.  It is a fundamental principle in the construction of wills that the intention of the testator should be carried out whenever it can be done without violence to the language employed. There is no question that the primary concern of the testator in this case was to provide for his widow and for his only son, who was almost totally blind as the result of injuries sustained in the First World War.  The testator was heavily in debt, and since his estate consisted almost exclusively of land, which however had great potential value, he left the property in charge of Lee, a real estate broker, and Gott, a lawyer of Annapolis.  The guardian ad litem argued that it could be inferred from that arrangement that[***8] the testator intended his son to have only a life estate. But if this were true, and he should leave no children, the entire estate would go to Zeender, who lived in Connecticut but has since died. It was also suggested that the fact that the son did not make any effort [**125] to terminate the trust until more than 11 years after his mother's death bears out that inference.  We are of the opinion, however, that the entire corpus of the estate vested in the testator's son upon the death of Mrs. McGuckian on February 26, 1935.  The will was prepared by a lawyer, who knew the simple language required for creating a life estate. By the first [*303] paragraph of the will, the testator gave his entire estate to his widow "for and during her natural life." It is logical to believe that if he had intended to give his son only a life estate, he would have said so as he did in the first paragraph.

   For these reasons we will affirm the decree ordering Lee, as trustee, to convey to George McGuckian (1) the corpus of the estate passing under his father's will, and (2) all the property conveyed by Mrs. McGuckian and Lee, as surviving executor, to Lee, as trustee, by deed dated March[***9] 29, 1933.

   Decree affirmed, the costs to be paid out of the estate. 

FEUDALE et al. v. SARLES et al. 
No. 118, October Term, 1947
 
Court of Appeals of Maryland
 
190 Md. 244; 58 A.2d 248; 1948 Md. LEXIS 274

 March  31, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeals from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree reversed and bill dismissed.  Costs to be paid equally, one-third by Feudale, one-third by Petrini and wife, and one-third by Benjamin R. Sarles and Benjamin E. Sarles and their respective wives.

CORE TERMS:  pier, water, wharf, feet, creek, bulkhead, built, charter, navigation, easterly, wardens, front, port, neighbor, decree, riparian, practically, divisional, permission, fronting, regulation, interfere, ordinance, erection, harbor, angles, navigable waters, federal government, northwest corner, line drawn

COUNSEL: John H. Herold, with whom was John H. Hessey on the brief, for the appellant, [***4] Peter A. Feudale.

   Ward B. Coe, with whom were Albert J. Goodman and Carman, Anderson & Barnes on the brief, for the appellants, E. J. Petrini and wife.

   R. Tilghman Brice, III, for the appellees, Benjamin E. Sarles and wife and Benjamin R. Sarles and wife.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*246] [**248] Spa Creek runs, generally, easterly between the City of Annapolis and the village of Eastport.  It is a tidal stream and empties into the Severn River, an arm of the Chesapeake Bay.

   Feudale (plaintiff below) owns two lots fronting on the south side of this creek, one of which was acquired in 1934, and the other, contiguous thereto, was acquired in 1946.  The total frontage on said creek, of the two lots, is ninety-eight feet. Immediately east, and adjacent thereto, Petrini and wife (defendants below) own a lot, fronting fifty feet on said creek, which they acquired in 1946.  Immediately west of Feudale's lots is Washington Street, which is about twenty feet wide.  Immediately west of this street Benjamin R. Sarles and wife own a lot, fronting[***5] sixty-seven and four-tenths feet on said creek, acquired in 1941.  Immediately west of this lot, and adjoining it, is a lot fronting seventy-two and six-tenths feet on Spa Creek, acquired in 1929 by Benjamin E. Sarles and wife.  Immediately adjoining this lot, on the west, is a lot with a total irregular frontage on said creek of one hundred and fifty-one and one-tenth feet, which was acquired November 18, 1946, by Benjamin R. Sarles and [**249] wife and Benjamin E. Sarles and wife (defendants below).  The properties of all of the parties to this suit are located on the south side of Spa Creek.

   Benjamin E. Sarles and Benjamin R. Sarles are father and son, and are engaged in the boat repairing and storing business.  Petrini is engaged in the same business.  The lots of Petrini and Feudale, and the lots acquired by Benjamin R. Sarles in 1941, practically parallel the shore of Spa Creek. The lot acquired by the Sarles on November 18, 1946 (after this case was instituted) extends to the northwest, forming a curve.  In 1929 Benjamin E. Sarles erected bulkheads and a pier, extending out from his property into the waters of the [*247] creek about one hundred and sixty feet. In[***6] 1945 he extended his wharf forty feet and built an extension westerly, at right angles from the end thereof, thirty-eight feet long, and another extension easterly, at right angles with the old wharf, at a point five feet south of the end thereof, for a distance of ninety feet, and by the erection of water breaks along the north and east sides of the whole, made what is practically an inclosed basin wherein boats can be moored or stored, or repaired, as circumstances may dictate.  In 1946 Petrini built a bulkhead in front of his lot, and erected a wharf or pier out into the waters of the creek for a distance, including the bulkhead, of approximately one hundred and sixty feet, and then turned easterly at right angles for about forty feet. These structures, built by Sarles and Petrini, extended into the creek at practically right angles from the shore.

   When Sarles extended his pier easterly, in 1945, Feudale became somewhat concerned.  Sarles had procured a permit from the Annapolis authorties and from the federal authorities to make this extension for a distance of one hundred and five feet easterly, but, at Feudale's suggestion, and to prevent objection by him, he only built this[***7] addition easterly ninety feet. Feudale then made no objection, and Sarles built his extension easterly for ninety feet.

   In 1946 Petrini, after having procured a permit so to do from the federal and City authorities, proceeded to build a bulkhead and pier running from the northwest corner of his lot out into the waters of the creek at practically right angles from the shore line of his lot, one hundred and sixty feet. Petrini, after some work was done on this project, became apprehensive lest the extension out into the creek would extend over a line drawn straight out into the creek from the northwest corner of his lot, and the northeast corner of Feudale's lot.  A survey was made and as a result thereof he removed the pier for two or three feet easterly and built it straight out from that point, so as to be sure that a line extending [*248] out into the stream from the corner of his property and Feudale's property would not be crossed by his improvement.

   Feudale saw all of this work done, and was concerned about it, but made no direct protest to Petrini.  Later he became very much concerned lest further extensions into the creek by Petrini and Sarles would converge and he[***8] would be shut off from access to navigable water. He went to see the Annapolis authorities, and the federal authorities, and the State's Attorney for Anne Arundel County with reference to his rights, but received no definite information.  He then instituted this suit.  A demurrer to his original bill was sustained because there was no evidence that Feudale had made any improvement in the water in front of his lot.  He told the court that he intended to wharf out, but he did not want to start work on the same until he knew exactly what his rights were and what he could legally do.  The court sustained the demurrer, but permitted him to file an amended bill and set out the reason he had not made improvements in the waters of the creek in front of his land.  This was done, answers were filed by the defendants, the case heard, and from the decree passed by the chancellor the case comes here on appeals by the defendants, Petrini and wife, and plaintiff below.

   Under the decree Feudale is entitled to wharf out into the waters of the creek "in the space between a line drawn north 20 degrees 5 minutes east from the northwest corner of his said property, and a line drawn north 18 degrees 45 [***9]minutes east from the northeast corner thereof, as shown on the map hereto attached and made a part [**250] hereof." It enjoins Petrini and wife to "forthwith remove all that part of the bulkhead, wharf and pier recently erected by them in the waters of said Spa Creek, * * * which lies on the west, or northwest side of a line drawn north 18 degrees 45 minutes east from the northwest corner of their said property".  The decree dismissed the amended bill as to the defendants, [*249] Sarles, and decreed that costs be paid equally by Feudale and Petrini and wife.

   The result of this decree is to establish the right in Feudale to wharf out from his property, not in a straight line parallel with the side lines of his property, but obliquely to the northeast.  This results in requiring Petrini to remove a part of his bulkhead and practically all of his pier.

   The locus in quo is within the territorial jurisdiction of the City of Annapolis.  Section 1, McWilliams' Charter and Code of Annapolis, 1935, as amended.  Section 29 thereof provides for appointment of wardens of the port, and sections 31 and 32 of the charter define the powers and duties of the port wardens. Section 31[***10] provides:

   "The wardens, or a majority of them, shall have power to determine upon and regulate all matters relating to the erection or building of wharves in the said port, so far as respects the distance said wharves may be extended into the water, * * * always keeping in view the preservation of the navigation of said port by not permitting any wharf to be carried out in such manner as to render the navigation of the same too close and confined, * * *."

   Section 32 provides:

   "No person holding lands on the waters of said port, nor any person whatever, shall build any wharf, or carry out any earth or other material for that purpose without license from said wardens, or a majority of them, to do the same; * * *. 

   Violation of this section "shall be subject to such fine as the Mayor, Counselor and Aldermen may ordain."
 
   Section 33 provides:

   "In all differences that shall arise between any citizen of Annapolis and the said wardens touching the discharge of their duty, an appeal shall lie to the Mayor, Counselor and Aldermen."

   Article I, Section 6(8) of the Baltimore City Charter, 1938, provides that the Mayor and City Council of Baltmore shall have full power and authority:

   [*250] [***11] "To provide for the preservation of the navigation of the Patapsco River and tributaries, including the establishment of lines throughout the entire length of said Patapsco River and tributaries, beyond which lines no piers, * * * or extensions of any character may be built, erected, constructed, made or extended; * * * to erect and maintain and to authorize the erection and maintenance of, and to make such regulations as it may deem proper, respecting wharves, bulkheads, piers, and piling, and the keeping of the same in repair, so as to prevent injury to navigation or health; * * * to provide for the appointment of such officers and employees as may be necessary to excute the aforegoing powers and to impose fines or penalties for a breach of any ordinance passed in conformity herewith."

   Article II, Sec. 558 of said Baltimore City Charter provides:

   "No alteration, extension or removal of wharves, piers, bulkheads or pilings shall be made in the Patapsco River or tributaries without consent of the harbor engineer."

   Sections 343 and 351 of Public Local Laws; 1888, Article 4, gave the Mayor and City Council of Baltimore practically the same power it now possesses. Section 343 provided: [***12]

   "The mayor and city council shall have full power to provide for the preservation of the navigation of the Patapsco River and tributaries, including the establishment of lines outside the limits of the city and within four miles thereof, beyond which no pier, bulkhead or wharf shall be built or extended, and for cleaning and deepening the harbor and docks, and for regulating the stationing, anchoring and mooring of vessels."

   Section 351:

   "No wharf shall be run out, made, altered, enlarged or extended so as to divert the course of the channel, obstruct the harbor or basin, or to the injury of the same; and no person shall make, alter or extend any wharf without laying before the mayor [**251] and city council, or some person authorized by them, a plan of said wharf, [*251] and obtaining the consent of the mayor and city council, if in session, or of the joint standing committee of the city council on harbor and the mayor, when said city council is not in session, if duly authorized so to act by the mayor and city council to carry the same into effect."

   The similarity of the sections of the present code referred to, and the sections of the old code referred to, of Baltimore[***13] City, and section 32 of the Annapolis code, is evident.
 
   Section 47 of Article 54, Code 1939, provides:

   "The proprietor of land bounding on any of the navigable waters of this State shall be entitled to the exclusive right of making improvements into the waters in front of his said land; such improvements and other accretions as above provided for shall pass to the successive owners of the land to which they are attached, as incident to their respective estates.  But no such improvements shall be so made as to interfere with the navigation of the stream of water into which the said improvement is made."

   This Act was originally passed in 1862, Chapter 129, section 38.

   The history of legislation, and the decisions of this court under the various acts of the Legislature, are very fully given in Mutual Chemical Co. v. Mayor and City Council, D. C., 33 F. Supp. 881, and in Mayor and City Council v. Canton Co., 186 Md. 618, 47 A. 2d 775, 778, and will not be repeated here.  In the latter case Judge Markell, speaking for this court, said:

   "The delegation of power of governmental regulation for these two purposes ((a) to preserve navigation and (b) to ration space for 'improvements') [***14]was complete in the original charter of 1796, including the former 'powers and authorities' of the port wardens under the Act of 1783.  * * *.  The rights of riparian owners subject to such governmental regulation, were reaffirmed in the Act of 1784.  * * *.  Under the Act of 1862 such rights are substantially the same as under the Act of 1745, but are further protected by the provisions of section [*252] 48, art. 54, Code of 1939: 'No patent hereafter issued out of the land office shall impair or affect the rights of riparian proprietors, as explained and declared in the two preceding sections; and no patent shall hereafter issue for land covered by navigable waters.' We shall assume, without deciding, that section 48 could be repealed, and also section 47 to the extent that improvements have not actually been made.

   "Under the Act of 1745 -- or 1862 -- 'the riparian owner had no vested title to the land covered by water immediately in front of his property, nor to the improvements built out of the water, until the improvements had been actually completed.  Giraud's Lessee v. Hughes, 1 Gill & J. 249.' Brady v. Baltimore, 130 Md. 506, 510, 101 A. 142, 143; Cahill v. [***15]  Mayor and City Council of Baltimore, supra, 173 Md. [450], 456, 196 A. 305. The required consent of the city agencies was given by the establishment of limiting lines.  The power to establish such a line includes power to change it.  The right to build piers to a particular pierhead line, conferred by an ordinance of 1880, 'was a privilege subject to revocation at any time before it was acted upon, and the ordinance of 1881, which repealed all ordinances inconsistent therewith (and established a new line), was a revocation of this privilege.' Classen v. Chesapeake Guano Co., 81 Md. 258, 267, 31 A. 808, 809; Cahill v. Mayor and City Council of Baltimore, * * * 173 Md. [450], 456, 457, 196 A. 305.

   "Subject to such governmental regulation by the city (and by the federal government), the riparian owner's rights to make improvements in the water was 'a franchise; a vested right, peculiar in its nature; a quasi property, of which (he) could not lawfully be deprived, without (his) consent.' Casey's Lessee v. Inloes, 1 Gill. 430, 501, 39 Am. Dec. 658; Baltimore & O. R. Co. v. Chase, 43 Md. 23; Horner v. Pleasants, 66 Md. 475, 477, 7 A. 691; Brady v. Baltimore [***16], 130 Md. 506, 510, 511, 101 A. 142. Riparian owners had the right 'to extend or improve out (their) lot to the limit prescribed by the city authorities, [*253] and according to the well settled law of this State, they could not be deprived of this right without their consent.' (Italics supplied.) [**252] Mayor, etc., of Baltimore v. St. Agnes Hospital, 48 Md. 419, 421. 'These rights, thus secured, (by the Act of 1862) are valuable; they are property, according to repeated decisions; and of which the owner cannot be deprived without his consent or by other competent legal means.  Dugan v. Mayor, etc. of Baltimore, 5 Gill & J. 357, 367; Casey's Lessee v. Inloes, 1 Gill 430, 501, 39 Am. Dec. 658; Baltimore & O. R. Co. v. Chase, 43 Md. 23; Buccleugh v. Met. Board of Works, 5 H. L. 418. And whenever those rights are invaded, or their enjoyment obstructed, the owner is entitled to his remedy for redress, as in other cases of the violation of the rights of property'.  Garitee v. Mayor, etc., of Baltimore, 53 Md. 422, 433; Culley v. Hollis, 180 Md. 372, 374, 375, 25 A. 2d 196. When riparian property is taken by the city, compensation must include the[***17] value of these rights.  Marchant v. Baltimore, 146 Md. 513, 126 A. 884. In Tome Institute v. Crothers, 87 Md. 569, 40 A. 261, 266, it was held that a riparian owner could sell his 'water privilege' under the Act of 1824, ch. 33, and retain his land.  The Act of 1824 gave to riparian owners at Port Deposit 'a right of the same description' as the right to improve under the Act of 1745."

   In Mayor and City Council v. Crown Cork & Seal Co., 4 Cir., 122 F. 2d 385, 392, the decision of the District Court in Mutual Chemical Co. v. Mayor and City Council, 33 F. Supp. 881 was reviewed.  In that case the court dealt with apportionment of water frontage on the Patapsco River, situate on a concave curve between Colgate Creek on the north and Bear Creek on the south, in the harbor of the City of Baltimore.  All of the owners of land abutting on this curve were made parties.  The city owned the northernmost tract, on which it intended to build an airport, and adjoining thereto was the land of the Mutual Chemical Company.  The Chemical Company wharfed out from its lateral lines and built a bulk-head and a pier. Its westernmost line coincided with [*254] the easternmost line[***18] of the city property.  The city authorities agreed with the property owners on a given line, and relying thereon, some of the property owners wharfed out from their respective properties.  Thereafter the city repudiated the agreement and established a different line.  The appellate court held that the city was estopped from changing the original line, except as to "owners who have made no improvements in the water with which the location of the airport will interfere. We think, therefore, that the settlement of the divisional lines between the properties must await the action of the City, and that resort to the courts is not permissible unless the City refuses to act, or acts in such a manner as amounts to an abuse of power."

   We think that the power to regulate the building of piers in that part of Spa Creek (a navigable stream) within the territorial limits of Annapolis, is similar to the powers which the City of Baltimore exercised in regard to the building of piers in the basin of the Patapsco River, which it possessed under the Public Local Laws of 1888, and now exercises under its present charter.

   In Mayor and City Council v. Crown Cork & Seal Co., supra, it was specifically[***19] held that an owner of property fronting on the Patapsco River, in Baltimore City, must first apply to the city for permission to wharf out -- or at least for settlement of divisional lines for that purpose -- before he can resort to the courts, and the courts will only review the matter upon a showing of abuse of power by the city.

   In Cahill v. Mayor and City Council of Baltimore, 173 Md. at pages 459, 460, 196 A. at page 309, Chief Judge Bond said:

   "The full legislative power of the state, delegated as it is, has been given expression in the ordinance fixing the restriction of which the petition complains, and those ordinances could not be amended by the judicial power, however a court might be persuaded that amendment [*255] should be made. Cases of misuse of power, or unconstitutional exclusion of single owners from privileges generally accorded, may possibly arise, and be found remediable by judicial action; but the present petition does not, in the opinion of the court, present such a case."

   The erection of the piers into Spa Creek by Petrini and the Sarles does Feudale [**253] very little damage, if any.  The situation existing at the time this suit was instituted[***20] does not show that Feudale was in any immediate danger of suffering any harm in regard to his riparian rights.  It required no immediate court action to preserve his rights.  There was no reason why he should not have applied to the port wardens of Annapolis, as well as to the federal government, for permission to wharf out.  These regulations of the Annapolis charter, as we have said, are similar to the regulations of the Baltimore charter, and the court will not take action in a case such as this, unless the municipal authorities to whom the matter is committed act arbitrarily or otherwise abuse their power.  Feudale did not apply to the municipal authorities for permission to wharf out.  He acquiesced in everything that Petrini did.  To require Petrini, in these circumstances, to tear down his pier, as the decree requires him to do, would seem to be unjust, even though Petrini acted before he was advised as to his rights.

   We are of opinion that under the circumstances of this case the lower court should not have undertaken to establish new divisional lines between the parties.

   If it appears in the future that either the Sarles or Petrini attempt to extend their respective piers[***21] farther out into the waters of the Creek, to the material detriment of Feudale, the court's jurisdiction may be invoked.  If the present condition and location of the two piers in question, or either of them, is changed in the future, in such a way as to materially interfere with the rights of Feudale, even if the Annapolis officials should approve the change, there can be no question that Feudale would have a right to apply to the courts for relief.

   [*256] With this view of the case, it is unnecessary for us to pass upon the other questions presented at the agrument or in the briefs.

   Decree reversed and bill dismissed.  Costs to be paid equally, one-third by Feudale, one-third by Petrini and wife, and one-third by Benjamin R. Sarles and Benjamin E. Sarles and their respective wives. 

JOHN E. McAULIFFE, et al. v. JOHN J. B. LERCH, et al. 
No. 81, October Term, 1947
 
Court of Appeals of Maryland
 
189 Md. 672; 57 A.2d 329; 1948 Md. LEXIS 241

 February  18, 1948, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Judgment reversed with costs.  Judgment entered for the appellants against the appellees for costs.

CORE TERMS:  farm, deed, roadway, constructive possession, actual possession, action of trespass, paper title, trespass, clausum, fregit, quare, disputed, tree, ran, public highway, chain of title, conveyance, ejectment, surveyor, plat, claim of title, property line, whole tract, oak tree, cultivation, successive, occupancy, remainder, presumed, surveyed

COUNSEL: Charles W. Main for the appellants.

   Marvin I. Anderson, with whom was C. Osbourne Duvall on the brief, for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Grason, Henderson, and Markell, JJ. [***3] Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*673] [**329] This case was brought by the appellees in the Circuit Court for Anne Arundel County to prevent the appellants from using an ancient road, claimed to run over the property of appellees.  As originally filed, it was a suit in ejectment for a strip of land over which the claimed road was located.  The appellants pleaded not guilty, and on this issue the appellees took their testimony.  Then the appellants asked and obtained leave to withdraw the not guilty plea and file a disclaimer.  Thereupon the appellees amended their declaration by leave of court, and filed an amended declaration in trespass q. c. f. To this the appellants filed pleas of general issue and that the place where the alleged trespass was committed was a public highway. The case then continued with the agreement that the testimony already taken [*674]should be considered as if taken under the amended pleadings.

    [**330] We thus have a case where two questions arise.  First, did the appellants use a portion of appellees' land as a roadway and second, if they did, was such user justified by the fact that such[***4] land had become, by prescription, a public highway. There was no contention that such a highway, if it existed, was ever accepted or maintained by the county.  The evidence offered tended to show the use of the claimed roadway for many years as a cut-off between two county roads, known as the Governor's Bridge Road and the Queen Anne Road.  The appellees attempted to minimize this use, and contended that, such as it was, it was merely by permission, and could not ripen into a prescriptive right.

   The case was tried before the court without a jury.  The trial judge, accompanied by counsel, visited the property, and wrote a lengthy and careful opinion in which he concluded that the appellants had not established their right to use the road.  As a result, he found for the appellees, and entered a judgment against the appellants for one cent damages and costs.  It is from this judgment that the appeal is taken.

   Notwithstanding the care with which the court considered the second question involved, namely, whether a public highway existed, he dismissed with scant attention the first question which involved the right of the appellees to bring the action.  He said that the plaintiffs had[***5] established their title and were in actual possession of the land through which the so-called road ran. He also said that he did not understand that there was any dispute as to the location of the boundary line between the properties of the parties.  But the primary contention of the appellants here is that the appellees did not prove their title, and made no effort to prove possession.  We find nothing in the record to show any concession by the appellants on the question of the appellees' title or possession.  On the contrary, one of the appellants, Mrs. McAuliffe, in her testimony, claimed that her land ran to [*675] the center of the road.  There was no issue in the case of title by the appellants, and this statement is cited only to show that the appellees' title was not admitted. We must, therefore, examine the evidence to see if the appellees have established their right to bring the action.  They must succeed, if at all, on the strength of their own case on this point, in the absence of any admission by the other side.  Norwood v. Shipley, 1 Har. & J. 295; Parker v. Wallis, 60 Md. 15, 45 Am. Rep. 703.

   It is, of course, well settled, that a plaintiff in an action[***6] of trespass q. c. f. must prove possession.  The gist of the action is the injury to the possession of the plaintiff.  The holder of a perfect paper title who is not in possession cannot maintain trespass. His remedy is in ejectment. If, however, the plaintiff has a paper title to the whole tract and is in actual possession of part of it, his constructive possession of the remainder is presumed. Poe on Pleading, Tiffany's Ed., paragraphs 242-246.  In the case before us there is no evidence of actual possession of the alleged roadway by cultivation or fencing or other occupancy. The land used as a road ran along the edge of a field, and in some places through woods.  While one witness testified there was a wire fence at places attached to the trees, he did not locate this fence as a boundary, or show whether it enclosed the roadway. The most reasonable inference from his testimony is that it did not contain or enclose the disputed land.  The only possession attempted to be shown, therefore, is that which might be inferred from a legal title to the farm including the roadway, and possession of a part of this farm by appellees.
 
   The appellees proved their claim of title to[***7] their farm. They purchased it in 1938 and they showed successive conveyances from 1877 to 1938, including the one to them.  But, on paper, these conveyances did not show the location of the disputed road, or whether it was included in the land to which appellees had title and constructive possession. To supply this deficiency, resort was had to a plat purporting on its face to have been [*676] made by J. R. McCrone, Jr.  A surveyor named Latham was called to testify to this plat, and from some of his testimony we may conclude that he made the survey which formed its basis.  The plat states it is of a physical [**331] survey showing the relationship of the road in use to established property lines on the Lerch farm. It shows a line running from the Governor's Bridge Road to the Queen Anne Road.  This is stated to be the property line. It also shows the location of the road in question to the east of this line which would put it within the appellees' property if the line is correct.  But there is no attempt to show a complete survey of the appellees' farm, and when Mr. Latham was asked who gave him the property line, he said he used it "from the evidence of the deed and [***8]from the evidence of the subdivision." The subdivision was one made by the predecessor in title of the appellants.  When he was asked to identify the deed, he said it was one "that mentioned the oak tree" and stated he had not read it.  A red oak tree is mentioned in the deed of the appellees, but this is not on the line claimed to represent the boundary, and is obviously not the tree referred to by the surveyor. There is a black oak tree mentioned in the deed of a property adjacent on the west.  This tree is on or near the line.  This deed also calls to the road in question but it is not in appellee's chain of title. It appears, therefore, that the line relied on by appellees to establish the boundary of their property was not obtained from their deeds or their chain of title, but was surveyed from descriptions in deeds of other properties, and the surveyor does not seem to have read even these deeds.

   We do not think the boundaries of a farm can be located by running a single line in this manner.  A complete survey of appellees' farm from their own deed would seem to be the logical method of proving the location of their western line.  Why this was not done does not appear from[***9] the record, but in its absence and in the absence of proof of actual possession the appellees have not proved that it was their close that the appellants [*677] broke, if they did break a close.  We cannot assume what the appellees might have shown.  It is the basis of their right to come into court that their possession is disturbed. If they do not show either actual or constructive possession, they have no claim against anyone for interferring with what they have not shown to exist.

   Because of this failure of proof, there can be no recovery in this case.

   Judgment reversed with costs.  Judgment entered for the appellants against the appellees for costs. 

F. CONRAD STOLL, et ux. v. JOSEPH W. ALTON, Sheriff, et al. 
No. 37, October Term, 1947
 
Court of Appeals of Maryland
 
189 Md. 341; 55 A.2d 888; 1947 Md. LEXIS 357

 December  10, 1947, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; McWilliams, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  assigned, assignee, bona fide, equitable interest, judgment rendered, execution issued, dissolved, demurrer, decree, meritorious defense, equitably entitled, cause of action, judgment debtor, body corporate, certified copy, fieri facias, note sued, mala fide, law case, questioning, instituted, restrained, chancellor, appearance, appointed, presumes, enjoin, owe

COUNSEL: Eugene P. Childs, with whom was Noah A. Hillman on the brief, for the appellants.

   Court declined to hear argument for appellees, but A. Bowie Duckett, Jr., Mathias Evans and Max R. Israelson appeared on the brief for the appellees.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Grason, Henderson, and Markell, JJ.  Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*342] [**888] On November 22, 1933, the Commonwealth Bank of Baltimore, a body corporate, instituted suit against F. Conrad Stoll and Mazie Smith Stoll, his wife, in the Circuit Court for Anne Arundel County.  They were duly summoned and appeared by attorney.  A demurrer was entered to pleas filed by them, which was overruled, and on January 15, 1936, the case was tried before the court.  It rendered a verdict against the defendants for $5143.12, with interest from date, and costs, and judgment[***3] was entered thereon.  On June 15, 1939, an order was filed in the case to enter the judgment to the use of the Madison Certificate Corporation.  On January 23, 1947, the attorneys for the plaintiff struck out their appearance, [*343] and Max R. Israelson and Samuel Schenker entered their appearance for the plaintiff and directed a fieri facias to issue on the judgment.

    On February 17, 1947, the appellants (the defendants in the law case) filed their amended bill of complaint in this case against Joseph W. Alton, Sheriff of Anne Arundel County, and Max R. Israelson and Samuel Schenker (appellees).  It sets out the facts narrated above, exhibits a certified copy of the docket entries in the law case; alleges the judgment in that case was not indexed until January 23, 1947; that Israelson and Schenker "purportedly" appeared "for Madison Certificate Corporation"; that that corporation was not in existence on June 15, 1939, it having been dissolved by a decree of the Circuit Court No. 2 of Baltimore City on the 13th day of May, 1939; that the execution ordered issued by said attorneys was unlawful and unauthorized; that the assignment of the [**889] judgment to the use of[***4] the Madison Certificate Corporation passed no title in said judgment to it, since no such corporation was in existence at that time; that said defendants have ordered the Sheriff of Anne Arundel County to sell their property under the execution issued aforesaid, which is averred to be unlawful and void.

   The bill prays: (a) That the court assume jurisdiction; (b) that Israelson and Schenker be restrained from proceeding further with the execution on the judgment, or from taking any other method in attempting enforcement of the judgment for any sum of money claimed by them to be due anyone; (c) that the sheriff is disqualified to serve process upon himself and that an elisor be appointed to serve process on the sheriff; (d) that the sheriff be restrained from proceeding further with the execution issued on the judgment in this case; and (e) for general relief.

   This bill was duly sworn to.  Upon the bill, affidavit, and exhibit, the court passed a nisi order for the defendants to show cause why the relief prayed should not be granted.

   [*344] Subsequently the appellants were permitted to file as an exhibit a certified copy of the decree of the Circuit Court[***5] No. 2 of Baltimore City, which dissolved the Madison Certificate Corporation.  That decree appointed William Edgar Byrd "Permanent Receiver of the property, assets and affairs of the said Madison Certificate Corporation, a body corporate, with full power and authority to liquidate, dispose of and convert into cash all the property and assets of said Corporation under this Court's direction".

   The Sheriff answered the bill.  Israelson and Schenker filed a combined demurrer and answer.  On March 29, 1947, the chancellor filed an order sustaining the demurrer, but continued the preliminary restraining order until April 7, 1947, for the purpose of allowing the plaintiffs (appellants) to file appropriate petitions in the original judgment case.  The appeal to this court is from that order.

   The appellants contend that at the time execution issued on the judgment the case in which it was entered had terminated, and that therefore the entry of the judgment to the use of the Madison Certificate Corporation was a nullity.

   The appellants pose the question: "Is it the concern of a judgment debtor when a judgment against him is assigned, or is he precluded from questioning it?" Our answer to[***6] this is the latter.  He has no right in the matter. It can hardly be supposed that if A. holds a judgment against B., in order for A. to assign the same to C. he would have to get B.'s consent.  Such is not the case.
 
   In Logan v. State, use of Nesbitt, 39 Md. 177, Judge Miller quoted from State v. Dorsey, 3 Gill & J. 75:

   "When suit is brought on a private bond for the use of an individual, the individual for whose use it is entered, is not the legal plaintiff; the use is only entered for the protection of his equitable interest, and if he dies pending the suit, his death is not the subject of a plea, nor is there for the purpose of the suit, any necessity [*345] for suggesting his death, but the suit goes on as if he were still living, or the use had never been entered.  The judgment is entered in the name of the nominal or legal plaintiff; and it is nothing to the defendant who may be entitled to the equitable interest." (Italics supplied.)

   See note (b), State v. Dorsey, 3 Gill & J., page 48, side page 75.

   When the Bank assigned its judgment to the Madison Certificate Corporation it continued to be the plaintiff, but the assignee became equitably entitled [***7]to the proceeds of that judgment.  It was prudent to file the assignment in the case in order to protect the assignee's "equitable interest" in the judgment.  There is nothing in the case to show that the Corporation was dissolved at the time the assignment was made to it; and it is an asset in the hands of the receiver.

   That a defendant cannot challenge a judgment rendered against him, which has been assigned, is because of the rule of law that a case will not be reopened which has been fully, fairly, and lawfully litigated.  The judgment is due and it cannot matter [**890] to the defendants to whom it is paid, as long as it is paid to one legally entitled thereto.  There is nothing in the bill to show any equitable reason for interference with the collection of the judgment referred to.

   The appellants cite section 1 of Article 8 of the 1939 Code, which authorizes an assignee to institute suit in his own name on the assigned instrument, and cites Canfield v. McIlwaine, 32 Md. 98, which holds that such an assignment must be bona fide.  This section has no application to this case, for the suit at law here involved was not instituted on an assigned instrument.  Even so[***8] there is no allegation in the bill before us that the assignment was mala fide, and, therefore, the law presumes it to be bona fide. Canfield v. McIlwaine, supra.

   The appellants alleged no facts that entitle them to relief in either a court of law or equity.  They do not aver that the judgment rendered against them is not just, [*346] and that they did now owe the Bank the note sued on. Neither do they allege a meritorious defense to the cause of action upon which the judgment was entered.  Their bill asserts no equity whatever.  The order of the learned chancellor below will be affirmed.

   Order affirmed, with costs. 

FRANCES B. W. DALTON, et al. v. THE REAL ESTATE ANDIMPROVEMENT CO. 
No. 36, October Term, 1947
 
Court of Appeals of Maryland
 
189 Md. 210; 55 A.2d 789; 1947 Md. LEXIS 335

 November  10, 1947, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order reversed and bill dismissed with costs to the appellants.

CORE TERMS:  tenant, fence, specific performance, reply, build, real estate, new road, own land, assent, binding contract, valid contract, rights of way, necessitate, partition, notified, ingress, signing, arrived, dispose, egress, aerial, green, tract, deed, map, dirt road, tracts of land, tract of land, own property, satisfactory

COUNSEL: John Grason Turnbull, with whom was Matthew [***3]  S. Evans on the brief, for the appellants,

   John S. Stanley and D. Heyward Hamilton, Jr., with whom were Marvin I. Anderson and Hershey, Donaldson, Williams & Stanley on the brief, for the appellee.

JUDGES: Marbury, C. J., and Delaplaine, Collins, Henderson, and Markell, JJ. Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*212] [**789] This is a bill for specific performance, filed by the appellee (the real estate holding subsidiary of the Baltimore & Ohio Railroad) [**790] against the appellants in the Circuit Court for Anne Arundel County.  The contract of which performance is asked, is an alleged agreement for the construction of roads and fences. The amended bill of complaint alleges that the appellee and the appellants own contiguous tracts of land which border on Curtis Creek.  Both tracts also border on Pennington Avenue, but where they meet Curtis Creek the appellee's tract is between Pennington Avenue and the land of appellants.  On each tract of land are wooden bungalows or shacks along the shores of the Creek, and on appellants' tract there is a farm house.  The tenants of appellants have been accustomed to use two[***4] dirt roads which run over the land of the appellee in order to get access to Pennington Avenue, the main highway to Baltimore.  Their use of these roads has been based upon a claim of right by virtue of a deed of partition and by prescription.  The appellee denied the right of appellants and their tenants to use these roads, but claimed that if there was any right in appellants by virtue of the deed of partition, then for the same reason and to the same extent, the appellee and its tenants had the right to use part of one of these dirt roads which ran over the land of the appellants.  These conflicting claims resulted in negotiations between the parties and their attorneys.  Finally an agreement was drawn up and approved by the attorneys acting on behalf of their respective clients.  [*213] This agreement was then submitted to the appellants by their attorney.  The appellants declined to execute it, but decided to do something themselves to settle the controversy.  As a result, their attorney wrote a letter to the attorney for the appellee which was as follows:

   "December 11, 1944
 
"Mr. Heyward Hamilton

   "1604 First National Bank Building

   "Baltimore, Maryland
 
"Dear[***5] Heyward:

   "Mr. and Mrs. Dalton and I have again been discussing the proposed agreements with the B. & O. Railroad in connection with the two crossings over your right-of-way and also the situation with respect to the roads.

   "After considerable thought, we have arrived at a solution which I think should be entirely satisfactory to all concerned, and will not necessitate the signing of any agreements:

   "1. No change from the present status with respect to the crossings is contemplated.

   "2. With respect to the road shown in yellow on the aerial map coming in from Hawkins Point Road, and which is now used by Mr. and Mrs. Dalton's tenant, Mr. Fender, Mr. and Mrs. Dalton will as soon as possible give Mr. Fender exit to their present driveway and replace the gate through which Mr. Fender is now passing with a solid fence, thereby effectively closing the use of the road in question.

   "3. Mr. and Mrs. Dalton will project their present fence across the road shown in green on the aerial map down to the edge of the bank and will construct a new road on their property from where the present road shown in green reaches the projected fence, along side of the now existing fence and connect up with [***6]the new road they are making for Mr. Fender.

   "The effect of this will be that Mr. and Mrs. Dalton's tenants will have ingress and egress to the Hawkins [*214] Point Road entirely over the Dalton property and will not be compelled to cross over any of the property owned by the B. & O. Railroad, or the Real Estate and Improvement Company of Baltimore City.  By so doing, I think we effectively dispose of the question as to the rights of either party over the others property.

   "Very truly yours,

   "Robert France."

   To this letter appellee's attorney replied as follows:

   "December 14, 1944
 
"Honorable Robert France,

   "501 Union Trust Building,

   "Charles & Fayette Streets,

   "Baltimore 1, Maryland.
 
"Dear Bob:

   "I have your letter of the 11th inst. concerning the proposed agreements between Mr. and Mrs. Joseph C. Dalton and The Baltimore and Ohio Railroad Company and The Real Estate and Improvement Company.  [**791] As I understand it, Mr. and Mrs. Dalton do not claim any right of way or right of any other kind in or over the tract of land owned by The Real Estate and Improvement Company and lying immediately to the north and west of their property on the east[***7] side of Curtis Creek south of Pennington Avenue.  This being the case, the action suggested in your letter is satisfactory to the two Companies; and I agree with you that it should effectively dispose of the questions that have arisen so far as the use of the various roads in concerned.

   "You told me that Mr. Dalton expects to begin to build the new road at once and that he estimates that both the road and extension of the fence can be completed by the first of next year.  At all events, I suppose that the work should be finished not later than the end of next February and, in order to accommodate the Fenders and the other tenants of Mr. and Mrs. Dalton in the meantime, I assure you that The Real Estate and Improvement Company is willing to permit these tenants [*215] to continue to use the roads outlined in green and yellow on the aerial map which is attached to the proposed agreement I sent you.  I understand, however, that the parties agree that until the road is built and the fence completed, the use of these roads will be entirely permissive, as it has been in the past.

   "Trusting that you will find the above satisfactory and with my best wishes, I am

   "Sincerely yours, [***8]

   (Signed) D. Heyward Hamilton
 
"DHH:JCK

   "P.S.  Will you be good enough to advise me when the new road is entirely completed?

   "D.H.H."

   No reply was received by Mr. Hamilton to his letter.  He communicated with Mr. France at various times to find out what was being done, and was informed that the weather in December, January and February had prevented any action. Finally, after the end of February, Mr. France advised Mr. Hamilton that the appellants had changed their minds, and were not going to do what he stated they would, in his letter.  Thereupon, the original bill of complaint was filed.  It was subsequently amended, and the appellants demurred to the amended bill.  The Chancellor overruled the demurrer, whereupon an appeal was taken here.

   The appellants contend that there is no contract, that there was no consideration for the letter of December 11th, that it lacked mutuality, and that the amended bill does not disclose a cause of action warranting a decree for specific performance. The appellee takes exactly the opposite position on each of these questions, and earnestly contends that there was a meeting of minds between the parties, that there was a compromise settlement[***9] of a controversy which should be enforced by the court, and that the element of mutuality existed because the construction of the fences would result in the relinquishment by the appellee of its right over the [*216] property of the appellants.  The Chancellor agreed with the contentions of the appellee.

   There can be and is no contention that a valid contract cannot be made by letters.  If one party makes an offer in a letter and that offer is certain and definite, and the other party replies accepting that offer on the terms in which it is made, a valid contract ensues.  Buffalo Pressed Steel Company v. Kirwan, 138 Md. 60, 113 A. 628. Nor does there seem to us to be any question, on the face of the bill, that the attorney for appellants was authorized to write the letter of December 11th by his clients.  In this respect, the case is different on the facts from the recent case of Kaufmann v. Adalman, 186 Md. 641, 47 A. 2d 755, and Brown v. Hogan, 138 Md. 257, 113 A. 756. But the preliminary question is whether the letter of December 11th constituted an offer which could be made the basis of an acceptance, and thereby, when answered, could create a binding contract. [***10] We are unable to find that it is such an offer and, therefore, we reach a different conclusion on the demurrer than that of the learned Chancellor.

   The parties had before them an agreement which had been prepared with the end in view of settling all claims and controversies between them.  That agreement, the terms of which were set out in the bill of complaint, provided that the appellants [**792] agreed they had no legal right to use Dirt Road No. 1, and in consideration of such agreement the appellee granted them permission to use that road on certain conditions and subject to revocation.  The letter of December 11th states that the appellants and their counsel have arrived at a solution which will not "necessitate the signing of any agreement." The solution proposed was something to be done entirely by the appellants.  They were going to give their tenants an exit to a driveway, which they had on their property, and were going to build a solid fence across the road which such tenants were using so that they could not drive over appellee's property.  They were also going to project a fence already in existence across the other [*217] dirt road, which their tenants[***11] were using, and were going to construct a new road on their own property so that all their tenants would have ingress and egress to the Hawkins Point Road (which is Pennington Avenue) entirely over their own property, and would not be compelled to cross any of the appellee's property.  The closing sentence of Mr. France's letter reads "By so doing, I think we effectively dispose of the question as to the rights of either party over the others property." This letter did not contemplate that any action should be taken by the appellee, nor that any assent should be given to the action which the appellants proposed to take.  They were going to build a fence on their own land, and build roads on their own land, so that their tenants could go in and out without using the disputed rights of way. They could do all of this without the consent of the appellee, with the possible exception of the construction of the fence which would prevent the appellee from using the roads on appellant's property.  However, it appears from the record that this contention was only an alternative one made by the appellee in case the right of the appellant to use the road should be established under the deed of[***12] partition. In other words, the appellants intended to act decisively on their own behalf without any agreement or assent by the appellee, and so notified the latter.  The effect of doing what they said they were going to do would probably be to give up any rights they might have had to cross appellee's property, but they did not specifically agree to such waiver, either at the time of writing the letter or in the future.  And they did not ask the appellee to give up any right on its part.  The letter was a simple notification of an intention to take some action which they felt would end any controversy between the parties.  Why they did not take this action is not material in our view of the matter.  It may have been because the appellee, in its reply, giving an assent which was not asked for, coupled it with an understanding that the appellants were by writing the letter of December 11th giving up their claims over the [*218] land of appellee.  But whether this was the reason or not, all that we have as a result of the interchange of the letters and the subsequent action of the appellants, is that the latter notified the appellee of something they were going to do, and then[***13] did not do it.  No assent, as we have stated, was asked.  There was no consideration given or required for the statement of their intentions, and the letter cannot be made the basis for an acceptance which would constitute a binding contract.

   The appellants also contend that by reason of some of the statements in the reply of December 14th, the minds of the parties did not meet in any event.  In our view of the matter it is not necessary for us to consider this contention, because, as we have stated, we do not consider that the letter of December 11th was in any sense an offer.  Since there was no offer there could be no acceptance, either absolute or conditional, and there was no contract.  As no contract existed between the parties there can be no decree for specific performance, and the bill will have to be dismissed.

   Order reversed and bill dismissed with costs to the appellants. 

BENJAMIN A. KING v. OCIE COMPTON 
No. 33, October Term, 1946
 
Court of Appeals of Maryland
 
187 Md. 363; 50 A.2d 131; 1946 Md. LEXIS 285

 December  12, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; McWilliams, J.

DISPOSITION: Judgment reversed, with costs.

CORE TERMS:  platform, ramp, repair, landlord, porch, loose, tenant, promised, rented, apartment, entrance, stepped, pulling, unknown, prayer, hidden, wooden, block, broke, notice, legally insufficient, contractual duty, second floor, cinder block, underneath, undisputed, vegetable, slipping, demurrer, spoke

COUNSEL: Eugene P. Childs appeared on the brief for the appellant.

   George B. Woelfel appeared on the brief for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*364] [**131] This is an appeal from a judgment of $450 in favor of the appellee (plaintiff) in the Circuit Court for Anne Arundel County for personal injuries sustained as a result of a fall at the entrance to premises rented by the [*365] appellant to the appellee's husband.  The case was tried before the court and a jury.  The chief question presented is whether the court erred in refusing the appellant's prayer for a directed verdict (on which the court reserved decision) and in denying the appellant's motion for judgment [***3] n. o. v., on the ground of a failure to establish primary negligence.

   The premises in question were rented to the appellee's husband, Donald Compton, on or about January 1, 1943, for $15 per month, and occupied by Compton, his wife, and three children and his sister-in-law.  Apparently there is, or was, a fruit stand on the ground floor in the front of the building.  The only entrance to the demised premises, comprising the whole second floor, is at the rear of the building, where the ground rises and there is a ramp alongside the rear wall, leading to an open wooden platform that gives access to the entrance floor.  This platform is about three feet from the ground.  It appears that this second floor was at one time used as a vegetable loft.  The ramp and platform were installed so that vegetables could be moved to and from the loft by wheelbarrow.  On December 26, 1945, while leaving the premises, the appellee fell from the ramp and broke her leg.

   Donald Compton testified that at the time he rented the premises from the appellant, nothing was said by either party about repairs. On September 1, 1945, he asked King about repairing the "porch" and "showed him where [it was] [***4]pulling loose from the house." King said he would "bring some concrete block down and block it up," that "it would be all right [to use] until he got it fixed." King did not repair the porch until some time after the accident. The place where his wife fell was "right on the step where you step off the porch, the step gave way from underneath and she went down." The platform did not fall away from the house.  There is just one step from the platform down to the ramp, which is "slanting from the porch to the ground and it is on a big block." He did not see his wife fall; he was inside the premises at the time.

   [*366] Ocie Compton testified that the accident happened when she "stepped off of the step and it just broke and threw me out [**132] in the yard." The step "looked like it rotted down." The stringer underneath broke loose and let the ramp down.  The platform did not break, it was the ramp from the platform to the ground that gave way.  The platform and ramp were wet but not covered with ice, although the ground was "icy." She knew that the platform was loose from the house but "the step I thought was all right." She "stepped off the platform down on the ramp when[***5] something gave way." Her husband and another man carried her up the ramp into the house.  She further testified that she spoke to King on December 1, when he came for the rent.  She told him: "If you don't fix that porch I am afraid it is going to fall and hurt somebody." He said: "I think it will be all right, I will be down in a few days and fix it." She did not call his attention to the ramp.

   The appellant denied ever making any promise to repair the premises.  He admitted, however, that in November, 1945, Compton spoke to him about the platform, and King told him he could not see where it needed any repair work, but that he would furnish Compton with some cinder block, if he (Compton) wanted to renew the understructure; that Compton was a good mechanic and agreed with him that cinder block would be a suitable material; that he would come and get the block; that Mrs. Compton said "some day, somebody is going to break a leg on that platform." He denied that the ramp was broken or out of place after the accident.  His testimony on this point was corroborated by two other witnesses, who attributed the accident to the fact that the ramp was slippery.

   The cause of action in this case[***6] is based upon the theory that a landlord, after notice and a promise on his part to repair, negligently failed to perform his promise.  Edelman v. Monouydas, 186 Md. 479, 47 A. 2d 41; Restatement, Torts, Sec. 357.  For the purpose of the demurrer prayer it must be assumed, although he denies [*367] it, that King promised to repair the platform. But the evidence in the case at bar is undisputed that the injury was not caused by a failure to repair the platform; on the contrary, the injury was caused either by a hidden defect in the ramp, which was unknown to any of the parties, or by slipping on the ramp.

    In the case of Thompson v. Clemens, 96 Md. 196, 53 A. 919, 60 L. R. A. 580, the plaintiff was injured by falling through a porch when the boards at the south end gave way.  The only notice the plaintiff or her husband gave to the landlord was as to the condition of the north end of the porch, where two of the boards were "bulging." It was held that the evidence was legally insufficient to establish negligence on the part of the landlord. In Pinkerton v. Slocomb, 126 Md. 665, 95 A. 965, it was held that the case was improperly submitted to the jury, where it[***7] was shown that the injury was caused by a defect in a step, which defect was unknown to the landlord. On the other hand, in Robinson v. Heil, 128 Md. 645, 98 A. 195, where the condition of steps, which collapsed, was previously called to the attention of the landlord, and there was a promise to repair, the case was allowed to go to the jury.  And in Edelman v. Monouydas, supra, where the injury was caused by the breaking of a windowcord which the landlord had promised to repair, we held that the case was properly submitted to the jury.  Compare Sezzin v. Stark, 187 Md. 241, 49 A. 2d 742, where the landlord, with knowledge of an unsafe condition, permitted the tenant of an apartment to use a ventilator shaft for household purposes in common with other tenants, without warning her of the hidden danger.  These cases clearly illustrate the line of distinction.  Upon the record before us we think there was a complete failure of proof to connect the injury with the failure to repair the platform. None of the witnesses in the case testified that they were aware of any defect in the ramp prior to the accident or that the landlord ever promised to repair it.  It is admitted that[***8] he was under no general contractual duty to repair.

   [*368] If the testimony of the plaintiff and her husband is accepted as true, the injury was caused by a hidden defect in the ramp, [**133] which they thought was "all right" and not by the disclosed defect in the platform "pulling loose from the house."

   Since we are of the opinion that the case should have been withdrawn from the jury, we shall not discuss the points raised by the appellant as to the admissibility of photographs, or the alleged errors in the court's charge to the jury.

   Judgment reversed, with costs. 

LINWOOD L. CLARK v. J. MILLARD TAWES, Comptroller of theState of Maryland 
No. 11, October Term, 1946
 
Court of Appeals of Maryland
 
187 Md. 195; 49 A.2d 463; 1946 Md. LEXIS 267

 October  30, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  pension, appointed, elected, retirement, literal, consecutive, mandamus, appointment, attaining, preceding, proviso, retired, salary, reasonable classification, legislative branch, sit in judgment, pension system, retirement pay, retirement age, active service, per annum, continuance, excepting, repealed, demurrer, election, wording, distort, prevail, invalid

COUNSEL: George B. Woelfel for the appellant.

   The Court declined to hear argument for the appellee; William Curran, Attorney General, Hall Hammond, Deputy Attorney General, and J. Edgar Harvey on the brief, for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*196] [**464] The appellant was appointed an associate judge of the Fifth Judicial Circuit of this State and served as such under appointment from May 20, 1935, to December 20, [*197] 1938.  He was never elected. At the time of his retirement, he was not quite 64 years of age.  He reached the age of 70 on March 21, 1945.  During the period of his service there was in effect Chapter 236 of the Acts of 1904 which provided, among other things, that every judge of the circuit court for any of the counties, attaining the age of 70 years while in office, after having served the 10 preceding consecutive years, and every such judge who had served upon the[***4] bench 15 consecutive years and had reached the age of 70 and every person who had heretofore been elected and had served as judge and was no longer in office and had attained the age of 70 years, or when he should attain said age, should be entitled to a salary of $2,400 per annum. Under this Act Judge Clark would not have been entitled to any salary or pension, or retirement compensation at any time.

   In 1939, by Chapter 751, the Legislature amended the Act of 1904 and granted pensions to judges attaining the age of 60 years while in office, after having served the 20 preceding consecutive years.  Under this Act Judge Clark would not have qualified for a pension. Chapter 390 of the Acts of 1941 provided pensions of $3,000 to judges who had reached the age of 70 years after having been in office 10 years or more and to those attaining the age of 60 years while in office after having served the 20 preceding consecutive years.  The Legislature then added the provision, "If for less than five years, two thousand dollars per annum." It is contended by appellant that under this provision he would have been entitled to a yearly pension of $2,000 upon arriving at 70 years of age. The[***5] wording of this statute is somewhat ambiguous, but it is not necessary for us to construe it because it has been repealed by the Act now in force, Chapter 966 of the Acts of 1943.

   This last Act repeals the whole of Section 48 of Article 26 of the Code, title "Courts," sub-title "Pensions of Judges," and enacts in lieu thereof a new Section 48 which changes the method of giving pensions or retirement pay to judges by restricting it to elected judges [*198] and by calculating the amount at $300 for each year or any part thereof of active service including both that served under appointment, if any, and that served after election. The Act is made applicable to all elected judges already retired from public service.  In Section 2 of the Act there is a proviso that nothing in the Act shall be construed to reduce the amount of any pension being received by any judge on May 31, 1943.  The Act of 1943 does not provide for pensions to appointed judges.  The only exception is the continuance in force of a pension already being received.  Judge Clark does not come within the wording of this exception as he was not receiving any pension on May 31, 1943.  He would not, under any construction[***6] of the previous pension acts have been eligible to receive a pension until March 21, 1945, when, as we have already stated, he reached the age of 70.

   It is contended by the appellant that this was a mistake made by the Legislature which has apparently overlooked the appellant's situation, and that the Legislature in 1945 recognized this fact by passing a bill known as Senate Bill No. 123, which attempted to add a proviso to Section 2 of Chapter 966 of the Acts of 1943 to the effect that nothing contained in it should be construed to deprive any judge appointed prior to May 1, 1943, of the pension provided for by the Act of 1941.  Such pensions were directed by the 1943 proviso to be paid to such former judges from the time when they reached the age of 70 years.  This Act contained an explanatory clause which read, "Whereas, Section 2 of said Act '(Chapter 966 of the Acts of 1943)' relating to certain former judges who would be entitled to receive pensions, unintentionally eliminated a certain class of judges."

   [**465] This bill never became part of the Acts of 1945 as it was vetoed by the Governor.  It is unnecessary for us to consider whether we could determine the legislative[***7] intention of the General Assembly of 1943 by an explanation given by the same Legislature again sitting in 1945, in a proposed bill which never became an Act.  If we could accept the statement in Senate Bill 123, that [*199] the Legislature had not intended to exclude certain appointed judges, including the appellant, from the benefit of pensions, we would also have to accept the statement contained in the bill that it did exclude them.  We do not, however, have to depend upon this legislative construction because the Act of 1943 itself very clearly does exclude them by repealing all of the provisions of the Act of 1941 and only excepting from the repeal those pensions being received by any judge on May 31, 1943.  The appellant contends that these words "being received" were meant to apply, not only to judges who were actually receiving pensions, but were intended to cover those who would subsequently receive pensions upon reaching the age of 70.  He lists seven former appointed judges, including himself, of whom five were at that time receiving pensions, although all of them were in active service for less time than he was.  The sixth appointed judge listed has not yet reached [***8]the age of 70.  He alleges the fact that he is the only former judge of pensionable age in the State of Maryland who is denied pension benefits, and states that if the Act of 1943 is construed as it is written, it makes an unreasonable and arbitrary classification between judges, similarly qualified, who have performed similar services.

   We have no authority, in a case where the Legislature has spoken clearly, to distort its words and to usurp the function of the legislative branch of the government by making judicial law.  It is true that real intent must prevail over literal intent.  State v. Petrushansky, 183 Md. 67, 36 A. 2d 533, and cases there cited.  But that rule of construction is adopted only when the literal words of a statute say something that the Legislature could not possibly have meant.  It does not apply when the only bases for a construction other than a literal one are either that the Legislature should not have said what it did, or that it would not have said it, had it been in possession of all the facts.  We cannot assume to say what the Legislature should have said, nor can we say whether it knew the facts or not, nor whether it [*200] would have decided [***9]differently had it known them.  All we can determine in this case is what the Legislature did say.  And there is no ambiguity here.

   The Legislature is the agency of the State which determines what is to be done with the finances of the State, subject, of course, to the provisions of the budget amendment.  The class of statutes usually known as retirement acts which provide pensions for different classes of State employees need not be alike as to all employees.  They are not considered as charitable or benevolent appropriations.  They are founded on supposedly valuable services actually rendered to the State over a period of years and are a part of the inducement which leads competent persons to give up the greater emoluments of private employment for lesser compensation by the State.  This is usually stated to be peculiarly applicable to judges who are generally able to make more in private practice than they can on the bench, and who thereby give up all chance of further increase in their estates for a fixed salary which ends when they reach a certain age.  To encourage competent lawyers to become judges it is the policy of this State, as well as of the Federal Government and of[***10] other jurisdictions, to provide a reduced compensation or a retirement salary or a pension to continue during the life of a retired judge.  A judge appointed under our constitutional provision must anticipate that he will become a candidate at an election to he held within a short period of time.  If he is advanced in age, he may desire to end his years of devotion to the law with the honor of sitting upon the bench for a brief period without attempting to be elected. In the last class of cases there would, of course, be no reason for a pension. In the first class of cases, the appointed judge would be entitled to a pension if he succeeded in being elected, but if he does not command sufficient prestige among the people for them to desire to continue his service, [**466] it seems fairly obvious that the State should not continue to support him.  The present judicial pension system is intended to take care only of [*201] those judges who have been selected by the people as fit to sit in judgment. This is a reasonable classification which the Legislature has an entire right to make.  It is not for us to say whether it is the best classification or not.  It is a matter within[***11] the discretion of the Legislature which it can exercise without judicial hindrance.

   The exception in the Act of 1943, intended to retain pensions to people who have become entitled to them under previous laws, is not rendered invalid or discriminatory because it does not take care of the appellant and the other former judge who, however, has not yet reached the pension age.  The Legislature might have reasonably concluded that they had a number of years left for activity in the practice of the law, and would not need a pension when they reached the retirement age. Whether that was the cause of the legislative failure to include them in the exception, whether there was some other reason, or whether the Legislature did not know about them, is again not for us to say. The Legislature was within its power in not excepting them.  It had grounds for making a distinction between them and those judges who were already receiving pensions. It clearly did not except them and there is, therefore, no law under which the appellant can claim that a pension is due him.  If he has a case which appeals to the conscience of the General Assmbly he can take that case to that forum.  We can do nothing[***12] for him on the state of the law as it now exists.

   This case was instituted by way of a petition for mandamus filed against the Comptroller of the State, asking that the latter be required to pay appellant $2,000 a year, accounting from March 21, 1945.  The Comptroller demurred, and the lower court sustained the demurrer and dismissed the petition.  As we find no error in this ruling, it will be affirmed.

   Order affirmed, with costs. 

OWEN P. W. OWINGS v. MARIANNA CURRIER, et al. 
No. 150, October Term, 1945
 
Court of Appeals of Maryland
 
186 Md. 590; 47 A.2d 743; 1946 Md. LEXIS 236

 June  13, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, Jr., C. J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  gift, husband and wife, deed, marriage, dominance, daughters, dominant party, alimony, undue influence, property rights, real estate, confidential, coercion, bargain, invalid, void, equitable, speaking, cast, confidential relationship, separation agreement, deceased wife, persuasion, married, dollar, decree, died, antenuptial contract, fiduciary relation, mental capacity

COUNSEL: George B. Woelfel for the appellant.

   Eugene P. Childs for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*591] [**743] The bill of complaint in this case was filed by the appellant against two daughters of his deceased wife by her first marriage, for the purpose of having declared null and void two separation agreements which he had made with his wife after marriage, and of having established his statutory right as surviving spouse in certain real estate conveyed to the defendants[***3] by his wife about six months before her death.  The defendants set up the agreements as a bar to any right appellant might have in [**744]the property left them by their mother.  The issue before the Court was the validity of these agreements.  From a decree dismissing the bill, the appeal was taken here.

   It appears from the record that at the time of the marriage, in 1932, Mrs. Owings owned a forty-five thousand [*592] dollar residence property near Annapolis, and the appellant testified that he was then worth about twenty-thousand dollars in personal property.  On September 21, 1942, the first separation agreement was executed.  The appellant's testimony as to what occurred is that they separated on September 3, 1942.  At the time he was working at the Experimental Station and he gave her practically all the money he made, but they did not seem to get along, and finally one day they decided they were going to see a lawyer.  Mrs. Owings went to see her lawyer.  He came and talked the matter over with both of them.  Mrs. Owings wanted more money than appellant could give her, so the only thing he could do was to leave.  He said he was forced to leave but did not explain[***4] how.  After he left, they apparently saw each fairly frequently, and at times went out to dinner together. Then appellant contracted pneumonia, his wife visited him, and looked after him, and he finally returned to live with her in June, 1943.  He then lived at her home until her death in February 1945.  At the time they became reconciled, they executed a second agreement dated June 3, 1943.

   The first agreement of September 21, 1942, recited that differences had arisen between Owen P. W. Owings and Anna T. Owings, his wife, in consequence of which they had separated and intended for the future to live apart, and desired to enter into an agreement as to their personal and property rights. Appellant covenanted with his wife that she could at all times live separate and apart from him and free from his authority, and he would not molest her in any way; that all property, real, personal and mixed, that she then had or might thereafter acquire, or such property as was held by her subject to his marriage rights, should be her sole and separate property wholly free fom any rights of the appellant during her life or after her death, with full power to her to convey, assign, charge or will[***5] the same as if unmarried, and that the appellant would not, at any time, claim any right in any such property as husband, widower, [*593] heir, next of kin or successor, and that appellant would execute such deeds and papers as might prove necessary or convenient to enable her to deal with her said property as if unmarried.  In consideration of this agreement by the appellant, Mrs. Owings covenanted that she would not molest him, would not incur any debt or obligation on his account, would hold him harmless from any and all liabilities incurred by her, and would not bring any suit of any kind to compel him to pay her support, maintenance or alimony, waiving all her rights thereto.  She further agreed that she would not claim any interest as a wife, widow, heir, next of kin or successor in his property, and that she would execute any necessary papers to permit him to dispose of his property.  The agreement also states that it is fully understood by the parties, that it shall be a full release and discharge of each in the property of the other.  There was another provision that notes outstanding in various banks, amounting in all to $690, should be paid by the parties in equal[***6] amounts, and inasmuch as the appellant had no property subject to attachment or execution, Mrs. Owings retained his furniture and silverware as security for his carrying out this obligation.

   The second agreement recites the first agreement and the fact that the parties had agreed to live together again, and, therefore, it became necessary for them to nullify the other contract insofar as their individual personal rights were concerned, but to confirm the same so far as it related to their individual property rights.  The parties agreed that such property rights should remain as set forth in the first contract and confirmed the latter with the proviso that each party might provide for the other by will, but this provision is stated to be not mandatory but discretionary.  Appellant also agreed that he would pay his wife as long as he was earning the salary he was then receiving, the sum of $25 a week, and would continue to pay her a sum commensurate with his earning capacity, and that neither party would incur [**745] any debt or obligation on account of the other.

   [*594] On August 9, 1944, Mrs. Owings conveyed to the appellees, who, as above stated, were her daughters by[***7] her first husband, the remainder after her own death of her real estate in Anne Arundel County, reserving in herself the power to mortgage, sell or convey the property.  She died without having executed this last power, so that the appellees became vested with title to the property, subject to the curtesy or marital interest of the appellant in case the agreements are invalid, as he claims, or free of such rights of the appellant if the agreements are valid.

   The appellant was asked why he signed the first agreement, and he said because he did not have money to keep the property up.  He had spent the greater part of the money he had when married in the support of his wife and her home during the first 10 years of their marital life.  It was an expensive piece of property, his earning capacity was not great, he was dissatisfied, and he thought the best thing for him to do was to leave; that his wife agreed to it, and said that if he would sign off she would release him from any alimony, so he said all right.  He was advised that he could get an attorney to represent him, but he did not do so.  On the date of the signing of the first agreement he was worth altogether six or seven thousand[***8] dollars. He acknowledged signing and executing the second agreement, and said, that, after the reconciliation, he and his wife got along all right.  His wife excuted a will, about which she told him, which left the real estate in trust for the use of her daughters and for him for a period of five years, at the end of which time the trust should cease and the property should vest in the daughters, subject to an owelty for his benefit for five thousand dollars which was to be a lien upon the property.  She also left him her engagement ring and her automobile.  This will was made on May 4, 1944, while they were living together, and less than one year before her death.  If the subsequent deed to the real estate is valid under the separation agreements, then, of course, the will is inoperative as to the [*595]real estate. However, the appellant renounced this will.  He was requested to sign the deed to the appellees, and he said his explanation of why he did not sign it was because he did not care to sign it.  He had signed some papers and would not sign any more.  But one of the daughters testified that when he was asked to sign it, he said he had no interest in the property and [***9]it was not necessary for him to sign any more papers.  The appellant said he performed his part of the first agreement by paying off the notes.  He felt that he wanted to live under the first agreement, and would rather do that than go back to his wife.  He said he tried to live up to both agreements.  He was not satisfied with the terms of the will, but his wife was ill, and he said that he was satisfied, because he did not want to worry her about it.  That when he waived all his rights in Mrs. Owings' property, she told him he would not have to pay alimony, and he was then much worried about finances and other things.  There was some conflicting testimony produced as to the personal relations between the appellant and wife, and as to his habits and his attitude towards her and towards her daughters and her mother.  This has some bearing on the reasons for the separation, as it appears that the household was not always completely harmonious.

   The bill alleges that the wife conceived the idea to defraud the appellant and in pursuance of such plan, constantly nagged him to such an extent that she forced him to leave her home under the pretext that she would not ask him for alimony or[***10] support and that all he would have to do would be to get out and go to her lawyer's office and sign the papers.  And that having gotten the agreement signed, the wife carried out the idea of willfully defrauding her husband by executing the deed to her children.  And that the bequest in the will was made for the purpose of pacifying and silencing her husband.  But the testimony of appellant falls short of proving these allegations.  The evidence produced by him, viewing it in the most favorable light, is that, due to his wife's nagging [*596] about money, it was thought best by both of them that they separate.  He was willing to give up his rights in her [**746] property if she gave up her rights in his and if he did not have to give her money for her support.  There does not seem to have been any fraud or force or undue persuasion exercised by the wife, and the settlement agreements were both freely entered into by each of the parties.

   Appellant also contends, apart from the question of actual fraud, that a confidential relationship exists between husband and wife, and that the wife, who in this case was the dominant party, by her actions forced him to leave her on account[***11] of his fear of having to pay alimony, which he claims he would not have had to pay under the circumstances.  As a result he entered into an agreement in which he gave up his right to a $45,000 property, while his wife only gave up her rights in his property, which was very much less valuable. He asks the Court to void the agreements on the ground that they are unfair and inequitable.

   In Restatement of the Law, Contracts, paragraph 497, it is said "Where one party is under the domination of another, or by virtue of the relation between them is justified in assuming that the other party will not act in a manner inconsistent with his welfare, a transaction induced by unfair persuasion of the latter, is induced by undue influence and is voidable." In Comment A on this section is found the following statement, "The relationships that ordinarily fall within the rule are those of parent and child, guardian and ward, husband and wife, physician and patient, attorney and client, clergyman and parishioner. In each of these cases, however, it is a question of fact whether the relationship in a particular case is such as to give one party dominance over the other, or put him in a position[***12] where words of persuasion have undue weight." In paragraph 584 it is stated, "* * * a bargain between persons who are married * * * * made after separation or in contemplation of an immediate separation which takes place as contemplated, for a [*597] division of assets or for future maintenance or alimony, is legal if the bargain is a fair one in view of the circumstances of the parties." In Williston on Contracts, Revised Ed., paragraph 1625 A, it is said, "In the absence of a relationship between the parties to a transaction which tends to give one dominance over the other, undue influence must generally be proved by the party setting it up and will not be presumed." As pointed out in Coomber v. Coomber, [1911] 1 Ch. 723, this doctrine does not rest merely upon the existence of a fiduciary relationship, but is applied only on those in which normally one party occupies a position of dominance toward the other.  Williston further states that where a relationship of dominance exists it throws upon the dominant party the burden of establishing the fairness of the transaction, and that this principle has been generally applied to gifts rather than to contracts, but [***13]is not confined to such cases.  Two New Jersey cases are cited as authority for the statement that a deed from a husband to a wife will be presumptively invalid if in fact the wife is shown to be the dominant party. Haydock v. Haydock's Ex'rs, 34 N. J. Eq. 570, 38 Am. Rep, 385, and McCambridge v. Daly, 109 N. J. Eq. 43, 156 A. 372.

   In the Haydock case an aged and infirm husband had given his wife, within two months before he died, stocks and bonds, and a promissory note for $5,000.  The Court said that the evidence impressed him with the conviction that at the time when the transfers were made, the mind of the husband approached so closely to the line which defines the limit of legal mental capacity, that he should be inclined to hold the gifts were void on this ground.  However, he went on to say that upon the theory that the husband was a person who possessed sufficient mental power to make a gift, he thought under the circumstances the duty was upon the recipient, that is, the wife, to show the fairness of the transaction, and he stated the situation and the law applicable to it in the following words: "Here was a man of weak mind and body.  All the evidence in the cause[***14] shows that the wife was the [*598] one upon whom he naturally leaned.  She watched his movements and cared for his wants, and he submitted himself to her control.  She naturally and necessarily became the head of the house.  While they so lived together, and while none but the wife and her brothers were [**747]about him, without the advice of disinterested counsellors, the old man made these gifts of which she was the recipient.  I take the rule to be settled that where a person, enfeebled in mind by disease or old age is so placed as to be likely to be subject to the influence of another, and makes a voluntary disposition of property in favor of that person, the courts require proof of the fact that the donor understood the nature of the act, and that it was not done through the influence of the donee.  Huguenin v. Baseley, 2 L. C. in Eq. (4th Am. Ed.) notes, pp. 1183-1185, American notes, pp. 1192-1194." In the McCambridge-Daly case a saloon keeper, who had been a heavy drinker, suffered from mental depression and was morbid, conveyed his saloon property, which was his sole support, to his wife.  He subsequently died in the State Hospital for the Insane, but the Court[***15] did not find in him a lack of mental capacity at the time he made the deed. In striking down the deed the Court said, [109 N. J. Eq. 43, 156 A. 373] "Though he was not incompetent, the condition of McDonald's health and his admitted dependence upon his wife, however, puts upon her the burden of showing that he understood what he was doing when he made the deeds and that he was not unduly influenced." Both of these New Jersey cases were concerned with voluntary gifts where it was shown that the wife occupied a position of dominance in the family at the time they were made.

   In the English cases, a presumption is not applied to the relation of husband and wife, but will depend on actual proof of dominance. It was decided in Nedby v. Nedby, 1852, 2 De G. & Sm. 377, that a voluntary appointment by deed by a wife in favour of her husband will not be set aside merely on the ground of the relationship between them.  The doctrine of Huguenin v. Baseley, 14 Ves. 273, [*599]does not apply.  This was followed in Barron v. Willis, [1899] 2 Ch. 578. In that case Mr. Justice Cozens-Hardy said "* * * there is no presumption that a voluntary deed executed by a wife in favour[***16] of her husband and prepared by the husband's solicitor is invalid. The onus probandi lies on the party who impugns the instrument and not on the party who supports it." See discussion in 151 Law Times 313 (1921).

   The general subject is discussed in a note to the case of Hughes v. Leonard, 66 Colo. 500, 181 P. 200, 5 A. L. R. 817, the note begining at page 823.  In that note cases are shown where both husbands and wives attempt to set aside separation agreements, and it is stated to be the general rule that in jurisdictions where husbands and wives have equal contract and property rights, separation agreements not disclosing on their face any injustice and inequity are presumptively valid and the burden to prove that their execution was caused by coercion, fraud, or mistake is upon the party making the allegation.

   The right of a married woman to contract with her husband has been recognized in this State for many years.  Code 1939, Article 45, Sec. 20.  Prior to the grant of such right, agreements which were fair in all respects were frequently sustained by the application of estoppel.  An agreement by a wife to release her dower in her husband's property was upheld by[***17] this Court in the case of Hill v. Boland, 125 Md. 113, 93 A. 395. An agreement of separation was held to be valid as to property rights, but invalid as to marital rights in the case of Melson v. Melson, 151 Md. 196, 134 A. 136. In the late case of Brooks v. Brooks, 184 Md. 419, 41 A. 2d 367, a wife attempted to set aside an agreement of settlement on the ground that she was confused and did not fully comprehend the situation.  She was represented by counsel.  We held that she had shown no such ground and refused to strike down the agreement, although it gave her less than the property to which she might otherwise have been entitled.

   [*600] In the case of Livingston v. Hall, 73 Md. 386, 21 A. 49, 51, this Court, speaking through Chief Judge Alvey, said "A voluntary contract or agreement, that is, without valuable consideration as between husband and wife, a court of equity will never enforce; but, where such agreements have been consummated, a court of equity will uphold them, and give them effect, provided they have been in all respects just and fair, and not to the prejudice of creditors." And the Court further quoted 2 Story's Eq. Sec. [**748] 1395, [***18]"But, at the same time, courts of equity examine every such transaction between husband and wife with an anxious watchfulness, and caution, and dread of undue influence, and, if they are required to give sanction or effect to it, they will examine the wife in court, and adopt other precautions to ascertain her unbiased will and wishes." Both of these quotations were repeated in the case of Reed v. Reed, 109 Md. 690, 72 A. 414, 130 Am. St. Rep. 552, and in addition the court referred to a statement in Farmer's Executor v. Farmer, 39 N. J. Eq. 211, 216, that gifts by a wife to a husband "are to be closely inspected on account of the danger of improper influence, but if they appear to be fairly made and to be free from coercion and undue influence they ought to be sustained." In the case of Hillwood v. Hillwood, 159 Md. 167, at page 172, 150 A. 286, 288, the Court said, "The law on this subject is familiar. It is that a wife may dispose of her property by gift to her husband as fully and effectually as if the transaction were between persons not occupying that relation, but, because of the natural dominance of the husband and the trust and confidence commonly incident to[***19] their union, the gift will be closely, carefully, and vigorously investigated in a court of equity, and be annulled if obtained by fraud, coercion, misrepresentation, or undue influence."

   This last statement is repeated in Tillinghast v. Lamp, 168 Md. 34, at page 48, 176 A. 629, 634, where the Court was examining the law as to transactions between husband and wife. It had been suggested that where a wife transferred her sole and separate estate in certain funds [*601] to joint accounts for herself and husband, the burden was upon the husband under the conventional doctrine of confidential relations to show the transaction was fair and there had been no abuse of confidence.  The Court quoted, in support of that general doctrine, Beach, Eq. Jur. 141, Pomeroy, Eq. Jur., Sec. 956, to the effect that "because every fiduciary relation implies a condition of superiority held by one of the parties over the other, in every transaction between them by which the superior party obtains a possible benefit, equity raises a presumption against its validity, and casts upon that party the burden of proving affirmatively its compliance with equitable requisites." The Court said that[***20] the rule recognized in this State was that laid down in Hillwood v. Hillwood, supra, already quoted.  The general question was again discussed in the recent case of Beard v. Beard, 185 Md., 178, 44 A.2d 469, 473. In that case the husband and wife were engaged together, first, in the cab business, and then in the tavern business.  In that case we made a distinction.  The stock in the cab company, paid for by husband, which he put in the name of himself and wife, as tenants by the entireties, was held to be a gift from him to her, so far as her interest in it was concerned.  On the other hand, when the stock was sold and she received half the proceeds and gave them back to her husband to go into the tavern business, it was held that this was not a gift from her to him.  The theory on which this was done was that the husband was the dominating figure in this particular marriage, and the wife never intended to give up her property.  The Court discussed all the previous cases which we have referred to and said, "If a confidential relationship between husband and wife can ever be established in Maryland, Mrs. Beard's complete blind trust in her husband and reliance upon him, as shown[***21] by her testimony and by his, would seem sufficient to establish such a relationship." In another recent case of Levy v. Sherman, 185 Md. 63, 43 A. 2d 25, 29, we had before us an antenuptial contract by which a wife agreed to take much less than her legal share of her [*602] husband's property if he predeceased her.  After her husband's death she filed a bill to void the contract.  One of the questions was whether the parties, before they were married, occupied such confidential relationship with each other, that the burden was placed upon the representatives of the husband to show the contract was fair and equitable. This Court, speaking through Judge Grason, discussed many cases from other jurisdictions, and declined to attempt to reconcile them, but laid down the rule as to such agreements, in the following words: "We think when an antenuptial contract is entered into in contemplation of marriage, whether the parties are engaged to marry at the time or not, it is required of each to make [**749] a frank, full, and truthful disclosure of their respective worth in real as well as personal property.  And in such cases where the disclosure of worth is not full and frank, [***22] fair and truthful, and the allowance provided in the agreement is unfairly disproportionate to the worth at the time, the concealment gives rise to the implication of fraud, and the burden of proof is cast on those claiming under it when the instrument is attacked, to show that it was entered into freely, voluntarily, and knowingly and that each was given the opportunity to obtain independent legal advice."

   The appellant urges upon us a decision of the Supreme Court of Delaware, Peyton v. William C. Peyton Corp., 23 Del. Ch. 321, 7 A. 2d 737, 746. The Court, in that case, stated the rule as follows: "Confidential relations are presumed to exist between husband and wife. The most dominant influence of all relations is that of husband over wife; and the relation is confidential to the highest degree.  There are exceptional cases, of course, where the woman is the more masterful; but, generally speaking, the trust of the wife is so absolute and her dependence so entire, while the dominion of the husband is so complete and his influence so controlling, that equity scrutinizes severely all transactions between them; for, in the proportion to the affection and trust is the probability[***23] of the wife to be subject to the husband's [*603] influence, and in the same proportion is the vigilance of the court aroused. Confidential and fiduciary relations have the same meaning in law; and as every fiduciary relation implies a condition of superiority of one of the parties over the other, equity raises a presumption against the validity of a transaction by which the superior obtains a possible benefit at the expense of the inferior, and casts upon him the burden of showing affirmatively his compliance with all equitable requisites." It will be noted from this quotation that the Delaware Court has gone much further than this Court in holding that there is a presumption against the husband in all cases of transaction between husband and wife. That is not the law of this state, as we have already indicated, but if it were, it would give no basis for a presumption the other way; that is, against the wife.  On the contrary, by the reason given it would negative effectively any presumption that a wife was ever the dominant party.

   We conclude there is no presumption against the validity of the agreements in the case before us, and that the burden of proof was upon the appellant [***24]to show that the wife was the dominant party in the marriage, and that appellant was improperly influenced and coerced into making the agreement. That burden he has not sustained.  He has not produced any evidence tending to show that he was dominated by his wife, or that she was the master mind in the marriage. He has shown no glaring inequality in the provisions agreed upon, such as would lead to that conclusion from the face of the papers.  On the contrary, if he was relieved from the care of a large dwelling and from the support of his wife for what he could reasonably have thought would be many years, his agreement was not so one-sided.  There was no concealment of assets and he was given an opportunity to get independent counsel to advise him.  This he did not see fit to do.  He has testified that he was willing to make the separation agreements, that after the first was made he preferred to abide by it, and not to go back to his wife, that when he did go back, he willingly entered into the second one.  He [*604] acquiesced in what was done, and he cannot now be heard to disclaim his bargain, although it may have unexpectedly resulted, by the early death of his wife, in[***25] being a worse one for him than he though it was at the time he made it.  If he thought it was fair then, he cannot resort to the courts to correct his bad judgment or the effects of the laws of nature.  The decree will be affirmed.

   Decree affirmed, with costs. 

AGNES J. STIMIS v. ALVAH R. STIMIS 
No. 135, October Term, 1945
 
Court of Appeals of Maryland
 
186 Md. 489; 47 A.2d 497; 1946 Md. LEXIS 225

 May  17, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order affirmed, with costs to the appellee.

CORE TERMS:  custody, lived, divorce, paramour, infant child, infant, married, best interest, cross-bill, matrimonii, vinculo, farm, housekeeper, sister, sole question, minor child, daughter-in-law, industrious, law-abiding, chancellor, desertion, occupied, adultery, intimate, stigma, decree, love

COUNSEL: Albert J. Goodman and James A. McAllister for the appellant.

   Linwood L. Clark for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, and Henderson, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*490] [**498] This is an appeal by Agnes Stimis, hereinafter known as the appellant, from an order of the Circuit Court for Anne Arundel County dismissing her petition for the custody of her minor child, Robert Lee Stimis.

   The appellant and the appellee, Alvah R. Stimis, were married in the year 1934 in Dorchester County, Maryland.  Two children were born to this marriage, one having died.  The other, Robert Lee Stimis, was seven years old at the time of this appeal.  The appellant is thirty-three years of age and the appellee is forty-eight years old.

   The appellant, having[***3] moved to Anne Arundel County, on April 21, 1944, filed a bill of complaint in that court for a divorce a vinculo matrimonii from the appellee on [*491] the grounds of desertion. An answer and cross-bill was later filed by the appellee.  In the cross-bill he alleged desertion and adultery on the part of the appellant.  The appellant filed an answer denying the charges but offered no testimony at the hearing on the cross-bill. As a result of the hearing, at which no evidence of adultery was offered, the appellee here, on the 11th day of July, 1944, was granted a divorce a vinculo matrimonii from the appellant on the cross-bill. The custody of the infant child, Robert Lee Stimis, was awarded to the appellant, subject to the further order of the court with the right to the appellee to see the child at all reasonable times.  The appellee was ordered to pay the appellant $8.00 per month for the support of the infant child.

   On September 25, 1944, the appellee filed a petition alleging that the appellant had gone to the State of Maine with one Joseph Cyr, her paramour, had taken the infant child with her, and the best interest of the child required that the cusody be awarded[***4] to the appellee.  After order nisi on this petition and no answer, on the 31st day of October, 1944, the custody of the infant child was awarded to the appellee, subject to further order of the court, by Judge Melvin.  On September 19, 1945, a petition was filed by the appellant for the recission of that order.  After answer was filed to this petition by the appellee and testimony taken, on the 5th day of November, 1945, the chancellor, Judge Clark, dismissed the petition of the appellant and reaffirmed the award of custody of the infant to the appellee, subject to the right of the appellant to see the infant at reasonable times.  From that order the appellant appeals.

   It is a well-known principle of law in this state that in cases involving the custody of a child, the sole question before the court is the best interest of the child.  Young v. Weaver, 185 Md. 328, 44 A. 2d 748; Piotrowski v. State, etc., 179 Md. 77, 18 A. 2d 199; Dietrich v. Anderson, 185 Md. 103, 43 A. 2d 186; Cockerham v. Children's Aid, etc., 185 Md. 97, 43 A. 2d 197. The question before this court is therefore whether for the best interest of [*492] the minor child, Robert Lee Stimis, [***5] custody should be awarded the mother, the appellant, or the father, the appellee.

   The parties to this cause were married in Dorchester County, Maryland, in 1934, and apparently lived there happily together for a time.  Then Joseph Cyr, whom the appellant had met at a garage, came to board at the home of the parties to this [**499] suit.  At that time the appellee was working at the Eastern Shore State Hospital making $40 per month and his board.

   The appellant left her husband in January, 1940, claiming that he did not provide enough money for her support.  Then she and her mother operated a dance hall and beer tavern near Cambridge, Maryland, where Joseph Cyr was employed as a "bouncer." The parties to this suit became reconciled in April, 1941, and lived together until August, 1941.  Appellant then left the second time in August, 1941, and stayed away until Christmas Day of that year when she returned to her husband and lived with him for three days.  Then on December 28, 1941, she told him to get out of the house as he was not giving her enough money. This resulted in the final separation of the parties.

   Joseph Cyr moved early in 1942 to Anne Arundel County, near Severna[***6] Park, and obtained employment as a mechanic.  He rented a furnished house and in March, 1942, the appellant moved with her son to this house and was installed as Cyr's housekeeper. Both the appellant and Cyr testified that Cyr paid her $5.00 a week and boarded her and the boy as compensation for being his housekeeper. There were two bedrooms in this house and the only people living there were the appellant and her son and Cyr.  The appellee testified that he came from Dorchester County to Severna Park to see his son a number of times but that he only found him home once.  As hereinbefore stated, on April 21, 1944, the appellant filed a bill for divorce a vinculo matrimonii which resulted in the appellee obtaining the divorce. In September, 1944, the appellee visited the home in Severna Park [*493] where his wife formerly lived and found that all the belongings had been removed from the house and that no one was living there. He made inquiry at the post office for a forwarding address but was unable to get this.

   He then filed on September 25, 1944, the petition hereinbefore referred to, in which he stated that his former wife had left for Maine with Mr. Cyr and had taken[***7] the child with her, but that he had been unable to ascertain her address and prayed that the decree of July 11, 1944, be modified.  A copy of this petition was served on appellant's counsel and was sent by him to the appellant, but she took no action thereon.  Finally, during the latter part of August or early in September, 1945, Mr. Stimis was informed as to his former wife's address in Maine.  He then immediately went to Fort Fairfield, Maine, with a certified copy of the order of October 31, 1944, which awarded him custody of the child.  A habeas corpus proceeding was filed in Maine but no action was taken thereon pending the return of the parties to Maryland.  Upon the return to this state testimony was taken which showed that, when the sheriff in Maine went to the home where Joseph Cyr, Agnes Stimis, Robert Lee Stimis, and Cyr's daughter-in-law lived, he was told by the appellant that she was Mrs. Cyr. She later admitted that she was Agnes Stimis.  The child, Robert Lee Stimis, was entered in school by his mother under the name of Robert Cyr.  At the time of the habeas corpus hearing in Maine, Cyr, who at that time had a wife and several children, had a divorce suit pending. [***8] After the appellant returned to Maryland for the custody hearing, he obtained his divorce and came down to Maryland and married the appellant before the hearing in the custody case.  It was testified at the custody hearing that Cyr and his wife intended to return to Maine and take the child with them.

   At the time of the hearing the appellee lived and worked on a farm in Talbot County, Maryland, owned by his sister and which was also occupied by the brother of the appellee and his father and mother.  The appellant admits that as far as she knows it is a decent, respectable [*494] home.  There is testimony that, although this farm has been purchased by the sister of the appellee, a plan is under way which, if consummated, will result in the sister, the brother, and the appellee each owning a one-third interest in the farm. This farm in Talbot County is convenient to churches and schools.

   Although there was no direct evidence that Cyr and the appellant lived as man and wife during the time they occupied [**500] the house in Anne Arundel County, the living conditions there were certainly not above suspicion, and were such as to lead a reasonable person to believe that the[***9] relations of these parties were more intimate than they admitted.  The appellant admitted that during the last few years before the custody hearing she was in love with Cyr and he was in love with her.  Their denials of intimate relations are not convincing.  Her actions in leaving the State of Maryland and going to Maine with this man, not her husband, taking the child with her, using Cyr's name as her own in Maine, living in the same house with him, and entering the boy in school as Cyr's son, could hardly be said to be to the best interest of the child.  The question naturally arises as to why Cyr took the appellant to Maine when he had his daughter-in-law living with him who could have been his housekeeper. During the time appellant lived in Maryland her husband paid her $8.00 per month toward the support of the infant. In order to conceal her residence in Maine she forfeited that $8.00 a month in not advising her husband of her address there.  Also she did not contest the custody proceedings brought by the husband in Maryland by his petition filed on July 11, 1944.  It is reasonable therefore to conclule that she did not want her whereabouts in Maine known.

   Cyr can neither[***10] read nor write which may in part excuse his actions, but in view of all the circumstances of this case this fact does not add to his qualifications as the head of the household in which the mother seeks to rear the child.  It is true that these lovers have finally married, but this in no sense removes the stigma placed [*495] on the infant child in Maine, where he lived with his mother, who used the name of a man to whom she was not married, and in whose home she lived, and where he was placed in school as the son of his mother's alleged paramour. There is no attack on the character of the appellee.  From the information before us he is a law-abiding, moral, and industrious man.  It is not disputed that the father has a good home for his son in Talbot County, Maryland.  From the record it is very doubtful that the home in Maine is such as to develop the best in the child.  The chancellor had the parties before him for his personal appraisement and had the opportunity to judge the credibility of the witnesses.  We see no reason to disturb his order from which the appeal is taken.

   Order affirmed, with costs to the appellee. 

COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. HERBERT S.WARD 
No. 112, October Term, 1945
 
Court of Appeals of Maryland
 
186 Md. 330; 46 A.2d 684; 1946 Md. LEXIS 207; 165 A.L.R. 816

 April  12, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order reversed, and petition dismissed, with costs.

CORE TERMS:  regulation, zoning, enabling act, ordinance, zoned, zone, residential, feet, apartment, sub-title, erected, street, housing shortage, uniformity, municipality, alteration, cottage, rustic, authority conferred, regulations adopted, comprehensive plan, general welfare, cubic feet, non-conforming, constructed, one-family, industrial, erection, notice, front

COUNSEL: Benjamin Michaelson for the appellants.

   Herbert S. Ward, pro se.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, and Henderson, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*331] [**684] On May 7, 1945, a petition for a writ of mandamus was filed against the appellants [**685] in the Circuit Court for Anne Arundel County, alleging that the appellee was the owner of two lots in a subdivision of Bay Ridge, having a frontage[***3] of 200 feet on Bay Drive and 243 feet on Upsher Ave.; that he made application on April 28, 1945 for a building permit to erect on the rear of his lots five rustic, 16' X 16' cabins at a cost of $300 per cabin, and one rustic central service building, 16' X 32', to cost $600; that the permit was refused on May 1, 1945; that the refusal was "arbitrary, unlawful and unjust and in violation of the plaintiff's rights."

   An answer was filed to the petition setting up certain zoning regulations, adopted by the County Board on January 30, 1945, pursuant to authority conferred by [*332] chapter 551 of the Acts of 1943.  The petitioner demurred to the answer, and the case was submitted to the trial court upon an agreed statement of facts.

   It is conceded that the application for permit complied in all respects with the building Code then in force, but it is also conceded that it violated the applicable zoning regulations, which called for "one-family residences; no apartments", not more "than one residence on a lot with a fifty (50) foot front", and no house "to contain less than 3,200 cubic feet" or "cost less than $2,500."

   Bay Ridge is a peninsula located at the mouth of the Severn[***4] River, about four miles by road from Annapolis.  Where not surrounded by water, or bordered by water, the area is bordered by privately owned farm land.  The area contains about 300 acres and was surveyed and laid out in building lots about 1920; since that time it has been maintained as a residential community, with the exception of about 12 acres developed as a bathing beach and summer resort. Most of this acreage is covered with timber and unimproved.  There are about 200 private residences, most of which are suitable for year-round habitation. Building restrictions substantially identical with the zoning restrictions were incorporated in the original deeds, but these expired in 1935.  The petitioner purchased his lots subsequent to 1935.  The proposal to zone was presented to the County Commissioners August 2, 1944, by Bay Ridge Civic Association, a body corporate.  Several public hearings were held thereon, after due notice, and the regulations were finally adopted, with amendments, on January 30, 1945.

   The enabling Act, chapter 551 of the Acts of 1943, effective May 4, 1943, read as follows:

   "Zoning.

   "516. For the purpose of promoting health, safety, morals, and the general [***5]welfare of the community, the County Commissioners of Anne Arundel County are hereby empowered to designate residence areas within said County and to regulate, restrict or prohibit the [*333] location and use of buildings, structures and land for trade, industry, other commercial enterprises and residences or other purposes within said areas.  Such regulations shall be made in accordance with a comprehensive plan. They shall be designed to reduce congestion in the roads, streets and alleys; to promote safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to provent the overcrowding of land and to avoid undue concentration of population; to facilitate adequate provision for schools, parks, water, sewerage, transportation and other public requirements, conveniences and improvements, including such public utility buildings, structures and facilities as may be required in each district for the storage and/or distribution of gas and electricity.

   "For all or any of said purposes the County Commissioners of Anne Arundel County may designate within the County certain residence districts or divisions of such number, shape[***6] and area as may be deemed best suited to carry out the purposes of this sub-title, and within such districts they may regulate and restrict the erection, construction, reconstruction, alteration, repair and use of buildings, structures and land.  All such regulations shall be uniform for each class or kind of building or structure throughout each district, but the regulations in one district may differ from those in other districts.

   "517. The County Commissioners shall determine the manner in which regulations and restrictions, and the boundaries of such districts, shall be established and enforced, and from time to time amended, supplemented and changed.  Before determining the boundaries of the proposed districts and the regulation to be enforced therein, they shall hold a public hearing or hearings thereon, giving at least fifteen days notice in a newspaper of general circulation throughout the County, of the place and time of the beginning of such hearing or [**686] hearings.  The County Commissioners shall have power to [*334] amend, supplement or repeal the regulations or restrictions adopted by them, provided that before doing so they shall follow the same procedure[***7] with respect to notice and public hearings as is herein provided for the original regulations and restrictions.

   "518. The County Commissioners are hereby vested with such duties and powers as may be necessary and advisable for the proper administration of this sub-title and of such zoning regulations as they may adopt under the provisions of this sub-title, including the power to make general exceptions to permit continuance of existing uses and to permit limited trade or commercial uses of designated streets or blocks within residence areas, and including the power to summon and compel the attendance of witnesses.

   "519. Any person, persons, taxpayer, officer, department, board or bureau of the County, jointly or severally aggrieved by any decision of the County Commissioners of Anne Arundel County, may, within thirty days after the filing of such decision in the office of the County Commissioners, appeal to the Circuit Court for Anne Arundel County.

   "The said Court shall hear all such appeals de novo and shall have power to affrm the decision of the County Commissioners of Anne Arundel County, or reverse the same, in whole or in part, and may remand any case for the entering [***8]of a proper order or for further proceedings, as the Court shall determine.

   "All issues in any proceeding under this sub-title shall have preference over all other civil actions and proceedings.

   "520. The County Commissioners shall keep in a separate book all rules, regulations and restrictions adopted by them from time to time under the authority of this sub-title, and any amendments or supplements thereto, and shall cause copies to be printed and made available for general distribution. Any such printed copy, together with any amendments and supplements, when certified as accurate by the Chief Clerk of the County [*335] Commissioners, shall be deemed prima facie evidence thereof in any judicial proceeding in the State.

   "521. Any violation of regulations and restrictions adopted pursuant to this sub-title shall be a misdemeanor, punishable by a fine not to exceed One Hundred Dollars ($100.00), or by imprisonment not to exceed thirty days, or both fine and imprisonment.  Any person who shall violate such regulations and restrictions shall be deemed guilty of a separate offense for every day that such violation shall continue.  Any person whose property is affected by [***9]any violation, including abutting and adjacent property owners, whether specially damaged or not, may maintain an action in the Circuit Court for Anne Arundel County for an injunction, enjoining the erection, construction, reconstruction, alteration, repair or use of buildings, structures and land in violation of regulations and restrictions adopted pursuant to this subtitle.

   "522. The County Commissioners of Anne Arundel County are hereby vested with full authority and power to levy on the assessable property in each zone created under the provisions of this Act, such amounts as may be necessary to effect the proper administration of this Act."

   The regulations adopted read as follows:

   "1. The entire area of Bay Ridge is to be strictly residential as per the duly recorded plat of Bay Ridge.  It shall be limited to one family residences; no apartments. This shall not apply to the erection of a Community Club House and Pier to be erected by the residents of Bay Ridge.

   "2. No Building shall be erected in Bay Ridge nearer to the avenue, street or drive on which it fronts, as now laid out on the plats of Bay Ridge Realty Corporation, than forty (40) feet, measuring on the center of[***10] the front lot line, or five (5) feet from the rear or side line.  Any separate garage shall be erected on the rear part of lots and not less than seventy five (75) feet from the front Building line.

   [*336] "3. There shall not at any time be more than one residence on a lot with a fifty (50) foot frontage.  No building shall be erected on a lot having an average width of less than fifty (50) feet, or an area of less than 5,000 square feet.

   "4. No house shall be constructed on any lot fronting the Severn River, the Chesapeake Bay, Sands Avenue, Lake Drive from Sands Avenue, to Decatur Avenue, Decatur Avenue, Barry Avenue and Farragut Road, to contain less than 5,000 cubic feet, and to cost less than $3,500.  On all other lots no house shall be constructed to contain less than 3,200 cubic feet and cost less than $2,500. All buildings [**687] used as residences, or for business purposes in Bay Ridge shall conform to the Building Code and shall be provided with interior, sanitary plumbing.

   "5. No wines, distilled, or fermented liquors, or intoxicating drinks of any kind shall be sold, or offered for sale in Bay Ridge.

   "6. No hunting shall be permitted in the area zoned, [***11] and no poultry or animals except dogs and cats, and these not to be allowed to run at large shall be kept, nor any nuisance of any kind kept on property, which shall be dangerous to health or obnoxious.

   "7. All wells shall be drilled and capped.  (Artesian).

   "8. All plumbing and septic tanks and disposal fields must be approved and passed by Anne Arundel County Board of Health.  All residences built in Bay Ridge must be equipped with a bath tub or shower, lavatory, sink, flush toilet connected to septic tanks, grease trap and sub-soil drain.

   "9. No commercial, manufacturing, industrial businesses of any kind, public bathing beaches, or places of public entertainment, shall be constructed, maintained or operated at any point within the zoning area, unless specifically permitted in covenant or deed executed prior to the adoption of these regulations, this shall not apply however, to a community house, or entertainment, which shall be conducted as a community enterprise.

   [*337] "10. No building with its accessory buildings, shall occupy in excess of forty (40) percent of an interior lot, nor in excess of fifty (50) percent of a corner lot.

   "11. The lawful use of the buildings[***12] or premises, as existing and lawful at the time of the adoption of any regulation heretofore or hereafter adopted may be continued, although such does not conform to the provisions of such regulation, provided no structural alterations, except such as may be required by law or regulation, or no enlargement is made, or no new building is erected. Where structural alterations are made to a building of a non-conforming use, such use shall be changed to a use consistent with the provisions of these regulations for the district in which such building is located, only if the cost of such exceeds thirty (30) percent of the cost of the original building."

   Three questions seem to be presented on this appeal: (1) the constitutional validity of the enabling act, (2) whether the regulations adopted are within the scope of the powers granted by the enabling act, and (3) whether the action of the Board of County Commissioners in refusing to issue a building permit was arbitrary, unlawful and in violation of the plaintiff's rights.

   Of the constitutional validity of a comprehensive zoning ordinance there can be little question, since the decision of the Supreme Court in Euclid, Ohio, v. Ambler [***13]  Realty Co., 272 U.S. 365, 71 L. Ed. 303. The area zoned in that case was the entire village of Euclid, a suburb of the City of Cleveland. The court said: "The serious question in this case arises over the provisions of the ordinance excluding from residential districts apartment houses, business houses, retail stores and shops, and other like establishments.  This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded." The court upheld the ordinance and cited with approval State ex rel. Civello v. New Orleans, 154 La. 271, 282, [*338] 97 So. 440, 33 A. L. R. 260. However, in Nectow v. Cambridge, 277 U.S. 183, 72 L. Ed. 842, the Supreme Court recognized that the power to zone is not unlimited, and that particular use classifications may be set aside, where it is shown "that the health, safety, convenience and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question." [***14] If the question is "fairly debatable," the zoning stands.  Zahn v. Board of Public Works, 274 U.S. 325, 71 L. Ed. 1074; Leventhal v. District of Columbia, 69 App. D. C. 229, 100 F. 2d 94. 

   This court is fully committed to the proposition that zoning, in general, is a valid exercise of the police power.  R. B. Construction Co. v. Jackson, 152 Md. 671, 137 A. 278. But the point raised, upon which the lower court seems to have based its decision, at least in part, is that the enabling act conferred the authority to zone only selected residential districts, without regard to the county as a whole.  In Ellicott v. Baltimore, 180 Md. 176, 181, 23 A. 2d 649, 651, this court said: "The [**688] purpose of the zoning law is, of course, to devote general areas or districts to selected uses.  'The whole value of zoning lies in the establishment of more or less permanent districts, well planned and arranged.' Rehfeld v. City and County of San Francisco, 218 Cal. 83, 85, 21 P. 2d 419, 420." In Kramer v. Mayor and City Council of Baltimore, 166 Md. 324, 171 A. 70, it was held that the requirement of uniformity and comprehensiveness prescribed by the enabling act did not[***15] prevent the reservation of a right to deal with the location of filling stations in non-residential districts by special ordinances.

   In State ex rel. Civello v. New Orleans, supra, the court said, 154 La. 271, 97 So. at page 445: "It is contended * * * the Constitution does not authorize the enactment of an ordinance applying to only one street, or to a very limited district, but contemplates that a zoning ordinance shall be so comprehensive as to affect the whole municipality, or at least a large proportion of its area. We do [*339] not think so.  * * * In some cities * * * it might be impracticable, to zone the whole area in one comprehensive ordinance." In Town of Marblehead v. Rosenthal, 1944, 316 Mass. 124, 125, 55 N. E. 2d 13, the court said: "Nothing in the statute * * * or in common sense requires a municipality to impose restrictions upon all of its territory as a condition of the exercise of its zoning powers.  The defendants concede that it is a question of reasonableness."

   In Acker v. Baldwin, 1941, 18 Cal. 2d 341, 115 P. 2d 455, authority to zone was conferred upon a county, and the county authorities selected an area four miles square, bordering the[***16] City of Los Angeles, and zoned it for residential use.  This action was sustained, although the rest of the county remained unrestricted.  See also Board of Commissioners of Vanderburgh County v. Sanders, 1940, 218 Ind. 43, 30 N. E. 2d 713. Compare Frederick v. Board of Sup'rs, Jackson Co., 1945, 197 Miss. 293, 20 So. 2d 92.

   We think there is no constitutional requirement that an entire municipality or county be zoned at one time, or that regulations be uniform throughout the county.  The enabling act in the case at bar contemplates uniformity for each class or kind of building or structure in a particular district; it specifically recognizes that restrictions may vary as between districts.  It is not beyond the power of the legislature to limit the authority conferred upon the local legislative body to one type of use regulation, leaving open other areas in which business or industrial uses are unregulated.  And this is true even though writers upon the subject generally condemn "piece meal" zoning as undesirable and even hazardous, and refer to this method as "block" rather than "comprehensive" zoning. Bassett, Zoning (1940 Ed.) p. 90; Matzenbaum, Law of Zoning[***17] (1930) p. 20; Bettman, Constitutionality of Zoning, 37 Harv. L. R. 834, 842. The wisdom of the method followed is for the legislature, not the courts, to determine.

   [*340] The enabling act calls for a comprehensive plan, but we think such a requirement is met, if due consideration is given to the common needs of a particular district.  No doubt such needs will vary with each area zoned. In the case at bar, the whole area of Bay Ridge appears to have been platted and developed originally for residential use, within well-defined natural boundaries.  Up to this time it has contained no industrial and few commercial enterprises.  Regulation 11 preserves the rights of non-conforming uses.  It is not necessary in this case to approve or disapporve all of the regulations adopted; it may be questioned, for example, whether the limitations of cubic content and cost of improvements are valid.  Bassett, Zoning (1940 Ed.) to p. 187; Senefsky v. Lawler, 1943, 307 Mich. 728, 12 N. W. 2d 387; Brookdale Homes, Inc., v. Johnson, 123 N. J. L. 602, 10 A. 2d 477. Restrictive covenants, appropriate in contracts and deeds between private parties, may be wholly inappropriate in zoning[***18] regulations, which must be predicated upon a public interest.  But the application for a permit to build five rustic cottages and a service cottage clearly violates Regulation 1, which limits the use to "one-family residences; no apartments," and this is the type of regulation that is usually found in zoning ordinances.

   The appellee concedes that the proposed structures would constitute a technical violation of the regulations, but contends that the Board should have exercised discretion in granting the permit, in view of the housing shortage, and that its action was unreasonable.  The Board of County Commissioners, as an administrative body, was bound to follow the regulations it adopted, in the exercise of its delegated legislative power.  See Oppenheimer [**689] Administrative Law in Maryland, 2 Md. L. R. 185, 193. The fact that it might have re-zoned the area, upon due notice and after hearing, does not alter its obligation to adhere to existing regulations, or authorize it to make special exceptions in individual cases.  Chayt v. Zoning Appeals Board, 177 Md. 426, 9 A. 2d 747, and cases cited; Sugar v. North Baltimore Methodist Protestant Church, [*341] [***19] 164 Md. 487, 165 A. 703. Compare County Commissioners of Prince George's County v. N. W. Cemetery Co., 160 Md. 653, 154 A. 452, and Gordon v. Commissioners of Montgomery Co., 164 Md. 210, 164 A. 676. The only exceptions specifically mentioned in the enabling act are "general exceptions to permit continuance of existing uses and to permit limited trade or commercial uses of designated streets or blocks within residence areas."

   The case of Potts v. Board of Adjustment, 1945, 133 N. J. L. 230, 43 A. 2d 850, 852, is quite in point.  In that case an application for leave to convert a single-family dwelling into a two-family apartment house, due to a "critical housing shortage," was denied.  It was pointed out that the house was located in a residential district, zoned against two-family dwellings by a local ordinance, and that the local board was only empowered to make "marginal * * * adjustments between the opposing restrictions of adjoining districts," within the border area of 150 feet. The court said: "Equality and uniformity of operation within the particular zone, as respects each class and kind of buildings, are basic in the statute.  Invidious distinctions and discriminations[***20] are inadmissible.  The essence of zoning is territorial division according to the character of the lands and structures and their 'peculiar suitability' for particular uses, among others, and uniformity of use within the division." The court also said: "A housing shortage does not clothe the adjustment board with power to annul or modify zoning regulations. As noted, that is the function of the local legislative body."

   For the reasons indicated, we think the refusal of the application was not arbitrary or unreasonable, and that the trial court should have dismissed the petition for mandamus.  We express no opinion as to whether the petition would lie, in any event, in view of the provisions of sec. 519 of the enabling act, relating to appeals.

   Order reversed, and petition dismissed, with costs. 

BOARD OF COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v.MAURICE SNYDER 
No. 114, October Term, 1945
 
Court of Appeals of Maryland
 
186 Md. 342; 46 A.2d 689; 1946 Md. LEXIS 208

 April  12, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order reversed and bill dismissed, with costs.

CORE TERMS:  residential, zoning, regulation, mandatory injunction, non-conforming, regulations adopted, bridge, statutory right, building permit, proposed use, manufacturing, mercantile, adjacent, erection, issuance, invalid, farm, zone, conferred, traffic, legislative authority, farming activities, zoning regulation, bill in equity, specifications, illegality, prescribed, simplicity, commanding, debatable

COUNSEL: Benjamin Michaelson for the appellant.

   Louis M. Strauss and Ernest Fadum for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, [***3] Grason, and Henderson, JJ.  Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*343] [**690] This appeal is from a decree of the Circuit Court for Anne Arundel County, in equity, dated September 13, 1945, directing that a mandatory injunction issue, commanding the appellants to issue a building permit to the appellee, for the erection of a show room, office, lounge and store room upon his property, on Solomon's Island Road, at the South River Bridge, for the display and sale of factory-built motor boats.  It appears from the testimony in the case that he also contemplated the construction of a dock and repairshop at a future date.  The appellee obtained title to a tract of land at this location, containing 17 1/5 acres, by deed dated September 7, 1944; [*344]he had plans prepared by an architect and spent several thousand dollars in grading and landscaping the land in preparation for the erection of improvements.  On November 17, 1944, he applied for a building permit, as required by chapter 414 of the Acts of 1937, and filed therewith the plans and specifications of the proposed building.  This application was supplemental to one filed on his[***4] behalf by a contractor on October 2, 1944.  The Board of County Commissioners, on December 5, 1944, refused the application on the ground that the proposed use was in violation of certain zoning regulations adopted by the Board on November 28, 1944, under the authority of chapter 551 of the Acts of 1943.

   On January 3, 1945, the appellee filed an appeal to the Circuit Court for Anne Arundel County to review the action of the County Commissioners in refusing to issue the permit.  After answer and hearing, the court, on April 6, 1947, ruled that the appeal must be dismissed, because not taken within thirty days from the adoption of the zoning regulations on November 28, 1944, and that no appeal would lie from the action of the Board on December 5, 1944 in refusing the application.  The court suggested, however, that relief might be sought by mandamus or bill in equity.

   On April 23, 1945, the appellee filed a bill for mandatory injunction; upon answer and testimony taken and hearing, the court granted the relief prayed, on the ground that the regulations adopted by the Board on November 28, 1944 were invalid.

   The proposal to zone the land of the appellee was first made to the County [***5]Commissioners on September 26, 1944, when certain residents of Edgewater Beach became aware of the proposed use and protested the issuance of any building permit to the appellee.  Edgewater Beach and Edgewater Beach, Shady Section, are communities on the south side of the South River platted [**691]and developed as residential areas, and adjacent to the appellee's land on the west.  The land of the appellee is adjacent to the South River Bridge and Solomon's Island Road on [*345] the east, and is separated from Edgewater Beach only by a road.  A new plat drawn by the County Engineer included this land, as well as certain farm land adjacent to both tracts to the south.  The regulations adopted for this whole area, including the land of the appellee, are as follows:

   "1. The area within the prescribed residential and agricultural farming zone shall be utilized for private residences and farming properties only.

   "2. No mercantile, manufacturing or trade activities are to be permitted within the zone except that which is necessary for the purpose of the sale of farm products or the clearing and developing of the land for building purposes as prescribed in paragraph 1.

   "3. Private[***6] residences or farms may be rented to individuals or tenants at the discretion of the owners of said properties."

   It is conceded that the proposed building, as shown in the plans and specifications, complies in every respect with the requirements of the local building code regulating the construction of buildings under the authority of chapter 414 of the Acts of 1937.  It is further conceded that nothing in that code would justify a refusal of the application; the refusal can only be supported by reason of the zoning regulations adopted pursuant to chapter 551 of the Acts of 1943.  In a case decided this day, Commissioners v. Ward, 186 Md., 46 A. 2d 684, we have had occasion to sustain the constitutional validity of that Act.  The questions here presented are (1) the validity of the regulations, and (2) the right of the County Commissioners to deny the application under the circumstances of this case.

   The whole purpose of the regulations is to exclude mercantile, manufacturing and trade activities from the area, and to permit therein only residential and farming activities. There is no provision for non-conforming uses, but it does not appear that there are any such uses in existence. [***7] A regulation, otherwise reasonable and proper, is not to be condemned because of its simplicity. [*346] We find nothing in the circumstances that would render the plan invalid because not comprehensive within the area zoned.  Considerable testimony was taken before the County Commissioners, and in court, bearing upon the effect of the proposed use upon the established residential communities, in regard to pollution, interference with bathing, increase of traffic upon the bridge and interruption of traffic by the opening of the bridge to permit the passage of power boats.  The appellee admitted that his plan was to construct a marine railway and service department, in connection with his show room, with slips for some thirty craft, upon the river front at the upstream side of the bridge. There is no commercial business on that side of the river, except a wharf on the downstream side of the bridge, where a Captain Gemme rents row-boats, and sells gasoline and serves meals.  There was testimony to the effect that the whole tract owned by the appellee was suitable for residential purposes, although the appellee testified that "you would not possibly get enough lots out of it to[***8] take care of $25,000 investment." The tract in question is "all woods." We cannot say that the restriction to residential use is arbitrary and unreasonable; at most the question seems "fairly debatable." Zahn v. Board of Public Works, 274 U.S. 325, 71 L. Ed. 1074.

   Zoning plans are usually drawn so as to have only a prospective effect. Courts have generally recognized the presumption that legislative enactments are to be applied prospectively; some courts have held that zoning ordinances that have the effect of prohibiting established and existing businesses are unreasonable and unconstitutional.  Adams v. Kalamazoo Ice Co., 245 Mich. 261, 222 N. W. 86; Jones v. City of Los Angeles, 1940, 211 Cal. 304, 295 P. 14. Compare Inspector of Buildings For Town of Watertown v. Nelson, 1926, 257 Mass. 346, 153 N. E. 798. In Dal Maso v. Board of County Commissioners, 182 Md. 200, 206, 34 A. 2d 464, 467, this court said: "When a zoning board defines or prescribes the character and nature of the buildings which may be made or erected in [*347] a given area, its effect is all in the future; its plan is a guide to those who may erect buildings and the uses and businesses[***9] to which they may be devoted; its activities are legislative within the limits of the delegation of power conferred." See also Chayt v. Board of Zoning Appeals, 177 Md. 426, 9 A. 2d 747; Beyer v. Mayor and City Council of Baltimore, 182 Md. 444, 446, 34 A. 2d 765.

   [**692] But it does not follow that the proposed business in the case at bar was established or existing.  No permit was issued, and if it had been, it would have conferred no vested right, nor would it have created an estoppel. Fitzgerald v. Merard Holding Co., 110 Conn. 130, 147 A. 513; Geneva Inv. Co. v. City of St. Louis, 88 Cir., 87 F. 2d 83.

   A mere intention to use is not enough to establish a non-conforming use (Chayt v. Board of Zoning Appeals, supra; Beyer v. Mayor and City Council of Baltimore, supra), even if the preservation of all existing uses were required, a point which we do not now decide.  At the time when final action was taken on the application, and at the time the bill in equity was filed, the use regulations had been duly adopted and were in full force and effect.  Upon the record before us we hold that there is no sufficient showing of illegality to warrant the issuance[***10] of a mandatory injunction.

   We have considered this case and the preceding one upon their merits, but it seems appropriate to express our views upon the question whether, in either case, there is ground for intervention by the extraordinary remedies of mandamus or injunction.  The enabling Act, Chapter 151 of the Acts of 1943, invests the County Commissioners with administrative as well as legislative authority. It provides in Section 519 that any person "aggrieved by any decision of the County Commissioners * * * may, within thirty days after the filing of such decision in the office of the County Commissioners, appeal to the Circuit Court for Anne Arundel County." No further appeal to this court is authorized.

   We perceive no reason why the statutory right of appeal should be limited to a determination of a legislative, [*348] rather than an administrative, question.  "Any decision" would seem to include a determination in either capacity.  Where a statutory right of appeal is granted, that remedy is exclusive.  Stark v. State Board of Registration, 179 Md. 276, 283, 19 A. 2d 716; Applestein v. Osborne, 156 Md. 40, 143 A. 666. Since no appeal to this court is provided, [***11] none can be implied.  Sugar v. North Baltimore Methodist Protestant Church, 164 Md. 487, 498, 165 A. 703, and cases there cited.

   Order reversed and bill dismissed, with costs. 

GILBERT GILES v. RALPH diROBBIO, et al. 
No. 97, October Term, 1945
 
Court of Appeals of Maryland
 
186 Md. 258; 46 A.2d 611; 1946 Md. LEXIS 199

 April  11, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  plat, divisional, stone, feet, surveyor, fence, trespass, distance, minutes, ran, field book, action of trespass, fregit, quare, adjoining, clausum, pipe, patent, trial docket, northernmost, incomplete, variation, inclusive, purchaser, ambiguity, frontage, easterly, surveyed, monument, measured

COUNSEL: Linwood L. Clark for the appellant.

   Louis M. Strauss and Samuel Schenker submitted on brief for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins. Grason, and Henderson, JJ.  Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*260] [**612] This is an action of trespass quare clausum fregit instituted in the Circuit Court for Anne Arundel County by the appellant against the appellees.  To the declaration the general issue plea was interposed.  The case was heard by the court without the aid of a jury, and from a judgment for the appellees an appeal was taken to this court.

   [**613] Thereafter appellant filed a petition in the case alleging that subsequent to the rendition of the judgment, a man by the name of Towson told appellant that he had [*261] a contract to purchase lot No. 16 (involved in this case) in 1920, and lived thereon until 1929, when he assigned his contract of sale to one Wilkinson; [***5] that Towson "drove said pipe by the side of the stone as it is now located, and that said stone is the true title stone." This stone will be referred to hereafter.  Appellant avers that by no amount of diligence could he have discovered the testimony that Towson would have given if produced at the trial, as he lived far away, and his name is not shown in the chain of title.  The petition prayed: (a) That the same be set for hearing; (b) "that 'in the exercise of its quasi equitable powers' said judgment be stricken out, without prejudice, and the case be restored to the trial docket upon withdrawal of the plaintiff's order of appeal"; (c) that upon withdrawal of said appeal by the plaintiff the court permit a dismissal, without prejudice, "upon such terms and conditions as the court deems proper," under trial rule 1 B; and (d) for further relief.  The court dismissed this petition and from this action of the court appellant also appeals.

   There is nothing in the petition to show that Simmons, who owned the property and laid out the development, told Towson that the stone in question was a monument marking a line in the courses and distances of the development, or that he saw the surveyor[***6] plant the stone. Nothing is stated to show the source of Towson's information as to this stone. This being so, the matter set out in the petition is immaterial.

   It is the policy of the law that litigation be finally terminated.  To permit appellant to dismiss the appeal, restore the case on the trial docket, and then dismiss the case, without prejudice, would be a violation of that policy.  The only purpose of such proceeding would be to enable appellant to reinstitute the case, to the end that it be tried over again, in the hope of better results to the appellant.  And the lower court could not consider the petition, after an appeal was taken to this court.

   The petition seems to be a camouflaged motion for a new trial, and from the court's action on a motion for a [*262] new trial no appeal lies, unless it can be shown that the court's action was arbitrary.  But be this as it may, we think the court's action in dismissing this petition was correct and its ruling thereon is affirmed.

   By deed dated January 7, 1919, Benjamin F. Simmons acquired from John A. Ruth and wife a tract of land situate in Anne Arundel County, containing 139.51 acres, more or less, and the following[***7] March caused a part thereof to be subdivided by Thomas H. Disney, a surveyor, and laid off into twenty lots, varying in size from 3 to 8 55/100 acres.  Lots No. 1 to No. 15, inclusive, front on the Hammonds Ferry Road, and lots No. 16 to No. 20, inclusive, front on the River Road.  The Disney plat shows lot No. 17 has a frontage on River Road of 151.5 feet and lots Nos. 18, 19 and 20 each front 150.2 feet on said road. It also shows that lot No. 16 has a frontage of 444 feet on River Road.  The northwesternmost line of lot No. 20 runs north 30 1/2 degrees west.  This is the northernmost line of the subdivision.  The dividing lines between lots Nos. 16, 17, 18 and 19 run parallel with the northernmost line of lot No. 20.  A plat thereof was made by Mr. Disney and it, together with the deed referred to, was filed among the Land Records of Anne Arundel County.  This subdivision was called "Community Farms." When a lot in this development was conveyed to a purchaser reference to the same was made to the plat, and no description of the lot was given by metes and bounds, courses and distances. The plaintiff owns lot No. 16 and the defendants own lot No. 17, as shown on the plat.

   The land[***8] involved in this dispute starts at a point at the northern end of the divisional line between these two lots, as shown on the Disney plat, and runs westerly along the River Road 19 1/2 feet and thence southeasterly along said divisional line to a point thereon, a distance of 444 feet. Appellees erected a fence along the divisional line shown by the Disney plat, and appellant sued them in this action, claiming that the true divisional line between the lots included the land in dispute and that the [*263] same is his property.  The first line in lot No. 16, as shown on the Disney plat, starts at a point on River Road, which is a projection of the divisional line between it and lot No. 17, and runs an easterly course 444 feet to a point in River Road.  The second line runs from the last point south 22 degrees 30 minutes west 446.5 feet to a stone, and from that stone the third line runs south 66 degrees [**614] 8 minutes 10 seconds each 540 feet to a point.  The fourth line runs from the last point south 10 degrees west 575 feet to the southernmost point in the divisional line between the two lots, as shown on the Disney plat. The stone at the end of the second line of lot[***9] No. 16, called for in the Disney plat, gives rise to the contention in this case.

   The appellant employed Theodore Pantaleo, a surveyor who testified in the case, to check the lines of lot No. 16.  He "tried to fit on the ground what was on the plat," and "did not go on the adjoining property at all," but "just stayed on Giles' lot." He did not check the entire description of the land comprising "Community Farms," as shown on the Disney plat. His purpose was to locate the stone at the end of the second line of lot No. 16, referred to on the Disney plat. He testified that the Disney plat was very incomplete, as far as bearings and some lines were concerned, and showed only distances and no bearings.

   In cleaning up lot No. 16 Charles Giles, the father of appellant, removed a quantity of honeysuckle and other growth and discovered a stone beside which was driven in the ground a piece of iron that looked like an old axle.  He showed this stone to Mr. Pantaleo, and he also showed to that gentleman a point in the River Road, which he said was the end of the first line of lot No. 16 as shown on the Disney plat. Starting at the stone shown him by Mr. Giles, he reversed the second line[***10] of lot No. 16 and came to a point in the road pointed out to him by Mr. Giles.  From the stone, he ran the third and fourth lines of lot No. 16 and came to the southern end of the divisional line between lots Nos. 16 and 17, which he marked [*264] by driving an iron pipe in the ground. From that point he ran the said divisional line 30 degrees north 30 minutes west 860 feet to a stone in said divisional line.  From that point on, his check differs from the divisional line as shown on the plat, and he reaches the River Road 19 feet 5 inches west of the northernmost end of the divisional line as shown on the Disney plat.

   The defendants employed Edward V. Coonan & Company to locate the line for them.  Mr. Disney, who made the original plat of "Community Farms," was associated with that firm at the time he laid off the development and made the plat thereof, and for some years prior to his death.  Mr. Sisson, a surveyor associated with Coonan & Company, and who testified for the defendants, produced in court the field book used by Mr. Disney at the time he made his original survey of "Community Farms" in March, 1919.  He started his survey at the northwesterly outline of the whole[***11] tract comprising "Community Farms," and in locating that line he started in the center of River Road, at the northwest corner of lot No. 20.  He located the westerly line of that lot from the fence and apparent line of possession there being, and from the stump of a cherry tree shown by Mr. Disney on his field book, at a point 5 feet northeast of the line and 503 feet from the road.  From thence he measured easterly down the center of River Road 150.2 feet and came to a point where the prolongation of the line of the fence between lots Nos. 19 and 20 would have intersected the center line of the road.  He then measured down the road another 150.2 feet and came to the point where the prolongation of the line of another fence between lots Nos. 18 and 19 would have intersected the center line of the road. He then measured down the road another 150.2 feet, and came to the dividing line between lots Nos. 17 and 18.  He found no fence there.  He then continued down River Road 151.5 feet and came to what he considered the northeast corner of lot No. 17, and the northwest corner of lot No. 16.  He then ran a line 21 1/4 degrees east, having allowed 1 degree 15 minutes [*265] for variation, [***12]1,304 feet to a point to the south end of the divisional line between lots Nos. 16 and 17, shown on the Disney plat, and where the iron pipe had been driven in the ground, presumably by Mr. Pantaleo.  This check of outlines of "Community Farms" corresponds exactly with the plat prepared by Mr. Disney.  It gives lots Nos. 17 to 20, inclusive, the exact frontage on River Road that the Disney plat shows, and the divisional line between lots Nos. 16 and 17, as checked by Mr. Sisson, is parallel with the divisional lines between lots Nos. 17, 18, 19 and 20, respectively, and is identical with the divisional line shown on the Disney plat.

   Pantaleo ran from the southern end of the divisional line between lots Nos. 16 and 17, as shown on the Disney plat, and along and with that line in a northwesterly direction to a point 860 feet on that line, and he says that point is 61 feet to the stone at the end of the second line of lot No. 16, as shown on the Disney plat. He calculated [**615] the distance from the said point on the divisional line to the stone, to be 61 feet. He allowed for variation, 51 minutes, while Mr. Sisson used 1 1/4 degrees, or 75 minutes. While variation of the magnetic[***13] needle changes with the years, a line which has been run on the ground never changes.  The court below said:

   "'Calls,' when they can be found, prevail over courses and distances because they have the greater certainty; but it is equally true that this rule is only a rule of construction to ascertain the intention of the parties and will not be applied when it would defeat such intention as clearly shown.  Where maps or plats are referred to in descriptions of land, they are to be regarded as incorporated into the description and they stand on the same footing as monuments, and in case of a conflict of calls the usual rules of construction are to be applied and those calls which are most certain and definite and most in accord with the true intent of the parties, are to be adopted.  (9 Corpus Juris, Sec. 143, pages 220, 221.)" It further stated: "When Mr. Simonds had Mr. Disney lay off these lots, he did so with the idea that all the lines as shown [*266]on the plat were correct, and that he expected to be able to deliver to the purchaser of each and every lot shown on the plat, the actual ground he or she purchased." See also Wood v. Hildebrand, 185 Md. 59, 42 A. 2d[***14] 919.

   If we adopt Mr. Pantaleo's survey as correct it would result in a relocation of the divisional lines between lots Nos. 17, 18, 19 and 20, as shown on the Disney plat. It would further result in the extension of lot No. 20, to the west, 19 feet 5 inches, running back to a point on its northwesternmost line 444 feet, on land of a stranger, that never was included in and a part of the "Community Farms" development.  Under these circumstances, we cannot give to Mr. Pantaleo's testimony the effect urged by the appellant.

   After the case was closed the court reopened the same to permit appellant to offer the testimony of Mr. Hall, the County Surveyor. Without discussing the testimony of this witness in detail, it is sufficient to say that the witness regarded his survey as incomplete. He abandoned the survey because the appellant would not agree to pay him the fee he required.  When asked the question: "You don't know whether your testimony helps one or the other?" he answered: "I have no idea." "Q. You don't know where the line you ran hit the road as compared with Pantaleo's and Coonan's survey?  A. I have no idea." "Q. You don't know how much land was left diRobbio on the road? [***15] A. If the pipe and stone were right, it would seem to scramble everything to the southwest of diRobbio's and Giles' corner." It is apparent that the testimony of Mr. Hall does not help in this case.

   There is grave doubt whether the stone pointed out by Mr. Giles to his surveyor is the stone referred to on the Disney plat. Disney does not call for a stone with an iron bar driven beside it, and the stone found by Mr. Giles is not shown to be an ancient monument recognized for years by the people in the community to be such.  There is no evidence in the case that Mr. Simmons, the original owner of "Community Farms," ever told [*267] anyone that the stone found by Giles was the stone referred to on the Disney plat. No one testified that he saw Mr. Disney, while making the survey, plant the stone found by Giles. Neither Mr. Giles, nor any witness called by appellant, attempts to give his source of information from which it is claimed that the stone found by Giles was the stone referred to by Mr. Disney and shown on the plat he made of "Community Farms." Marvil Package Co. v. Ginther, 154 Md. 213-221, 140 A. 95.

   Objection was made to Mr. Sisson's use of Mr. Disney's field[***16] book. The book was definitely proved to be the book that Mr. Disney used when he made the survey in 1919.  Mr. Sisson, while testifying, referred to Mr. Disney's notes in this book.  We can see no reason why this was improper, and the court was correct in overruling the objection made by appellant.  Sisson's survey confirms the original survey made by Disney.  Appellant claims that the Disney notes should have been offered in evidence, and cites Walker v. Curtis, 116 Mass. 98. The witness had Disney's original notes before him when he testified. Appellant's counsel had a right to look at them.  To all intents and purposes they were offered in evidence.  The objection upon this ground is highly technical.

   Objection was made to Mr. Sisson's testimony that there was a fence on the divisional line between lot No. 20 and lot No. 19, and between the latter lot and No. 18.  He contends that this violates the rule [**616] that no object not shown on a plat can be described in evidence, and refers to Neal v. Hopkins, 87 Md. 19, 39 A. 322; Carroll v. Norwood, 1 Har. & J. 100; Wood v. Ramsey, 71 Md. 9, 17 A. 563. In those cases defense was upon warrant, and the surveyor, [***17]in making his return to the court of his action under the warrant, accompanied the same by a plat of the property involved.  Those cases hold that a plat so made cannot be added to or changed by parol evidence.  In this case there was no warrant of resurvey.  Sisson made the survey for the appellees and he took into consideration the fences that he testified to.  [*268] We think that was proper and the court was correct in overruling the appellant's objection.

   In the case of Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 129 F. 668, 670: "The plaintiff's title rested upon a patent issued in 1894, and the description in that patent upon the survey for patent made in January, 1882."

   The court said: "A plain and unambiguous description in a written conveyance can no more be contradicted or modified by parol evidence than any other part of a written agreement.  * * * The patent in the case before us disclosed no ambiguity, and presented no conflict between its courses and distances."

   This case presents a question of ambiguity because, as testified to by Mr. Pantaleo, the Disney plat "was very incomplete as far as bearings and some lines are concerned, and only distances[***18] and no bearings were given and that it was impossible to go into the field and check the angles." We do not see that this case is an authority to sustain the objection made by appellant.

   It was argued in this court by counsel for appellant that the land in dispute was in the possession of appellant when appellees committed the alleged trespass. Apparently there was nothing at all in the way of a fence or anything else erected along the divisional line between the lots in question.  One looking at the locus in quo would be unable to tell where the divisional line laid down on the plat was, and the two lots merging at the divisional line would appear to be an undivided tract of land.  The only act relied upon to show possession in appellant was the running of a line from a point on the divisional line 444 feet to a point on the River Road 19 feet 5 inches easterly from the end of the divisional line as shown on the plat. This act did not constitute taking possession of the area in controversy.  It amounts to simply a claim that the line they ran was the correct line between the two lots, and a question of title to the disputed area is presented.  If the land [*269] in question [***19]was, in fact, a part of lot No. 17, of course there was no trespass.

   Appellant cites Section 255, Vol. 2, 4th Ed., Cooley on Torts, and Smith v. Schlink, 6 Colo. App. 228, 40 P. 478. These authorities deal with forcible entry, and appellant says that title in such an action is not inquired into. But this is not a case of forcible entry.  Such a case originates in a proceeding instituted before a justice of the peace and not in a common-law court.  The matter has been fully dealt with in the following cases, one involving forcible entry and detainer, and the other forcible detainer.  Roth v. State, 89 Md. 524, 43 A. 769, and Clark v. Vannort, 78 Md. 216, 27 A. 982.

   "It is well settled in this State that an action of trespass quare clausum fregit is available for the trial of title to land (Ridgely v. Bond, 17 Md. 22; Poe Pl., Sec. 244, and cases there cited); but when it is resorted to for that purpose 'recovery can be had only on the strength of the plaintiff's title, just as in ejectment' (New Windsor v. Stocksdale, supra.) It would be necessary in ejectment for the plaintiff to establish a legal title to the land in dispute. * * * In this form[***20] of proceeding at law, adopted for the identical purpose that would be accomplished by an ejectment suit, so far as the determination of the title is concerned, the same principle should control." West v. Pusey, 113 Md. 569, at 571, 572, 77 A. 973, 974.

   "To maintain an action of trespass quare clausum fregit, the plaintiff must either 'show title to the land on which the trespass was committed, or that he was in actual possession thereof at the time of the trespass.' See Norwood v. Shipley, 1 Har. & J. 295." Ridgely v. Bond. 17 Md. 14. See Ditto v. Wolf, 153 Md. 449, 138 A. 331.

   As appellant has shown neither a right of possession nor title to the land in question, the judgment below will be affirmed.
 
   Judgment affirmed, with costs. 

BENJAMIN F. POPHAM, et al. v. CONSERVATION COMMISSION,DEPARTMENT OF TIDEWATER FISHERIES, et al. 
No. 67, October Term, 1945
 
Court of Appeals of Maryland
 
186 Md. 62; 46 A.2d 184; 1946 Md. LEXIS 179

 March  13, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  oyster, bed, barren, bottom, resurvey, chart, lease, classified, livelihood, protest, waters, natural growth, reclassify, resort, map, oyster bar, clerk, depleted, resident, quantity, leased, contemporaneous construction, contemplate, resurveyed, re-examine, delineated, tributaries, asserting, surveyed, gaining

COUNSEL: Emanuel Klawans and Wilbur R. Dulin for the appellants.

   T. Barton Harrington, Assistant Attorney General, with whom were William Curran, Attorney General, and Marvin I. Anderson, State's Attorney for Anne Arundel County, on the brief, for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Grason, Henderson, and Markell, JJ.  Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*64] [**184] On February 27, 1945, Samuel J. Carr, a resident of Edgewater, Maryland, filed an application for lease of a certain area with the Department of Tidewater Fisheries of the State of Maryland (herein referred to as Department).  This area comprised eight acres of ground located in the Rhode River and in proximity of High Island, in the waters of Anne Arundel County, which area was marked by placing thereon not less than four stakes bearing Carr's name.  This application was duly published, warning any persons who desired to do so to file protests against leasing this area within thirty days from[***4] March 22, 1945.  Thereafter, within the time limited by the advertisement, Benjamin F. Popham, George [**185] T. Gardner and Allen Dawson filed a protest in the Circuit Court for Anne Arundel County against leasing this area, alleging that they are residents of Anne Arundel County, Maryland, and asserting: (1) That the said ground is a natural oyster rock or bed; (2) that the said ground is classified by the Department as a natural [*65]bar or bed; (3) that the application is null and void because the procedure required by law was not followed; (4) and for other reasons to be shown at the hearing.

   An answer was filed to this protest by the gentlemen constituting the Conservation Commission Department of Tidewater Fisheries: (1) Neither admitting nor denying that the petitioners are residents of Anne Arundel County; (2) denying the allegation in paragraph one of the protest; (3) denying the allegation in paragraph two of the protest; (4) denying the allegation in paragraph three of the protest and asserting that the procedure required by law was strictly followed; (5) asserting that the ground described in the petition was classified in 1906 as a natural oyster bar, but that, [***5] in conformity with the law, it was resurveyed and reclassified by agents of the Department on February 27, 1945, and determined to be a barren bottom; "that the charts required to be filed by law in the office of the Clerk of the Circuit Court for Anne Arundel County have not yet been filed, as a period of ninety days has not elapsed between the time of the survey and the time permitted by law in which said amendments may be filed with the Clerk." Answer was also filed by Carr, which need not be set out.

   On March 27, 1945, Charles Witt, a resident of this State, filed an application with the Department to lease seven acres of ground located under the waters of the State of Maryland, which area had been marked by placing four stakes at the respective corners thereof, bearing the name of Witt, the area being described as: "located in Rhode River, northerly and abreast of Locust Point; in the waters of Anne Arundel County." This application for lease was duly published, warning any who desired to protest to file their protest in the Circuit Court for Anne Arundel County within ninety days from April 19, 1945. The same gentlemen who protested in Carr's case protested in Witt's case, [***6]and for the same identical reasons asserted in Carr's case.  The Department's answer is identical with the answer filed in Carr's [*66] case. Witt also filed an answer, which we need not set out.

   In this state of the matter the law required the clerk to docket a suit at law in which the protestants are plaintiffs and the Department is the defendant, and the judge to pass an order directing summons to issue for the defendant as is required in actions at law, returnable to a day named in the order.  The hearing on the matter in the Circuit Court shall be before a jury, unless a jury trial be waived by the parties, in which event the hearing shall be before any judge or judges of said court with an appeal to this Court from a judgment rendered below within ninety days thereafter, in which event this Court shall have power to review all questions of fact or law involved.  Acts of 1945, Ch. 929, Sec. 12 (j).

   A jury trial was waived and these cases were heard together by the court, without the aid of a jury.  They were heard by the court on May 15, 1945, at which time Article 72, Flack's Code, 1939, and amendments thereto were in effect.  The judgment in each case was rendered on[***7] June 14, 1945. Between the time these cases were heard by the court and the rendition of the judgments therein, the Legislature passed the Act of 1945, Chapter 929, effective June 1, 1945, changing, in certain respects, the provisions of Article 72.  In this situation the Act of 1945, Chapter 929, superseded Article 72 in so far as it amended same, and its provisions governed and controlled the cases at bar as the existing law.  Munroe v. Wells, 83 Md. 505, 35 A. 142; Meloy v. Scott, 83 Md. 375, 376, 35 A. 20; Turner v. Bryan, 83 Md. 373, 374, 35 A. 21; State of Md. v. American Bonding Co. et al., 128 Md. 268, 97 A. 529; Day v. Day, 22 Md. 530; Wade et al. v. St. Mary's Industrial School, 43 Md. 178; Chesapeake & O. Canal Co. v. Western Maryland R. Co., 99 Md. 570, 58 A. 34; Cocherham et ux. v. Children's Aid Society of Cecil Co., 185 Md. 97, 43 A. 2d 197.

   Thereafter there was filed, in each case, a motion to strike out the respective judgments, which, after hearing [*67] thereon, were overruled and the judge below wrote an opinion in the cases, wherein he considered the law as changed by the Act of 1945 and came to the conclusion that the applications [***8]should be granted.  Thus the lower court applied the current law to the facts of the cases.  The court then amended its judgment in each case by striking therefrom the [**186] words "or bed within the purview and meaning of Section 93 of Article 72 of Flack's Annotated Code of Public General Laws of Maryland, title 'Oysters,' sub-title 'Oyster Culture'." This action was taken on July 12, 1945, from which action an appeal was taken in each case.  By these judgments the court held that the areas in question were not natural bars at the time of the entry of the judgments.

   The appellants, in their brief, contend that the decision to reclassify the areas from natural beds to barren bottoms is illegal; that receiving applications for leases of areas while the public records still show them as natural beds, excluded from leasing, is invalid procedure; that the applications and public notice are insufficient in the description of the areas to be leased; and that the statutory requirement that a copy of the chart be filed in the Circuit Court for Anne Arundel County has not been complied with.  The only question pressed in argument before this Court was the authority of the Department[***9] to declare an area to be a barren bottom, and if so found, the power of the Department to lease the same.  The other points referred to were not pressed in argument before this Court, and need not be considered, except to say that we have reviewed the same and think that the court below was correct in its conclusions thereon.

   It is the contention of appellants that the General Assembly of Maryland has not empowered the Department to lease a depleted oyster bed or bar, although the facts show, at a given date, it is a barren bottom. Appellees challenge this contention, and assert the Department has such power and the courts can review its finding, and [*68] the finding of a court is final.  Appellants assert that the word "resurvey," contained in Section 12 (c), Acts of 1945, Chapter 929, is intended to limit the Department to the determination of the actual area of a natural bar.  The word "resurvey," it is contended, does not give the Department power to reclassify a bar heretofore classified as a natural bar, and to determine that at a given time it has ceased to be such and has become a barren bottom. The contention is that once a natural bar always a natural bar, notwithstanding[***10] a given area has become so depleted that no oysters can be found thereon.

   Appellees assert that the word "resurvey" was not intended by the Legislature to have such a restricted meaning.  They say that the word in the Act means that the Department has power to determine as a fact whether such an area heretofore classified as a natural bar is a barren bottom.

    Section 86 of Chapter 711 of the Acts of 1906 required the Board of Shell Fish Commissioners (the predecessor of the Conservation Commission of Department of Tidewater Fisheries) to make an actual survey of the natural beds of the State and to delineate the boundaries thereof on maps and charts, and to cause one copy of each to be filed with the Clerk of the Circuit Court of the appropriate county.  And Section 89 of that Act required the Board to conduct a survey with the assistance of the U. S. Coast and Geodetic Survey and the U. S. Fish Commission.  The Board was required to make a written report and cause it to be published in pamphlet form, and to file a copy thereof with the clerk of the appropriate Circuit Court where the particular map or chart was filed.  This survey was completed and charts and reports were published[***11] and filed. 

   Section 119 of that Act required the old Board of Shell Fish Commissioners to prepare an annual report of its activities and to present it to the General Assembly.  All ground not delineated on the map as a natural bar could [*69] be leased. This Act did not contemplate any change of areas delineated as natural bars on the map directed to be made.  It was found that the map prepared and filed under the provision of this Act did not include all of the natural bars in the waters of the State, and one of the reasons for the passage of the Act of 1914, Chapter 265, was to correct this situation.  That Act provided, in Section 83: "The term 'natural beds or bars' wherever used in this Act shall hereafter be construed to mean and include all oyster beds and bars under any of the waters of this State whereon the natural growth of oysters is of such abundance that the public have successfully resorted to such beds or bars for a livelihood, whether continuously or at intervals, during any oyster season within five years prior to the time of filing of the application for a lease of the area in question, or if no application has been made for a lease of the area in question, [***12] then within five years prior to the making of the resurvey under Section 94-A, or the filing of a petition under Section 94-B of this Act, provided that the actual condition of the area in question at any time [**187] within said respective periods of five years or up to the date of hearing shall be taken into consideration in determining whether or not said area is a natural bed or bar, as above defined."

   Section 103 of that Act provided for the publication of the application for lease. These sections of that Act were codified in the Codes of 1912, 1924 and 1939.  The contemporaneous construction of the old Board of Shell Fish Commissioners was that it had power under the Act of 1914 to re-examine and reclassify at any time, upon its own initiative, any land, natural or barren, except leased land.

   "The provision giving the Shell Fish Commissioners full initiative to make new surveys at any time, coupled with the provisions requiring advertisement of each application and an opportunity for judicial classification, practically wipes out the old survey.  * * * The old [*70] charts and the old boundary lines remain, it is true, but they are subject to change either by throwing [***13]new areas open to lease or including new areas within the naturalbar territory at any time, and no area can be leased until the application has been advertised and an opportunity for judicial classification given.  As an actual matter of fact any citizen of Maryland may today apply for a lease of any land underlying the waters of the Chesapeake Bay and its tributaries without regard to any previous survey.  If it has been previously classified as natural bar the Commission may re-examine it, and if it concludes that it is now depleted, modify the charts and advertise the application." "Seventh Report" of the Shell Fish Commissioners, 1914 and 1915, dated January 11, 1916.

   This report was presented to the General Assembly as required by Section 119, Chapter 711, of the Acts of 1906.  Flack's Code, 1939, Art. 72, Sec. 136.  See Third (1925), Sixth (1928) and Seventh (1929) Annual Reports of the Conservation Department.

   Attorney General Armstrong, in 1922, said: "I think also that the definition noted above contemplates that a bottom natural in one year might not be natural in another year.  If, for instance, the last successful resort to a given bar for a livelihood was in the oyster[***14] season of 1916, such a bar would be held in 1921 to be a natural bar, but in 1922 barren. Section 96A also contemplates a resurvey at any time.  The obvious purpose is to keep the charts showing the natural bars accurate indications of the real character of the bottom." 7 Report and Official Opinions of Attorney General, page 61.

   On May 4, 1928, Attorney General Robinson said: "I am, therefore, of the opinion that you may resurvey any area in the bay or its tributaries, and if you find the facts warrant it, may open for lease the portions thereof now classified as natural bars, but which are in fact barren bottoms, thus showing that the natural bars are [*71] in fact now not correctly located on the charts." 13 Report and Official Opinions of Attorney General, page 60.

   It thus appears that the old Board of Shell Fish Commissioners and its successor have construed the Act of 1914, Chapter 265, as conferring the right on the old Board of Shell Fish Commissioners, now the Conservation Commission of the Department of Tidewater Fisheries, to reclassify what has been delineated on the official chart as a natural bar, a barren bottom. This construction is given greater force[***15] because of the opinions of the Attorney Generals and the fact that the reports of the old Board of Shell Fish Commissioners and its successor have, from time to time, been made to the Legislature and that body has not seen fit to interfere with such construction by annulling it through legislation.  This contemporaneous construction, long continued under such circumstances, has the force of law.  Arnreich v. State, 150 Md. 91, 132 A. 430; Bouse v. Hutzler, 180 Md. 682, 26 A. 2d 757, 141 A. L. R. 843; American-Stewart Distillery, Inc. v. Stewart Distilling Co., 168 Md. 212, 177 A. 473; Baltimore City v. Johnson, 96 Md. 737, 743, 54 A. 646, 61 L. R. A. 568; Mayor & City Council of Baltimore v. Machen, 132 Md. 618, 624, 104 A. 175; Burroughs Adding Machine Co. v. State, 146 Md. 192, at page 198, 126 A. 127; United States v. American Trucking As'n, 310 U.S. 534, 60 S. Ct. 1059, 84 L. Ed. 1345; Read Drug & Chemical Co. v. Claypoole, 165 Md. 250, at page 257, 166 A. 742; Leitch v. Gaither, 151 Md. 167, at page 176, 134 A. 317.

   In this case appellants urge that the word "resurvey" should be given a limited and restricted meaning and that it was not intended[***16] to confer power upon the Department to reclassify what was before a natural bar as a barren bottom. The contemporaneous construction of the word "resurvey," used in the statue, followed [**188] throughout the years by the officials, apparently acquiesced in by the Legislature, will, under the circumstances of this case, be regarded as established law that the [*72] Department had the right to determine at a given time whether a bar theretofore classified as natural is in fact a barren bottom, and if so it might, in accordance with the provisions of law, be leased by the Department to an individual for the purpose of planting and cultivating oysters thereon.  We think this is the correct construction of the law existing before the Act of 1945, Chapter 929.

   Does the Act of 1945, Chapter 929, change the law as we have found it to be prior to its passage?  It is contended that the word "resurvey," as found in that Act, should not be given the same construction which we have given it prior to the enactment of the Act of 1945, Chapter 929.  The Act of 1906, Sections 86 and 89, required "a true and accurate survey of the natural beds be made." The Act of 1914, Chapter 265, Section[***17] 98, provided as follows: "After the survey or resurvey provided for herein shall have been completed, it shall be the duty of the Board of Shell Fish Commissioners to lease, in the name of the State of Maryland, tracts or parcels of land beneath the waters of this State, whether within the limits of the counties or elsewhere, in the area to be opened for oyster culture, according to the provisions of this Act."

   Section 94-A of that Act provides that the Board of Shell Fish Commissioners may at any time resurvey and re-examine areas of the Chesapeake Bay and its tributaries for the purpose of correcting surveys theretofore made by them, and if upon such resurvey the Board shall find that natural beds or bars have been incorrectly located they shall prepare a revised or amended chart showing the natural beds or bars thus resurveyed.

   Section 94-B provides that three or more residents of the State may at any time before January 1, 1915, file a petition in writing that certain areas are natural bars and have been excluded from the survey or resurvey of natural bars, and provides for a hearing before a Circuit Court and that the court shall decide whether the [*73] area described[***18] in the petition is or not a natural bar as defined by Section 83 of that Act, with a right of appeal to this Court.  If the final decision is that the area in question is a natural bar, amended maps shall be made and filed.

   Section 12 (c) of Chapter 929 of the Act of 1945 requires the Department to make a resurvey of natural oyster beds. In so doing, the Department must show on its charts: "The correct location and bounds of all natural oyster bars * * * then existing in the area being surveyed." We think the authority conferred upon the Court by Section 94-B of the Acts of 1914, Chapter 265, to determine whether or not a given area was a natural bar, also conferred upon it the power to determine that it was not a natural bar, but a barren bottom, and that the words in Section 94-A, that the Board of Shell Fish Commissioners shall "resurvey and reexamine" such area, meant that it was to determine as a matter of fact whether an area was a natural bar or barren bottom. And the court hearing such a case was to determine the same question of fact, and if the Commissioners were affirmed by the court in their reclassification of a given area, the official chart should be marked accordingly. [***19] Again, we think that the words used in Section 12 (c) of the Acts of 1945, Chapter 929, that upon a resurvey the Department must show "the correct location and bounds of all natural oyster bars * * * then existing in the area being surveyed" mean that if it found an area theretofore classified as a natural bar, at the time of the survey is in fact a barren bottom, the official chart would be corrected accordingly, and the area then being a barren bottom would be opened to lease by one applying therefor to the Board.  Prior to the Act of 1914 there was no definition of a "natural bar." That Act, by Section 83, defined a natural bar, as we have heretofore observed.

    The Act of 1906, Chapter 711, did not define a natural bar.  The old Board of Shell Fish Commissioners followed [*74] the standard of a natural bar as defined by Judge Goldsborough, in the Circuit Court for Dorchester County, in the case of Windsor and Todd v. Moore, in 1881.  That opinion, in part, said:

   "There are large and numerous tracts where oysters of natural growth may be found in moderate numbers, but not in quantities sufficient to make it profitable to catch them; and yet where oysters may be successfully[***20] planted and propagated.  In my opinion, these cannot be called natural bars or beds of oysters, within the [**189] meaning of the Act of Assembly, and it is just such lands as these that the State meant to allow to be taken up under the provisions of the above mentioned section of the Act.

   "But there is still another class of lands where oysters grow naturally and in large quantities, and to which the public are now and have been for many years in the habit of resorting with a view to earning a livelihood by catching this natural growth; and here, I think, is the true test of the whole question. Land cannot be said to be a natural oyster bar or bed merely because oysters are scattered here and there upon it, and because if planted they will readily live and thrive there; but whenever the natural growth is so thick and abundant and that the public resort to it for a livelihood, it is a natural oyster bar or bed, and comes within the above quoted restriction in the law, and cannot be located or appropriated by any individual."

   We think that the failure to classify a natural bar in the current Act results in restoring the definition of Judge Goldsborough, and when such a question[***21] arises his definition of a natural bar may be resorted to by the Department for guidance in determining the matter.  It was followed before the Act of 1914 by the old Board of Shell Fish Commissioners.  The lower court applied the definition of a natural bar as defined by the Act of 1914, and as codified in Article 72, Section 93, Flack's Code, 1939, which is substantially Judge Goldsborough's definition.

   [*75] Without a full analysis of the testimony, it is sufficient to say that the areas in question were so depleted that the public did not resort thereto for the purpose of gaining a livelihood. In the last five years a few people have taken a few oysters from these bars, but the quantity of oysters taken was small, and no catch could be made in quantities that would afford one a livelihood. Oystermen passed these bars and went out into the bay and worked beds where they could tong oysters in quantities. Some of these men who caught oysters out in the bay brought them in and stored them on the bars in question. This was for the purpose of holding these oysters until they could be sold for a higher price, when they would be taken up and sold.  These men really used these [***22] bars as storehouses for oysters they caught out in the bay.  It is hard to believe that one would store oysters on these bars if they contained oysters of natural growth in such quantities that the public would resort thereto for the purpose of gaining a livelihood, because if such were the case, the stored oysters would be taken along with the oysters grown naturally on the bars.

   Most of the witnesses adduced by the protestants believed in the idea, once a natural bar always a natural bar, notwithstanding that a natural bar may become a barren bottom. Appellants contend that the examination made by the engineer of the Department, to determine whether the bars were barren bottom, was not a fair examination because the applicants assisted in this examination.  But the examination was conducted by the engineer of the Department, assisted by Captain Hartge, deputy commander of the police boat of the Department, and we think that the testimony shows that the examination was fairly conducted.  As this disposes of these cases, it will not be necessary to consider other matters raised by the appellees.

   Judgment affirmed, with costs. 

HENRY HUBERT CORENS v. STATE OF MARYLAND 
No. 60, October Term, 1945
 
Court of Appeals of Maryland
 
185 Md. 561; 45 A.2d 340; 1946 Md. LEXIS 159

 January  9, 1946, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  photograph, circumstantial evidence, basement, murder, woman, trays, juror, blood, tissue, prospective juror, cross-examination, homicide, recalled, intimate, box, ears, capital punishment, convict, chemist, killed, night, conscientious, scruple, laundry, analyses, motive, voir dire examination, voir dire, admissible, murdered

COUNSEL: George B. Woelfel and Harold C. Smith for the appellant.

   William Curran, Attorney General, and Joseph B. Simpson, Jr., State's Attorney for Montgomery County, with whom were Marvin I. Anderson, State's Attorney for Anne Arundel County, and J. Edgar Harvey, Assistant Attorney-General, on the brief, for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*563] [**343] Henry Hubert Corens, an automobile painter and mechanic, of Bethesda, 44 years old, was indicted by the Grand Jury of Montgomery County for the murder of his wife, Pearl W. Corens, on February [***4]12, 1945.  The case was removed to the Circuit Court for Anne Arundel County, where he was tried and found guilty of murder in the second degree.  On May 28 he was sentenced by the court to confinement in the Maryland Penitentiary for the period of 18 years.  From the judgment he entered an appeal to this Court.

   When the case came on for trial the State's Attorney requested the court to ask each prospective juror on his voir dire whether he would be willing to convict on circumstantial evidence in a case where the penalty might be death, inasmuch as the State expected to prove the commission of the crime by circumstantial evidence. Over the defendant's objection the court asked each juror the following question: "Have you any such conscientious scruple or opinions as would prevent or preclude you from rendering a verdict of guilty in a case where the penalty prescribed by law may be death upon what is commonly called circumstantial evidence?" It is contended [*564] that the question had a prejudicial effect by leading the jurors to believe that the judge had already decided that defendant was guilty and that circumstantial evidence was sufficient to convict. In Maryland[***5] there is no statute or precise rule prescribing the questions which should be asked a prospective juror on his voir dire in order to determine his qualification, but the subject is left largely to the sound discretion of the court in each particular case.  In the exercise of that discretion, the trial judge should adapt the questions to the needs of each case in the effort to secure an impartial jury.  In Whittemore v. State, 151 Md. 309, 314, 134 A. 322, Chief Judge Bond stated the broad rule that any circumstances which may reasonably be regarded as rendering a person unfitted for jury service may be made the subject of questions and a challenge for cause. In other words, an examination of a prospective juror on his voir dire is proper as long as it is conducted strictly within the right to discover the state of mind of the juror in respect to the matter in hand or any collateral matter reasonably liable to unduly influence him.  It is unquestioned, for instance, that a person who has conscientious scruples against capital punishment cannot properly examine the evidence in a prosecution for [**344] a crime for which capital punishment may be imposed, because he does[***6] not stand impartial between the prisoner and the State.  If it develops on the voir dire examination of a prospective juror that he has such conscientious scruples, the State may challenge him for cause.  State v. Ward, 39 Vt. 225, 231; Commonwealth v. Bentley, 287 Pa. 539, 135 A. 310; People v. Ah Chung, 54 Cal. 398. We likewise hold that the State has the right to challenge a juror in a capital case on the ground that he would not be willing to convict on circumstantial evidence. Cluverius v. Commonwealth, 81 Va. 787; Grant v. State, 67 Texas Cr. R. 155, 148 S. W. 760, 42 L. R. A., N. S., 428; Hochheimer, Criminal Law, 2d Ed., Sec. 134; 31 Am. Jur., Jury, Sec. 159.  We are unable to agree with the contention that, merely because the prospective jurors [*565] were asked on voir dire examination to state their views on circumstantial evidence and capital punishment, they were thereby induced to believe that the judge was convinced before the trial began that the accused was guilty.

   Defendant testified that he went to bed in his home on Gladwyne Drive about 9.30 o'clock on Monday night, February 12, and was awakened shortly before midnight[***7] by the radio; that he asked his wife to turn the radio down and then went back to bed; that a few minutes later she came into his room and angrily demanded whiskey, and hopped on him and scratched his face.  "By that time," he said, "I sat up in bed and I slapped at her.  She must have picked up something, * * * it must have been the heel of a shoe.  She struck me here (indicating the forehead) and it knocked me out." According to his story, he regained consciousness within a few minutes and searched the house but she had disappeared.  In the morning his right eye was bloodshot, his forehead swollen, his face scratched, and his lip cut.  As the day was rainy and bad for painting, he stayed at home until noon; then went to a restaurant for lunch; returned home about 1.30; remained there until about 4.30; went to a moving picture theatre; drank several glasses of beer about 8.30; went home again and retired about 9.30.  On Wednesday, February 14, he went back to work; but in the afternoon Mrs. Corens' brother, Ralph Walker, and his wife called to see him, and requested him to accompany them to the police station to report the disappearance.  Detective John Leahy went to the home and[***8] examined the premises, and Corens promised to co-operate with him.  During the following two weeks Corens lived alone.

   On February 27 a woman's head was found by a fisherman on the Seneca Road in Fairfax County, Virginia, about a half mile south of the Potomac.  After Officer Richard F. Utz, of Fairfax County, was given permission by the coroner to take the head to the police in Montgomery County, it was identified by three dentists as the head of Mrs. Corens.  An examination disclosed [*566] that the head had been severed from the body by a saw.  That night Corens was called to the police station, where he was informed that his wife's head had been found.  He retorted: "You would have to show it to me.  I won't believe it." Detective Leahy made a midnight trip to the Corens home to search the basement again. Under the work bench he found a hack saw.  He took this to Dr. Briggs J. White, a chemist of the Federal Bureau of Investigation, who found upon it stains of human blood. Defendant was questioned until after 4 A. M., charged with murder, and taken to the jail in Rockville.  On the evening of February 28 he was brought to the State's Attorney's office, where he was permitted[***9] to see the woman's head in a basket.

   The first objection to rulings on evidence arises from the exclusion of a question which the defense directed to Officer Utz, after he had narrated about the finding of the woman's head on the Seneca Road in Virginia.  This question was: "Did you make any effort to ascertain or find out whether or not the person whose head was found has been killed or murdered around that section of the country?" Defendant's contention is that, if any part of the body of a resident of Maryland is found in another State, the police in that State ought to make an investigation, and that at the trial of this case he should have been permitted to show that no investigation had been made by Officer Utz.  The law is established in this State that the method, scope and extent of cross-examination are within the trial court's discretion, and in the absence of an abuse of discretion will not be interfered with on appeal.  We also accept the rule that cross-examination can relate only to the facts and incidents connected with matters stated in the direct examination of the witness, and if a party desires to examine [**345] a witness as to other matters, he must do so[***10] by making the witness his own.  Marino v. State, 171 Md. 104, 187 A. 858; Armiger v. Baltimore Transit Co., 173 Md. 416, 196 A. 111. The statement of Officer Utz that the head was found in Fairfax County was not controverted, [*567]and no benefit could possibly be gained by cross-examining the witness in reference to the statement.  Speaking of the question in dispute, the trial judge said: "That would only be negative evidence.  Suppose he did or suppose he didn't." If counsel for the defense thought that Mrs. Corens had been murdered in Virginia, and that Officer Utz had any information on the subject, they could have called him as a witness for the defense.

   Captain James McAuliffe, of the Montgomery County police, was asked to repeat his conversation with the defendant at the time of his arrest.  The witness replied that he asked defendant whether he had ever been in Virginia, and defendant said "he had been across Chain Bridge, and a very short distance after he crossed Chain Bridge he came back." Defendant says the question should have specified the time of the trip, as his alleged reply may have misled the jury to believe that he had crossed the Potomac on the[***11] night of February 12, leading them to the inference that he carried his wife's body with him.  What happened at the trial, however, was that when his attorney interrupted the examination to inquire when it was that he "went over there to Virginia," the State's Attorney requested that he be allowed to conduct the direct examination without interruption.  Since defendant had the privilege of cross-examination, we find no reversible error in the testimony.  The judge assured the defense in plain words: "You have a right in your cross-examination to ask all you want."

   Defendant made objection when the State recalled Dr. J. W. Bird to the witness stand to explain a statement he had made on a previous day of the trial. Dr. Bird had testified that he knew the head was a woman's head because of the scalp, ears, lower jaw and hair.  After other witnesses testified that there were no ears on the head, Dr. Bird was recalled and asked: "Did you mean to create the impression to the court and jury whether there were ears on the head you examined?" Defendant argues that Dr. Bird should not have been recalled to explain what he meant, as the jurors themselves had the [*568] right to determine[***12] from his testimony the impression that he intended to create.  But the law is clear that whether a witness, after his examination has been completed, may be recalled, either for explaining what his testimony meant or giving additional testimony, is a matter resting solely in the discretion of the trial court, and from the exercise of that discretion no appeal will lie. Schwartze v. Yearly, 31 Md. 270, 276; Green v. Ford, 35 Md. 82, 88; 6 Wigmore on Evidence, 3d Ed., Sec. 1898.  Nevertheless, it is inconceivable that defendant was injured in any way by the doctor's explanation.  He merely repeated that the ears had been destroyed along with the nose and eyes and other soft structures of the head.

   In addition to the hack saw, a number of articles were taken out of the Corens home to be examined by Dr. White.  These also were found to contain stains of human blood or fatty tissue. Dr. White testified that he found blood stains on the laundry trays, the Oxydol soap powder box, the wall behind the trays, the sewer pipe near the trays, the concrete floor of the basement, on a piece of paper from the basement, on the gas furnace, on the handle of a spade, on the handle of a[***13] mop, on the andirons, among the ashes from the fireplace trap containing a piece of clothing which Mrs. Corens had worn, on the blanket, sheet and pillow case from Corens' bed, and from a towel from his automobile.  Dr. White also testified that he found human body tissue on the laundry trays, on the boards near the trays, on the sewer pipe, and on the clothes hanger.  Defendant did not dispute that the exhibits were found in his home.  In fact, he attempted to account for the blood spots and the tissue which the chemist found from the analyses. He swore that his finger was caught behind an automobile in December, 1944, and as a result of the accident he was off from work for more than a month, during which time he was often in the basement, and one night when he hit his finger the blood dripped upon the floor and his slippers.  He also said that in January, 1945, a rabbit ran into his yard and he killed it with a stick and skinned [*569] it in the basement "right there by the laundry trays." He further said that he killed quite a few chickens in the basement. There is also no objection to the findings of Dr. White from his chemical analyses. [**346] We accept the rule[***14] that facts ascertained by chemical analysis of the blood of a human being or a part of the human body may be stated by a competent chemist, provided that the thing analyzed is satisfactorily identified.  Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 29 N. E. 2d 495; 22 C. J., Evidence, Sec. 741; 32 C. J. S., Evidence, Sec. 546.

    Defendant, however, objects to the admission in evidence of the trays and other articles for the reason that the amount of blood and human tissue in some instances was so small that it was consumed in the analysis, and therefore the exhibits, which no longer contained any blood or tissue, violated the best evidence rule, especially since he was not present when the analyses were made. The fundamental rule underlying all legal proceedings is that the best evidence of which the case is capable must be produced.  This rule means that secondary or inferior evidence shall not be substituted for evidence of a higher nature. "The reason of the rule," as Justice Wayne explained in United States v. Wood, 14 Pet. 430, 443, 10 L. Ed. 527, 534, "is, that an attempt to substitute the inferior for the higher, implies that the higher would give[***15] a different aspect to the case of the party introducing the lesser." When production of the best evidence is shown to be beyond the power of a party not at fault, the rule is satisfied with the best then obtainable.  Secondary evidence is admissible to prove records that have been lost or destroyed without the fault of the party tendering proof of the same after it has been made to appear to the court that efforts have been made in good faith to produce them. It cannot be doubted that parol evidence is admissible to prove the existence and loss of a record.  Higgins v. Reed, 8 Iowa 298, 74 Am. Dec. 305; 1 Wharton, Criminal Evidence, 11th Ed., Secs. 389, 390.  Further, as clearly stated by the Supreme Court [*570] of Tennessee in Moore v. State, 96 Tenn. 209, 33 S. W. 1046, 1047, the fact that an experiment, evidence of which is sought to be introduced for one litigant, was made in the absence of and without notice to the adverse litigant, does not render the evidence incompetent, but the circumstances under which the experiment was made may be considered by the jury as affecting the weight of the evidence.  Further, we do not think the jury could have been misled[***16] by the number of boxes, which were used by the chemist to contain the blood and tissue from the articles taken from the home, and which were placed upon a table in view of the jury.  It was carefully explained to the jury what each box contained, and we do not believe the boxes improperly influenced the jury to the prejudice of the defendant.

   Defendant also objected to the introduction in evidence of certain photographs, which were taken at his home on March 3.  He says that, since they were not taken until three weeks after the homicide, the court could not be positive that they were correct representations of the premises at the time of the homicide, as visitors had been in his home between February 12 and March 3. It is an unquestioned rule that photographs may be introduced in evidence, either in a civil or criminal proceeding, to illustrate the description of a person, place, or object so as to explain or apply the evidence.  Snowden v. State, 133 Md. 624, 631, 106 A. 5. Whether a photograph is of any practical value in a particular case is a preliminary question for the trial court, and the court's exercise of discretion in determining the question is not open to review[***17] unless plainly arbitrary.  Of course, photographs offered as exhibits should be correct representations of the person, place or object which they purport to represent at the time when the appearance of such person, place or object is relevant to the inquiry in connection with which the photographs are offered.  If there is evidence of any change in condition or surroundings subsequent to the time of the occurrence in question, such change may lead to the exclusion [*571] of the photograph, and certainly should do so whenever the substantial identity of the condition or surroundings has not been preserved.  Consolidated Gas, Electric Light & Power Co. v. State, to Use of Smith, 109 Md. 186, 199, 200, 72 A. 651; Wimpling v. State, 171 Md. 362, 189 A. 248; Smith v. State, 182 Md. 176, 32 A. 2d 863, Undeniably an examination or photograph of a person or scene immediately after the commission of a crime is more satisfactory and conclusive than one made some time afterwards; but the mere fact that the examination or photograph is made some time afterwards is not in itself a reason why the result should be excluded, unless the interval is so great that the jury could not[***18] reasonably find whether the condition is to be attributed to ante-mortem or post-mortem [**347] causes.  Williams v. State, 64 Md. 384, 391, 1 A. 887. In the case at bar there was no evidence of any change in the condition of the basement or other part of the Corens house between February 12 and March 3.  Therefore, we cannot find any error in the admission of the photographs. The facts in this case are entirely different from Pearson v. State, 182 Md. 1, 9, 31 A. 2d 624, where an unexplained failure to produce the first photograph taken of the prosecuting witness was held to destroy the foundation for admitting another photograph taken later.  The weight of the evidence in this case was for the jury, to be determined by them in connection with all the facts and circumstances of the case.

   Defendant objected to the admission of two letters, which he wrote to his girl friend, Thelma Pack, at Petersburg, Tennessee, in November, 1944.  He claims that his letters were irrelevant.  The law is established that in a prosecution of a husband for the murder of his wife, the State may show by his conduct and statements a want of affection for his wife, and a desire to get rid of[***19] her, or that he was infatuated with some other woman or that he maintained intimate relations with her.  State v. English, 201 N. C. 295, 159 S. E. 318; Duncan v. State, 88 Ala. 31, 7 So. 104; Conner v. United States, 9 Cir., 7 F. [*572] 2d 313. Accordingly, in the trial of a husband for the murder of his wife, letters to or from another woman, with whom he was intimate, are admissible to show a motive for the crime.  State v. MacFarland, 83 N. J. L. 474, 83 A. 993, Ann. Cas. 1914B, 782; Parks v. State, 124 Tex. Cr. R. 405, 63 S. W. 2d 301; Shepard v. United States, 10 Cir., 62 F. 2d. 683. At the trial of this case defendant admitted that he had been intimate for about seven months with Miss Pack, who was 23 years old, and then employed in Washington.  He took her to dances and other amusements several times a week, gave her jewelry, asked her to marry him, and pretended that he was divorced.  It also appeared that he had been anxious for some time to obtain a divorce from his wife, but she blocked a decree.  In our opinion the trial court did not go beyond the limits of judicial discretion in admitting the letters in evidence, even though written three[***20] months before the homicide. The question of how strained the relations were between the defendant and his wife was to be settled largely by circumstantial evidence, and any facts and circumstances which tended to throw light thereon and to show a motive for the crime were admissible in evidence. At stated in Thiede v. People of Territory of Utah, 159 U.S. 510, 16 S. Ct. 62, 65, 40 L. Ed. 237, great latitude should be allowed in the reception of circumstantial evidence, and where direct evidence is wanting, the more the jury can see of the surrounding facts and circumstances, the more correct their judgment is likely to be.  It is recognized that, where the inquiry relates to the relations between a husband and his wife, some of the details may be somewhat minute and seemingly of little or no significance.  But letters which, standing alone, may seem to be of slight importance might in connection with all the other testimony in the case have a bearing upon the existence of ill feeling toward the deceased wife and be relevant and material to show motive for the crime.  Commonwealth v. Mercier, 257 Mass. 353, 153 N. E. 834, 839.

   [*573] Finally, defendant says that the[***21] trial court committed error in refusing to have the jury visit his home to view the scene where the State claimed the crime was committed.  He argues that the jury were entitled to such a view, especially since the evidence was circumstantial.  But we must follow the general rule, accepted both in this country and in England, that the granting or refusing of a request to allow the jury to view the premises where a crime is alleged to have been committed is within the discretion of the trial court.  Commonwealth v. Chance, 174 Mass. 245, 54 N. E. 551, 75 Am. St. Rep. 306. In support of this rule, Professor Wigmore wrote that the inconvenience of adjourning court until a view can be had, or of postponing the trial for the purpose, may suffice to overcome the advantages of a view, particularly when the nature of the issue or the object to be viewed renders the view of small consequence.  4 Wigmore on Evidence, 3d Ed., Sec. 1164.

   As we find no reversible error in the rulings of the trial court, the judgment must be affirmed.

   Judgment affirmed, with costs. 

EDITH RAWLINGS, et al v. JOSEPH M. ARMSTRONG 
No. 27, October Term, 1945
 
Court of Appeals of Maryland
 
185 Md. 310; 44 A.2d 751; 1945 Md. LEXIS 126

 November  29, 1945, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order affirmed with costs.

CORE TERMS:  voter, registered, registry, certified copy, handbill, furnish, color, written application, election, re-enactment, prescribed, eliminated, posting, statutory construction, certified copies, election precinct, general law, mandamus, furnishing, municipal, demurrer, resident, printed, wards

COUNSEL: George B. Woelfel appeared on the brief for the appellant.

   Noah A. Hillman appeared on the brief for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Henderson, J., delivered the opinion of the Court.

OPINIONBY: HENDERSON

OPINION: [*311] [**752] Joseph M. Armstrong, a citizen, resident and taxpayer of Annapolis, and also the chairman of the Republican City Committee for that City, on April 26, 1945, by letter requested the Board of Supervisors of [*312] Elections for the City of Annapolis to furnish him with a complete, certified[***3] copy of the names, addresses, color and ages of the registered voters in the First and Third Wards of Annapolis.  The Board refused, and on May 2, 1945, Mr. Armstrong filed a petition for mandamus in the Circuit Court for Anne Arundel County to compel the furnishing of the list.  To the petition a demurrer was filed by the Board, which was overruled, after hearing.  The Board then filed an answer to which the petitioner demurred.  The Court sustained this demurrer, and ordered the writ to issue.  The Board appealed.

   No procedural question is presented by the issuance of the writ.  Ghinger v. Fanseen, 166 Md. 519, 172 A. 75. The sole question is one of statutory construction. It is not disputed that Section 13, Art. 2 (P. L. Laws), makes the provisions of the public general law applicable to all municipal elections in Annapolis.  The only dispute is as to the meaning of Section 27, Art. 33 of the Code, 1939, reading in part, as follows:

   "The said Board of Supervisors in the Counties shall furnish to anyone making written application therefor, within ten days after such application has been received, or in less time, if practicable, a certified copy under their hands of the names, [***4] addresses, color and ages of all persons registered in any election precinct or district of said county; for the sum of half a cent for each voter's name on said registry, which said sum shall be applied toward paying the expenses of making said certified copies."

   The appellant contends that because this sentence appears in the middle of Section 27, and because this and adjoining sections deal principally with the registry of new and the elimination of removed voters, the language must be restricted to cover only the changes effected by the registration, and not the complete registry.

   But the answer to this contention is clear from even a cursory examination of the statute.  Section 27 has a separate provision dealing with the list of newly registered voters and the list of names erased.  These lists [*313] are required to be printed in handbill form and copies posted in the respective precincts; other copies may be purchased by the public at 5c per copy.  Collier v. Carter, 100 Md. 381, 385, 60 A. 104. This provision is entirely separate and distinct from the provision as to the list of "all persons registered"; the latter plainly refers to the complete registry, for which[***5] a different charge is prescribed.

   The language of the provision quoted above has been in the law since 1896 (Ch. 202, Sec. 22, Acts of 1896), and has been re-enacted without substantial change at least eight times.  At the time the petition was filed in the case at bar, the last re-enactment was by Ch. 211, Acts of 1943.  We note, however, a subsequent re-enactment by Sec. 18, Ch. 934, Acts of 1945.  The requirement of preparing and posting handbills is entirely eliminated in this Act; it had been eliminated as to Baltimore City and three counties in the Act of 1943.  Before the name of an individual voter is stricken from the registry, he must be given notice, and doubtless the posting of handbills was considered as a needless duplication.  In any event, the furnishing of a complete list to anyone making written application therefor serves a different purpose, and one that would be useful to anyone desiring to communicate with the voters in regard to the issues of the campaign.  Even in the absence of statute it has been held that a member of the public may inspect voting lists and make his own copy.  Clay v. Ballard, 87 Va. 787; 13 S. E. 262. If a complete list could not be[***6] obtained for the charge prescribed, as the petitioner contends, the obvious purpose of the Statute would be defeated.  Compare Healy v. State, 115 Md. 377, 385, 80 A. 1074; and Tull v. Fitzgerald, 167 Md. 429, 433, 175 A. 216. So without laboring the point, we shall affirm the ruling of the lower Court directing the writ to issue.

   Order affirmed with costs. 

LENA BROOKS v. BENJAMIN BROOKS 
Nos. 13, 14, January Term, 1945
 
Court of Appeals of Maryland
 
184 Md. 419; 41 A.2d 367; 1945 Md. LEXIS 166

 March  1, 1945, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Order in No. 13 affirmed with costs to appellee.  Decretal order in No. 14 affirmed with costs to the appellee.

CORE TERMS:  decree, divorce, settlement, vinculo, asking, decree of divorce, absolute divorce, comprehend, confused, induced, prayer, interrogatories, alimony, property rights, cross-bill, matrimonii, originally filed, general relief, state of mind, divorce case, disturbed, stricken, demurrer, signing, equity rule, deliberately, desertion, answered, cohabit, amend

COUNSEL: Eugene P. Childs for the appellant.

   George B. Woelfel for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Henderson, and Markell, JJ. Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*421] [**367] Appeals in two cases, involving[***3] the same parties and growing out of the same circumstances, were heard together. Appellant in both is the former wife of appellee.  She filed a bill of complaint against him in the Circuit Court for Anne Arundel County on September 22, 1943, claiming technical desertion while living together by his refusal to cohabit for a period of many years prior to the filing of the bill, and asking for alimony and further relief.  An answer was filed by appellee denying the above allegation of the bill.  A cross bill was also filed by appellee claiming that the refusal to cohabit was by the appellant and not by the appellee, and asking for a divorce a vinculo on the ground of abandonment.  The first cross bill also claimed a voluntary separation, but this was amended, and the last mentioned allegation omitted.  Then the appellant used the discovery Rules 2 and 3 of Part II of the General Rules of Practice and Procedure to propound 29 interrogatories to appellee, which were duly and fully answered. These interrogatories were entirely about appellee's finances.  The record shows that on March 2, 1944, there was a hearing on the merits of the case and testimony taken, but all of this testimony[***4] is not in the record.  It appears, however, from the opinion of the Chancellor, which was not included in the record (contrary to the decisions of this court, Title Guarantee & Trust Co. v. McCulloh, 108 Md. 46, 69 A. 434; Weaver v. King, 184 Md. 283, 40 A. 2d 511), but was later filed with the clerk at our request, that the appellant called the appellee to the stand and proceeded to examine him as to his property rights, and that this examination continued [**368] for two hours or more until the court recessed for lunch. "After lunch" (quoting from the opinion) "the Court was advised that the parties had worked out a plan for the settlement of their property rights, and the plaintiff" (appellant) "by her counsel in her presence moved for leave to amend her bill of complaint by adding thereto a prayer for a divorce a vinculo matrimonii." This amendment was made, the [*422] appellant produced testimony, the appellee declined to submit any, and the Chancellor on the same day passed a decree divorcing the appellant from the appellee.  The written agreement, settling the property rights of the parties, was then filed in the case, but it was not incorporated in the[***5] decree.

   The appellant, during the proceedings above narrated, was represented by two capable and competent counsel, one from the Anne Arundel County Bar and one from the Bar of Baltimore City.  On April 6, 1944, appellant through her present counsel, who was not one of those originally representing her, filed a petition to have the divorce decree stricken out, to have the amendment to her bill, wherein she prayed for a divorce, stricken out, and to have her case heard on the merits of the bill as originally filed. The grounds of this petition are thus set out therein:

   "6th. That at the time of the hearing which was not upon the merits of the case, your petitioner was in an extremely confused, bewildered and disturbed state of mind and did not fully comprehend the situation and did not realize until several days after the decree had been signed that she had procured a divorce a vinculo matrimonii from the defendant.

   "7th. That she did not know that the Bill of Complaint had been amended to include a prayer for absolute divorce until several days after the decree of divorce was filed and only after she had consulted other counsel who informed her of the meaning of said decree. [***6]

   "8th. That the decree of divorce a vinculo matrimonii entered in this case on March 2, 1944, was a great surprise to your petitioner, as your petitioner had never sought such a decree."

   A demurrer to this petition was sustained, with leave to amend, appellant failed to amend, and the petition was dismissed.  From the order of dismissal, appeal is taken here.

   On April 8, 1944, appellant filed her bill of complaint in the Circuit Court for Anne Arundel County asking [*423] that the agreement of settlement of March 2, 1944, above referred to, be set aside.  The bill states that appellant was "told by one of her counsel that unless she signed the agreement of settlement * * * she would be turned out in the world without any support as her husband had no property or assets of consequence." The appellant further alleged in the bill:
 
   "4th. That naturally she was confused by the proceedings, and did not understand the legal terms used, and on the date of the hearing she was in an extremely confused, bewildered and disturbed state of mind and trusted largely in the advice of her chief counsel who it now appears, either by design or as a reckless disregard for her rights, left her, [***7] after her long years of servitude, poverty and suffering with but a doubtful contract, thereby preventing the Court from awarding unto her such support as the merits of the case should justify.

   "5th. That the agreement of settlement does not properly set forth the terms as explained to her by her counsel, in that she understood that she was to have a home as long as she lived and the defendant, Benjamin Brooks, was to return to her articles and personal belongings that he wrongfully took from her and removed to his place of business on West Street, Annapolis, Maryland, Ex. 1.

   "6th. That said agreement of settlement not only does not set forth the terms that she understood would be incorporated therein, but the signing thereof was induced by the statement of her counsel that the defendant, Benjamin Brooks, was possessed of very small means."

   Then is appended a statement of properties it is claimed the appellee owns and the further allegation is made: "8th. That your petitioner would never have signed the agreement of settlement had she been able at the time to fully comprehend its meaning, and had she not been induced to sign the same by her counsel."

   The agreement of settlement[***8] filed as an exhibit gives appellant $15 a week during her life, and she, in turn, releases the appellee and his brother from all her claims against their properties, held in their joint names. 

   [*424] A demurrer to this bill was sustained with leave to amend, no amendment was made, and the bill was dismissed.  The appeal from the order dismissing the bill, was [**369] heard here with the appeal from the order in the divorce case.

   In the divorce case the appellant contends that it was granted in violation of equity rule No. 26 of the Circuit Court for Anne Arundel County, which provides that "No decree in a suit for divorce shall be passed in less than thirty days from the filing of the bill nor on the cross-bill within thirty days from the filing of the cross-bill." This rule was not certified to us by the Court and brought up in the record in the proper manner, but was furnished us by agreement of counsel after the hearing.  We shall consider it as if brought up on writ of diminution.  The bill originally filed by the appellant was one containing allegations sufficient to authorize the granting of a divorce a vinculo.  In such a case, the Court could have granted a[***9] divorce under the prayer for general relief. Wald v. Wald, 161 Md. 493, 159 A. 97. In that case this Court first found that the wife was entitled to a divorce on her cross-bill although she did not ask for it, and the decree of the lower court was reversed for the purpose of giving her one.  The wife then filed a motion to modify, on the ground that she did not want a divorce. The Court, while holding that she could get a divorce on a prayer for general relief without specifically asking it, said that she did not have to take it, and therefore modified the decree as requested.  It appears, therefore, that the amendment made in the case now before us on the day the decree was filed was not necessary to enable appellant to get an absolute divorce, as she had a right to one under her original bill.  As this original bill was filed more than 30 days prior to the decree, equity rule No. 26 of the Circuit Court for Anne Arundel County has no application.

   The main contention made by the appellant in both the divorce case and in the case to set aside the agreement of settlement is that she was confused and did not [*425] fully comprehend the situation, and that she was induced [***10]to ask for the divorce and sign the agreement by her counsel.  There is no allegation of any fraud perpetrated on her by the appellee, or any misrepresentation made by him.  Her whole argument amounts to this, that she relied on her counsel in doing what she did, and that she afterwards became dissatisfied with the result.

   It should be noted that she was not only present in Court when her counsel made the amendment to the bill, indicating definitely her desire to have a divorce, but that she testified.  In her testimony, after stating the facts about the desertion, she was asked, "You are asking the Court now to grant you an absolute divorce. Is that right?  It is." "And through your counsel you ask the Court to amend your bill from an alimony bill to the bill of absolute divorce and alimony? Yes." The agreement of settlement was signed and sealed by her.  All of this took place after her husband, according to the opinion of the Chancellor, had been on the witness stand for two hours or more and had been examined during that time as to his income and the property he owned.  His examination must have been based upon the interrogatories which he had answered. His answers to these[***11] interrogatories showed that his salary was $55 a week, that Brooks Brothers, which formerly consisted of his brother and himself, but with which firm he had severed his connection as a partner in 1931, owed him $5,000; that he owned his home-place on German Street, in Annapolis, for which he paid $4,300 and which was subject to a mortgage of $3,500; that his income, from his income tax reports, averaged about $3,200 a year for the past three years.  There were several other pieces of property in which his name was inserted in the deeds with that of his brother Jacob, in order, as he said, that the respective wives would not have to sign the deeds.  The appellee testified that he had no interest in these properties, except to help his brother.  The lengthy examination of the appellee, above referred to, must have convinced appellant's counsel of the truth of the above facts [*426] and that a settlement for about one-fourth of appellee's present income during appellant's life was advisable.  This was the settlement that was made.

   The action of an attorney in the course of litigation in which he is employed is binding upon his client.  Poe's Practice, Tiffany's Ed., p. [***12] 22, par. 7, and numerous cases there cited.  There is a prima facie presumption that he is acting under the authority given him.  This, of course, may be rebutted, but that is not the point raised here.  There is no question that appellant's counsel were representing her with her authority and approval.  She was present at the time, knew what they did, consented to it and carried out her part of the arrangements by testifying that she wanted her bill amended, that she wanted an absolute divorce and by signing the agreement.  There is not even any claim that [**370] there was any fraud practiced on her by her counsel, although she now says that what her chief counsel urged her to do was done either by design or with a reckless disregard for her rights.  We are unable to see from the record where her rights were disregarded, as it appears that the settlement made was at least reasonable, although it is possible she might have gotten more by an order of Court than by the agreement.  On the other hand, it is quite possible she might not have been able to prove her case.  It is one thing to prove a case where there is no defense, and another to prove one where there is a vigorous[***13] contest.  All of these considerations may have been in the mind of the appellant's counsel and may have caused them to advise her as they did.

   There have been a number of cases in this Court in which petitions have been filed to strike out divorce decrees. In each case the petitioner has been required to make a definite and specific showing of some proper grounds of attack.  Such cases are Foxwell v. Foxwell, 122 Md. 263, 89 A. 494; Pressler v. Pressler, 134 Md. 243, 106 A. 686; Raymond v. Raymond, 159 Md. 566, 152 A. 110; and Noellert v. Noellert, 169 Md. 559, 182 A. 427. The recent case of Saltzgaver v. Saltzgaver, 182 Md. 624, 35 A. 2d 810, does not help the appellant's contention.  [*427] In that case the Chancellor had dismissed appellant's bill for divorce, which she had filed on the ground of adultery.  The facts were admitted, but the Chancellor held that she was barred by the doctrine of recrimination.  She did not appeal, but after the decree had become enrolled, she filed a petition asking that it be stricken out.  She alleged that she was, at the time the decree was passed, and afterwards, in a confused, extremely nervous and highly disturbed[***14] state of mind, and had no means to bring the case to this Court.  She further showed that the circumstances of the case were such as should satisfy the Court in the exercise of a sound discretion that a situation existed in which equity and good conscience, justice and enlightened public policy required that the decree be set aside.  This Court held that the decree should be set aside under well established equitable principles, the Court finding that the Chancellor was mistaken in his interpretation of the law and the facts, and that the appellant, under the admitted facts, was entitled to a divorce. In the cases before us, there is no misinterpretation of the facts, and no misapplication of the law.  The allegations made by the appellant amount only to the fact that she would not have made the agreement she did if she had understood, and that she now wants another chance.  That is certainly not sufficient ground to upset a final decree, and to set aside a sealed instrument, especially when it is not alleged that the other party to the decree and to the agreement had anything to do with persuading the appellant to make the settlement she did.  The Chancellor, in his very excellent[***15] opinion, sustaining the demurrer to the appellant's bill of complaint to set aside the agreement, said, "The relief prayed for is against the defendant; not her counsel.  Yet there is not one word in this bill even intimating, by inference or otherwise, that either the defendant or his counsel did anything or said anything which caused her to sign the agreement.  How can the defendant answer such a bill? Wherein lies the defendant's responsibility for what her counsel told her?  When did the law become such that [*428] courts will strike down an agreement deliberately entered into unless some fraud, duress, or other overreaching on the defendant's part is shown?  When did the law become such that the courts will strike down an agreement because the Plaintiff's own counsel induced her to sign it unless there is a showing that said Counsel were activated by corrupt motives?  Where does this Court get the right to strike down an agreement deliberately entered into by a woman, in the full possession of all of her faculties and on the advice of two experienced lawyers of her own choosing, simply because she comes in, and says that at the time of the signing, she did not fully comprehend[***16] its meaning?"
 
   We agree with the Chancellor that the questions asked by him answer themselves, and that the appellant has shown no ground either to set aside the decree or to annul the agreement.  For these reasons the orders will be affirmed.

   Order in No. 13 affirmed with costs to appellee.

   Decretal order in No. 14 affirmed with costs to the appellee. 

CHARLES WESLEY WEAVER v. CHARLES J. KING, Administrator, etal 
No. 78, October Term, 1944
 
Court of Appeals of Maryland
 
184 Md. 283; 40 A.2d 511; 1945 Md. LEXIS 150

 January  11, 1945, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  deceased, bargain, definite, decree, personal estate, dollars, big boy, administrator, convincing, inserted, lived, specific performance, legally enforceable, income tax return, decretal order, oral agreement, lived together, material part, final decree, net proceeds, equity case, taking care, compensated, transferred, speculation, conjecture, attending, intestate, enjoined, daughter

COUNSEL: Emanuel Klawans and Marvin I. Anderson for the appellant.

   Bird H. Dolby for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Melvin, and Henderson, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*284] [**511] Charles Wesley Weaver, now seventy-three years of age, filed in the Circuit Court for Anne Arundel County an amended bill of complaint alleging that for about thirty-five years prior to 1938 he resided in the District of Columbia and for about one year prior to that time he had been receiving an old age pension of thirty dollars ($30) per month, dependent upon his residence in the District of Columbia.  He was also receiving additional income for attending[***3] to the furnace of the house where he roomed in Washington.  He alleged that in 1938 his brother, William Morgan Weaver, became separated from his wife and desired to move from Washington to [*285] his house at Chalk Point in Anne Arundel County and that he did not desire to live there alone; that at that time William made a bargain with the plaintiff that if he would surrender his residence, pension and employment in Washington, leave there and move with him to Anne Arundel County and live with him, he, William M. Weaver, would support the plaintiff for the latter's lifetime; that in consideration and on condition of this promise, the plaintiff surrendered his residence, pension and employment in the District of Columbia, moved with his brother, William, to Anne Arundel County where the two lived together; that he rendered services to his brother as housekeeper, caretaker of the house and grounds and as personal assistant without compensation until the death of William Weaver on January 2, 1944, when he died a resident of Anne Arundel County, Maryland, leaving a large personal [**512] estate and owning the house there.  He further alleged that his brother was survived by his[***4] widow, Edna Weaver, and his daughter, Virginia Cave, as his only heirs at law; that letters of administration on his estate have been granted in Anne Arundel County.  Since the death of William Weaver, his daughter, Virginia Cave, has died.  He further alleged that William Weaver told him that he had provided for the plaintiff's support for life in a will located in a specific safe deposit box and showed the plaintiff where the keys to the box were kept, but when this box was opened in the plaintiff's presence, it contained no will or other provision for his support and as far as he knows, William Weaver died intestate. Plaintiff alleges that he is destitute and has no means of support and that the reasonable cost of food, lodging, clothing, medical attention, and sundries is one hundred dollars ($100) per month.  He asked that the real and personal estate be charged with the cost of reasonable maintenance and support for life; that the real and personal estate be charged with the expenses of litigation and reasonable counsel fee; that the administrator be enjoined from distributing the net proceeds of the estate, and that Edna [*286] Weaver and the administrator of Virginia[***5] Cave be enjoined from receiving any of the net proceeds of the real and personal estate of his brother or from alienating or encumbering any of this pending the determination of the suit.  He also asked for other and further relief.  Answer was filed denying the material allegations of the bill and after testimony was taken in open court, the Chancellor by decree dismissed the amended bill of complaint, and an appeal is taken to this Court from that decree.

   In order for the appellant to recover, it is necessary that he prove the contract, bargain, agreement, or promise based on a consideration.  This Court said in the case of Neal v. Hamilton, 159 Md. 447, at page 449, 150 A. 867, at page 868: "The disfavor with which the court regards an oral agreement for services which are to be compensated after the promisor's death by devise and bequest, and the necessity that the terms of such a contract be not only certain and definite, but be also affirmatively established by clear and convincing testimony, are based upon weighty practical considerations and grounded in a wise policy which should be consistently followed.  Mundorff v. Kilbourn, 4 Md. 459; Soho v. Wimbrough, 145[***6] Md. 498, 510, 125 A. 767; Semmes v. Worthington, 38 Md. 298, 318." Hardesty v. Richardson, 44 Md. 617, 22 Am. Rep. 57; Dowell v. Dowell, 177 Md. 370, 9 A. 2d 593. The proof of an alleged agreement of this sort must be definite, certain, strong, and convincing and such that no material part thereof is left to conjecture and speculation. Soho v. Wimbrough, supra, 145 Md. at page 510, 125 A. 767.

   By reason of Code, Article 35, Section 3, the plaintiff was denied the right to testify as to any transaction had by him with the deceased and was therefore unable to testify as to the alleged agreement or promise made by his brother. There is no other witness who heard such an agreement or promise made, or heard the deceased say that he had made such an agreement or promise.

    It is not disputed that the two brothers lived together in Anne Arundel County from 1938 to the death of William [*287] Weaver in 1944.  It is also shown that at the time that Charles Weaver left Washington, he was receiving thirty dollars ($30) per month from the Public Assistance Division of the Board of Public Welfare of the District of Columbia and that he earned six dollars ($6) per month[***7] for attending to the furnace in the boarding house where he lived; also that shortly prior to September 1, 1938, William Weaver and his wife separated and William and Charles moved to Anne Arundel County.  By a witness, Mrs. Laura M. Owens, who lived near them in Anne Arundel County, the plaintiff showed that the deceased did his own marketing, cooking, and cleaning up the kitchen and that the plaintiff cleaned up the bedrooms, made up the beds and did the sweeping and dusting and at times cut the grass; also that the deceased told Mrs. Owens that the plaintiff was the only companion he had down there and that he had gone to Washington to get his brother and further said: "I cannot stay down there without him, I am going to take care of him as long as he lives.  We can't stay here long for I could not stay here without the 'big boy.'" Further, that "I have to go back to see what the 'big boy' is doing." She testified that the deceased always spoke of Charles as the "big boy." She said that he paid for the laundering of [**513] Charles' clothes and that he was taking care of him.  She further said that William told her that the place in Anne Arundel County belonged to Charles if[***8] anything happened to him; that Charles has a home and he would see that he had a home as long as he lives. She further testified that the day that the deceased was taken away in an ambulance during his last illness, he told her that he was leaving and he wanted her to see that his brother had attention while he was away and to see that he did not want for anything, for everything there is left to him and that he wanted Mrs. Owens to look after him and see that he was well taken care of.  She does not know whether the plaintiff heard any of this conversation between her and the deceased. Another witness, W. L. Eagle, testified that the deceased told him that he intended [*288] to leave Charles the place in Anne Arundel County.  All of this testimony is as to the intent of the deceased and does not show any promise or agreement based on the promise.  Although there is evidence that the appellant performed certain services, there is no evidence of the alleged promise or bargain on the part of the deceased to support the agreement we are asked to enforce.  The income tax return of the deceased was filed showing that he claimed his brother, William as a dependent.  On cross examination[***9] the plaintiff admitted that he tried to get the payments from Washington transferred to Maryland and further said that he was told by the representative of the Washington Board of Welfare that at any time he could not take care of himself, he could come back to Washington and in one year have them renewed.  He said he did not think he would be back there within a year but made this arrangement in case anything should happen.  A letter offered in evidence dated October 19, 1938, also showed that the plaintiff told the Washington Public Assistance Division that he was temporarily staying with Mr. William Weaver.  It therefore appears doubtful that a definite contract or bargain had been made at that time.

   No evidence was offered by the defendant.

   From the evidence, it appears that the two brothers came to Anne Arundel County to live together.  The services which the plaintiff rendered are those which would be rendered ordinarily by one member of a household to another.  The fact that the deceased showed on his income tax return that the plaintiff was a dependent tends to bear out defendant's contention that he was not living and working at the house under an agreement, promise, or[***10] contract, but that his brother was taking care of him.  The question before us here is not what the brother intended to do, but what legally enforceable contract was made by the parties.  For this Court to enforce such a contract it must have been made by the deceased. We cannot make the contract for him although he may have intended to make provision for his brother [*289] and did not do so.  In order for a Court to enforce a contract, it is, of course, necessary that there be a contract.

   Plaintiff relies strongly on the cases of Hardesty v. Richardson, 44 Md. 617, 22 Am. Rep. 57, supra; Devecmon v. Shaw, 69 Md. 199, 14 A. 464, 9 Am. St. Rep. 422; Steele v. Steele, 75 Md. 477, 23 A. 959; Evans v. Buchanan, 183 Md. 463, 38 A. 2d 81. The difference between those cases and the one at bar is that the agreement or contract and the making of a promise in those cases were proved by definite evidence while in the case before this Court, although there is evidence that the deceased intended to provide for his brother, there is not the slightest evidence of a contract or agreement between them or that the deceased made any promise to the appellant on which the alleged[***11] contract, agreement, or bargain is based.  From the facts that the letter of October, 1938, offered in evidence by the appellant, and written after appellant had moved to Anne Arundel County, indicated that no permanent plan for the plaintiff had been worked out, and further as the plaintiff testified that he tried to have his payments continued by the Board of Welfare and get them transferred to Maryland in case anything should happen, appellant's testimony more or less negates the making of a contract or bargain.

   There being no evidence offered to prove a legally enforceable contract, this Court is powerless to carry out the alleged intention of the deceased. The Chancellor was correct in dismissing the bill of complaint.

   For the purpose of awarding costs, the appellant objects to the opinion of the Chancellor being inserted in the record in this case.  By Code, Article 16, Section 198, in all cases in courts of equity, except in Baltimore City and Prince George's [**514] County, the Chancellor is required to file an opinion in respect to any final decree or decretal order whenever such decree or order shall be passed upon argument, oral or in writing, on the part of any of [***12]the parties in such cause.  When an opinion is filed in an equity case, it should be inserted in the record or in [*290] some way brought to the attention of this Court, as such opinions, particularly the able one in the case at bar, are very helpful to this Court in the review of decrees. Title, Etc., Company v. McCulloh, 108 Md. 48, 53, 69 A. 434.

   Decree affirmed, with costs. 

THOMAS KIRBY et al. v. GEORGE KIRBY 
No. 48, October Term, 1944
 
Court of Appeals of Maryland
 
184 Md. 120; 40 A.2d 303; 1944 Md. LEXIS 221

 December  20, 1944, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs to appellee.

CORE TERMS:  crop, tobacco, chancellor, accounting, one-half, demurrer, jointly, raising, decree, adjust, suit in equity, oral agreement, equitable, hogsheads, shipped, barn, farm, partnership, repeated, business enterprise, compelled to pay, furnished labor, manifest error, tract of land, adventure, instituted, cognizance, disturbed, stripping, planting

COUNSEL: John S. Strahorn for the appellant, Thomas Kirby.

   George B. Woelfel for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Melvin, Bailey, Capper, and Henderson, JJ.  Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*121] [**304] Appellee (George Kirby) instituted this proceeding against appellant (Thomas Kirby) in the Circuit Court for Anne Arundel County, in equity.  The original bill of complaint contains the following allegations, which will be set out in narrative form:

   Thomas owned a tract of land in Anne Arundel County, containing approximately sixteen acres.  In 1936 he entered into a oral agreement with George, whereby George was to work the land in tobacco, and when cropped, it was to be equally divided between them.  Under the oral [*122] agreement, set out in the bill, Thomas was to furnish: (1) all fertilizer, (2) all seed, (3) one-half the team, and (4) one-half the labor needed for planting and housing the tobacco. George was to supply: (1) one-half of the labor used in planting and housing the tobacco, (2) one-half of[***3] the team, (3) all of the labor used in cultivating and raising the tobacco, and (4) all of the labor necessary for stripping and packing the same.  George worked the place from 1936, through to and including the year 1940.  During this period nothing happened to disturb their amicable relations regarding this enterprise.  In 1940 George was behind in his work and Thomas furnished labor necessary to get the crop out of the way so that the barn could be used for the 1941 crop. All of the 1940 crop of tobacco was sold, except eight hogsheads. In March, 1942, George shipped the eight hogsheads of tobacco to market.  It was shipped in both names, having been held over until 1942 in order to obtain a better price.  In 1942 Thomas sold the eight hogsheads of tobacco and procured all of the money from the Maryland Tobacco Growers Association (with the exception of two hundred and five [$205] dollars), which he divided.  This he claimed was due him for labor he hired in stripping and packing the tobacco in the year 1940.  George contends Thomas is not entitled to any charge for labor during 1940, but in any event this amount is exorbitant.

   It is alleged in the original bill that George[***4] continued to work the place until June 20, 1941, when he was prevented from continuing doing so by illness.  At that time, it is averred, more than two-thirds of the crop had been planted and he and Thomas agreed that Thomas would finish the crop, strip and pack it, and after deducting the costs thereof, the remainder would be divided equally.  It is charged, instead of making the division, and contrary to the agreement, Thomas shipped the crop in his own name, received all the proceeds, and refused to give George any of the proceeds or to account for the same.  The original bill further charges that Thomas [*123] owes George for repairing the barn, for building him a tobacco prize, for cutting poles, for removing fourteen locust trees, and for grubbing an orchard on the place, which work he avers was done at the request of Thomas and for which he has never been paid. The bill prayed: (a) for an accounting, (b) that Thomas be compelled to pay to George his share of the proceeds of the tobacco, (c) that Thomas be compelled to pay George for the work done by him for Thomas's account, and (d) for other relief.  To this bill a demurrer was filed and the Chancellor, in a very thorough[***5] and careful opinion, sustained the demurrer with leave to amend.  The amended bill of complaint made Thomas Kirby and the Maryland [**305]Tobacco Growers Association, a body corporate, defendants.  It set out the allegations contained in the original bill and is more definite and certain than the original bill.  It asks for the same relief and in addition thereto that the Maryland Tobacco Growers Association be compelled to deposit the sum of two hundred and five ($205) dollars in Court, subject to the award to be made by the Court.  This sum was a part of the proceeds of the 1940 crop, which it sold on order of Thomas, and in its possession at the time this case was instituted. A demurrer was filed to the amended bill and the Court sustained the demurrer as to the fifth paragraph of that bill, with leave to amend.  The second amended bill of complaint contains the same parties as the amended bill, the same prayers for relief, and is more definite and certain than the amended bill.  To the second amended bill of complaint Thomas answered and denied the allegations with respect to the 1940 crop and denied that George worked the farm in tobacco in the year 1941.

   From the decree[***6] passed by the Chancellor, this appeal was taken.

   It is contended by appellant that appellee had a remedy at law, and a court of equity is without jurisdiction to hear and determine the case.  This contention, in view of previous decisions of this Court, presents no difficulty. In Bruns v. Spalding, 90 Md. 349, at pages 360 and 361, [*124] 45 A. 194, at page 196, this Court considered fully the law applicable to the case at bar. What was said there will not be repeated in full here.  It was held in that case that a bill will lie: "to adjust the rights of those who are entitled to a share in the profits of a business adventure." Again in Legum v. Campbell, 149 Md. 148, 150, 131 A. 147, 148, it is said: "Independently of any question of partnership, it was held in Bruns v. Spalding, 90 Md. 349, 45 A. 194, that a suit in equity could be maintained for an accounting as to the profits of an enterprise in which the parties were jointly interested." This statement of the law was repeated in Zalis v. Orman, 175 Md. 100, 102, 199 A. 877, and in Whitely v. Schoenlein, 183 Md. 590, 39 A. 2d 692, 695, Judge Collins said: "Aside from any question of partnership, this[***7] Court held in the case of Bruns v. Spalding, supra, that a suit in equity could be maintained for an accounting of the profits of an enterprise in which the parties were jointly interested, and a bill will lie to adjust the rights of those entitled to a share in the profits of a business adventure."

   From the allegations of the bill it is apparent the parties hereto were engaged in a business enterprise of raising tobacco and, without restating the allegations of the bill, it is sufficient to say, from the facts therein averred, it presents a case for equitable cognizance and appellee was entitled to an accounting. This gave the court jurisdiction, and it needs no authority to support the proposition if a court of equity has jurisdiction for one purpose it has jurisdiction to adjust and determine all the rights of the parties.

   Thomas Kirby and George Kirby are brothers.  This tract of land belonging to Thomas was worked by George, under an oral agreement between them, from and including 1936, to and including 1939, and no dispute during these years arose between them.  In 1940 George was behind in his work and Thomas furnished labor necessary to get the crop out of the way so[***8] that the barn could be used for the 1941 crop. He sold this tobacco crop and claimed the $205 in the hands of the Tobacco [*125] Growers Association should be applied to the cost of labor supplied by him in getting out the 1940 crop. George claims that he began the 1941 crop but suffered a serious illness and Thomas agreed to finish this crop, charging George only actual cost.  Thomas asserts that George gave up the farm before the 1941 crop was started and that he has nothing to do with the crop for that year.

   The record in this case contains sixty-eight pages of testimony.  It is conflicting and we will not attempt to analyze it in detail.  From all of the testimony, the Court found that George continued to farm this place until June, 1941, when he became ill, and Thomas agreed to take over thereafter and complete the crop for that year, charging against George's share the fair cost for labor. In his opinion, the Chancellor adjusted the claims of the parties arising from their disputes with respect to labor employed during the years 1940 and 1941, and all other claims.  There is evidence that warrants his finding, and this Court will not reverse the Chancellor on finding[***9] of facts unless the record discloses he was clearly wrong.  He saw the witnesses who testified.  The way and manner testimony is given by a witness, his frankness or evasiveness, is of great [**306] value in determining his credibility.  This Court will not reverse the Chancellor, who saw the witnesses, on a finding of fact, unless there is manifest error.

   Some comment was made at the argument in this Court concerning the use of certain books that were offered as part of the evidence.  They contained entries alleged to have been paid labor during the years in controversy.  During the examination in chief of Thomas Kirby two pages of a book were offered in evidence, marked "J. D. S." Under cross-examination "pages in book marked J. D. S." were offered in evidence.  Later on there was a book referred to, which had not been produced and the record shows as to this book "offered in evidence to be produced and filed." The book referred to was later produced to the Court for use in the consideration of the case.  Counsel for appellant stated items in these books [*126] not offered in evidence were used by the Court.  These books are not before this Court, and it cannot be presumed[***10] that the Chancellor did consider anything but the evidence before him.  On the contrary, it will be presumed that all of the items contained in these books or pages thereof referred to by the Chancellor were properly before him.

   We have carefully considered all of the evidence in this case and are of opinion that the decree of the Chancellor should not be disturbed. The law and the facts were carefully considered by the Chancellor and his disposition of the case was fair and equitable.

   Decree affirmed, with costs to appellee. 

JEROME LICHTENBERG, et al. v. HAZELTON A. JOYCE, et al. 
No. 27, October Term, 1944
 
Court of Appeals of Maryland
 
183 Md. 689; 39 A.2d 789; 1944 Md. LEXIS 205

 November  17, 1944, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Judgment reversed and new trial awarded with costs to the appellants.

CORE TERMS:  amended declaration, notified, one year, termination, notice, premium, demurrer, cause of action, declaration, annual, holder, termination date, policy holder, mutual insurance, receiver, signing, retires, chancellor, allowance of interest, original declaration, ratified, arrest, waived, fixing, period of limitation, effective date, general issue, notification, protest, pleaders

COUNSEL: Linwood L. Clark, with whom was [***5] Marvin I. Anderson on the brief, for the appellant.

   William J. McWilliams and A. Walter Kraus, Jr., with whom were Miles & O'Brien on the brief, for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Melvin, Capper, and Henderson, JJ.  Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*692] [**791] This suit was brought in the Circuit Court for Anne Arundel County, on March 3, 1943.  The plaintiff is the receiver of the Eastern Mutual Casualty Co., and the defendants, who are the appellants here, are policy holders of that Company, upon whom an assessment of once the amount of the annual premiums called for by their policies had been made.  The suit was to collect the assessments on four policies.  Appellants filed a general issue plea, and a general plea of limitation, and subsequently, by leave of Court, an additional plea setting up the provisions of the Act of 1941, Chapter 296, codified as Section 155A of Article 48A of the 1943 Supplement to Flack's Annotated Code.  This section provides that no action shall be brought against the policy holder of a domestic or foreign mutual insurance company for the purpose of enforcing[***6] an assessment more than one year after the termination of said policy, unless such policy holder shall have been notified of such assessment within one year after the termination of his policy.  A demurrer was filed to this additional plea, but on January 5, 1944, by leave of Court, plaintiff filed an amended declaration. The original declaration alleged that an assessment against the policy holders had been ratified by order of [*693]the Circuit Court of Baltimore City, on March 4, 1940.  The amended declaration set out that the Circuit Court of Baltimore City, on the fourth day of March, 1940, passed an order making an assessment upon each policy holder and further set out that this order had been reviewed by this Court and held to be valid.  The reference is to the case of Joyce v. Abrams, 178 Md. 535, 16 A. 2d 296, in which it was held that directors could not validly make an assessment against members after the affairs of the company were in receivership, but that the chancellor who had assumed jurisdiction over the corporation, possessed that power.  The result of that case was that the order of March 4, 1940, was reinstated as an action of the chancellor making the[***7] assessment, instead of an action of the chancellor ratifying the directors' assessment.

   The appellants filed four pleas to the amended declaration. The first was the general issue; the second, the ordinary three-year plea of limitations; the third, that the cause of action did not accrue within three years prior to the date of the filing of the amended declaration; and the fourth, that defendants were not notified of the assessments made against them within one year after the termination of their policies.  Demurrers were filed to pleas 3 and 4 and were sustained by the lower Court.  This action of the Court we are asked to review.

   The case proceeded to trial and resulted in issues being submitted to the jury, and answered by them on January 13, 1944.  Subsequently, on January 20, 1944, judgment was entered in favor of the appellee against the appellants for $576.05 with interest and costs of suit.  This amount was admittedly arrived at by the Court by taking the total of the annual premiums on three of the policies sued on, and adding interest at six per cent.  Claim on the fourth policy was abandoned during the trial.  Appellants objected to the action of the Court in entering[***8] this judgment, and filed a motion in arrest thereof.  The ground of the motion was that they had asked for a trial by jury, and the action of the Court in entering judgment [*694] after the jury responded to issues which did not include fixing any amount was a denial of that right.  This motion was overruled both because it came too late under the rules of the Court, and because the Court found no merit in it.  Numerous exceptions apparently were taken during the course of the trial to rulings on evidence and to prayers, and to the issues submitted to the jury by the Court.  These are embodied in the bill of exceptions, which is objected to by the appellee because it was filed after the term at which the verdict was given, and there was no extension by the Court within such term of the time of signing such bill of exceptions.  A motion to dismiss was filed based upon this ground.  In this complicated state of affairs, it becomes advisable for us, first, to examine the record to see what is before us on this appeal.

   [**792] The Court below certified that the case was tried on January 13, 1944, during the October term, 1943, and the jury's verdict was rendered on that day; [***9] that the October term, 1943, was finally adjourned on Monday, January 17, 1944; that the 29th Rule of the Circuit Court for Anne Arundel County provides that in every case, unless otherwise expressly allowed by the Court, the bill of exceptions shall be prepared and submitted to the Court during the term at which such exceptions are taken; that on February 26, 1944, counsel for the defendants (appellants here) requested him to sign an order extending the time for signing the bill of exceptions, which he refused to sign; that the bill of exceptions were not presented to him until April 4, 1944, and that he signed it on April 13, 1944, "over the protest of the plaintiff's counsel".  The harshness of the application of the rule of the Circuit Court for Anne Arundel County is exemplified in this case by the fact that only four days elapsed from the date of the verdict to the adjournment of the term. Nevertheless, the rule is one under which the Court operated, and the decisions of this Court are clear that if the time is not extended within the original time limited, the Court has no power to sign [*695] the bill of exceptions after the original time, and that a bill of exceptions[***10] so signed cannot be considered by this Court.  Nicholson v. Walters, 153 Md. 16, 137 A. 357. It is true that such bills of exception may be signed if the parties consent, and such consent may be express on inferred.  The appellee may be held to have waived his objection or to be estopped from making any.  Pennsylvania R. Co. v. Reeley, 179 Md. 35, 16 A. 2d 904; Morgan v. Toot, 182 Md. 601. 35 A. 2d 641. In the case before us, however, the appellee neither consented nor waived the objection he actually made, and the Court signed the bill of exceptions over his protest. We must, therefore, apply the rule and decline to consider any of the matters raised by the bill of exceptions.

   A motion in arrest of judgment, under the 28th rule of the Circuit Court for Anne Arundel County, as certified by the trial Court, must be filed during the term at which the verdict is rendered, and within three days after the day on which the verdict is rendered.  The verdict in this case, as already stated, was rendered on January 13, 1944.  Motion in arrest was filed on February 14, 1944. This motion, therefore, came to late and the Court below was correct in overruling it on this ground. [***11]

   However, the question raised involves one of our own rules, which gives the right of appeal, and the decision of the lower Court is before us, not on the ruling on the motion in arrest but on direct appeal.

   The contention is that the Court submitted issues under Rule 7 of Part Three, Section III, of the General Rules of Practice and Procedure of this Court, 1941, that such issues did not constitute a complete trial by jury, as elected by the defendants, and that the entry of the judgment by the Court, where the docket entries show no verdict for a specific sum, did not constitute a final and effective judgment.  Rule 7 provides for the submission of written questions. If, in such questions, the Court omits any issue of fact raised by the pleas, or by the evidence, each party waives his right to a trial by jury of the issue so omitted, unless before the jury retires, [*696] he demands its submission to the jury.  "As to an issue omitted without such demand, the Court may make a finding; or if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.  Upon the return of the special verdict of the jury the Court shall direct[***12] the entry of the appropriate judgment in accordance with this rule".  It appears from the certificate of the trial Court that appellants did not request any issues on the amount of the annual premiums, or on the allowance of interest thereon, to be submitted to the jury.  Therefore, under the rule the Court had authority to enter a judgment after the special findings of the jury had been received.  The judgment is reviewable in the same way as a judgment in a case tried before a Court without a jury, under Rule 9, subsection (c), according to the specific direction of Rule 7, subsection (b).  Therefore it is correctly before us on this appeal.

   There was no dispute as to the amount of the premiums. Where there is a contract or obligation for the payment of a definite sum of money, the measure of damages is the amount of money promised to be paid with legal interest, and the allowance of interest is a matter of legal right.  Poe's Pleading, Tiffany's Edition, par. 584C, and cases cited.  The Court, in [**793] allowing interest, did not exceed its discretion, under the circumstances, and its action in entering the judgment, as it did, does not constitute error.  The judgment, [***13]therefore, should be affirmed if this is the only objection to it.

   The remaining questions before us are the right of the trial Court to permit an amended declaration to be filed, and its ruling on the demurrer to the appellants' third and fourth pleas to this declaration. The right of amendment at law is contained in Flack's Annotated Code, 1939, Volume 2, Art. 75, Sec. 39. It is there provided that in all suits at law, any of the proceedings may be amended so that such case may be tried on its real merits, and the purposes of justice subserved.  Under this section, the plaintiff may amend his declaration at [*697] any time before the jury retires, and the allowance of an amendment, provided it is within the power of the trial Court, is not subject to appeal.  It is stated in Poe's Practice, Tiffany's Edition, Chapter XI, Sec. 185, that the general rule is that returns of summons and all subsequent proceedings may be amended, and even that cases may, by amendment, be changed from one form of action to another.  In Section 190 it is said, "* * * it appears to be more or less settled that from the action of the lower Court in granting an amendment in cases within their power[***14] or in refusing to grant it, no appeal will lie.  Such action is held to be within the discretion of the Court and not subject to review".  See cases cited under this section and Frisch v. Baltimore, 156 Md. 310, 144 A. 478, and Noellert v. Noellert, 169 Md. 559, 182 A. 427. The contention of the appellants is that the amended declaration is laid on a new cause of action, because the first declaration was upon an assessment made by the directors and ratified by the Court, whereas, the second declaration is based upon an assessment made by the Court.  But the difficulty with this contention is that the case of Joyce v. Abrams, supra, held that the order of March 4, 1940, while not good as a ratification, was good as an original assessment.  The original declaration in this case, and the amended declaration, both declare on this order, and therefore the amendment does not substitute a new and different cause of action. We think it was within the power of the lower Court to allow this amendment, and that no appeal lies from the exercise of the Court's discretion with respect to it.

   The demurrer to the third plea was properly sustained because it alleges that the cause of[***15] action did not accrue within three years prior to the date of the filing of the amended declaration. The period of limitation must elapse prior to the date of the filing of the suit, unless the cause of action is changed.  (Zier v. Chesapeake R. Co., 98 Md. 35, pages 40, 41, 56 A. 385.) The cause of action here is the same.

   The fourth plea brings up a construction of Chapter 296 of the Acts of 1941, Code Supp. 1943, Art. 48A, [*698] Sec. 155A.  This section was construed in the case of Kelch v. Keehn, 183 Md. 141, 36 A. 2d 544. In that case a plea was filed by the policy holder, to the effect that he was not notified of any assessment within one year after the termination date of his policy, and the suit was not filed until more than a year after June 1, 1941, when the Chapter 296 took effect.  The policies terminated in 1935 and 1936.  The question in that case, raised by the policy holder's plea, was whether the action begun on March 19, 1943, was barred by limitations, by reason of the Act of 1941.  This Court said that, except for Chapter 296, the period of limitation applicable would be three years from the date of the assessment.  This Court further said that in[***16] the case before it, the notice provisions in Chapter 296 could not apply, as notification of the assessment within one year after the termination of the policies was impossible on June 1, 1941, the effective date of the statute.  As the notice could not be given, the case did not come within the exception, but there was ample time from June 1, 1941, until June 1, 1942, to bring the action.  As the action was not brought within one year, the plea set up a complete defense.  In the case at bar, the assessment was made on the 4th day of March, 1940.  One policy sued on is alleged to have been received and accepted on January 3, 1939, which would make its termination date January 3, 1940.  Another was accepted on September 6, 1939, which would makes its termination date October 2, 1939.  The third was accepted October 2, 1938, and its termination date would be October 2, 1939.  It was therefore impossible for the appellants to be notified of the assessment on two of these policies after June 1, 1941, [**794] and within one year after their termination. If they had not been notified as provided by the Act then suits had to be brought within one year after June 1, 1941 (Kelch v. Keehn[***17] , supra). The suit was not brought until March 3, 1943.  As to two of the policies, therefore, the suit was not brought in time, and as to the third one, it was not brought in time, unless the appellants were [*699] notified prior to September 5, 1941, of the assessment on it.  The appellants, therefore, have a complete bar by way of limitations to two of these policies, and a possible bar to the third, depending on the facts.

   Appellants' fourth plea is not as full as the similar plea in the case of Kelch v. Keehn, supra. In the case before us, the plea recites that the defendants were not notified of the assessments within one year after the termination of the policies, but it does not further set out the suit was not filed within a year after June 1, 1941, when Chapter 296 of that year took effect.  Pleas of limitation are not favored in the law and must be strictly construed.  They cannot be amended, Code 1939, Art. 75, Sec. 47.  They must be filed in the manner and at the times provided by rules of Court, and they must contain sufficient information to act as a bar to the action, if the facts alleged are proved.  The omission from the plea in this case, of the allegation [***18]that the suit was not filed within one year after June 1, 1941, is not, however, fatal.  That fact is one which is before the Court from the docket entries and from its own records.  The pleaders had a right to assume that the Court could look at the record in the case before it, and see whether the case had been brought within the time limited by the act, if notice of the assessment had not been given.  All that was necessary for the pleaders to do, therefore, was to state in their plea the facts which did not appear from the record and which they would have to prove to sustain their plea.  Pleas of limitations do not deny the right of action, but only the exercise of that right within the time provided by law.  For that reason Courts have been strict in their construction.  Nevertheless, these pleas are based upon a sound legal principle which is that after the specified lapse of time the Legislature feels that the difficulty of making a defense is so enhanced that a defendant ought not to be required to answer.  If the defendants show by their plea, coupled with the indisputable fact of the date of the filing of the suit in which the plea is entered, that the suit is too late, it[***19] would not promote the ends of justice [*700] to say that the plea is bad, because one fact which is to be found in the record is left out of the plea.  We do not so say.  We think the plea is good, and that the demurrer to it should have been overruled.

   The purpose of pleading was stated by this Court in the case of Gott v. State , 44 Md. 319, at page 336, in the following words: "Substance is to be considered the purpose of pleading -- whilst the forms prescribed by the Code, or any other of like character, to suit the facts of the case, may be used; the Courts must have regard to the substance of the pleading -- facts only are to be stated, not arguments, inferences, or matter of law or evidence, or of which the Court will take notice, ex officio." This case has been approved with special reference to pleas of limitations in the cases of Wallace v. Schaub, 81 Md. 594, page 597, 32 A. 324, and Brooks v. Preston, 106 Md. 693, at page 704, 68 A. 294. 

   Had the demurrer been overruled, the plea would have offered an absolute defense to two of the policies, because, as we have said, and as was said in the case of Kelch v. Keehn, it was impossible for notification[***20] of the assessment on these policies to have been made within one year after their termination on the effective date of the statute, that one-year period having expired prior thereto.  As to the other policy, it is possible that notice was given, in which case the time for prosecuting the suit would have been within three years after the date of the assessment.  If such notice was given after June 1, 1941, and before September 5, 1941, the suit was brought within time. The question whether or not notice was given as to this policy is, therefore, a matter of fact for the jury.  While the judgment must be reversed, the plaintiff is entitled to a new trial, in order to have an opportunity to contest the allegations of the plea as to this policy.

   Judgment reversed and new trial awarded with costs to the appellants. 

JOHN EDDY STEVENS v. DAISY E. STEVENS 
No. 29, October Term, 1944
 
Court of Appeals of Maryland
 
183 Md. 599; 39 A.2d 690; 1944 Md. LEXIS 193

 November  2, 1944, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, costs to be paid by the appellant.

CORE TERMS:  adultery, divorce, abandonment, accusations, matrimonii, desertion, vinculo, cruelty, decree, permanent alimony, nagging, cross-bill, roomers, excessively, suspicion, deserting, vicious, spouse, reasonable expectation, statutory period, pendente lite, reconciliation, inconvenience, instituted, unchastity, humiliate, persuade, paramour, alimony, degrade

COUNSEL: Eugene P. Childs for the appellant.

   Benjamin Michaelson for the appellee.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Bailey, Capper, and Henderson, JJ.  Bailey, J., delivered the opinion of the Court.

OPINIONBY: BAILEY

OPINION: [*600] [**690] John Eddy Stevens and Daisy E. Stevens were married on August 29, 1918.  Two children, a son and a daughter, were born of this marriage.  They lived at several places in Annapolis and in Anne Arundel County but, for a number of years prior to their separation on September 3, 1940, their home was on Dean Street in Annapolis.  On September 3, 1940, while Mrs. Stevens was in Baltimore for the day, Mr. Stevens took his clothes and left his home.  He returned later for his personal effects, but has never returned to resume marital relations with his wife, although she has requested him to do so. A few days later Mrs. Stevens instituted suit in the Circuit Court for Anne Arundel County for a divorce a mensa et thoro on[***3] the ground of desertion, in which suit an award of alimony pendente lite in the amount of $16 per week was made.  No further action has been taken in that suit.  On March 5, 1943, Mr. Stevens instituted suit in the same Court for a divorce a vinculo matrimonii on the ground of abandonment. To the bill of complaint in this case, Mrs. Stevens filed her answer denying the abandonment and alleging that Mr. Stevens had abandoned her and that he was guilty of adultery. The answer was filed on March 17, and on the same day Mrs. Stevens filed in said suit a cross-bill of complaint asking for a divorce a vinculo matrimonii on the grounds of abandonment and desertion, and of adultery, for permanent alimony and for alimony pendente lite and counsel fees.  Mr. Stevens answered the cross-bill, denying the abandonment and desertion, and the adultery. Testimony was taken before an Examiner.  The Chancellor, [**691] by his decree, dismissed the original bill filed by Mr. [*601] Stevens, granted Mrs. Stevens a divorce a vinculo matrimonii, and ordered Mr. Stevens to pay permanent alimony in the amount of $16 per week, counsel fees to her solicitor and the costs of [***4]suit.  It is from this decree that the present appeal is taken.

   The record is a voluminous one, but much of the testimony is irrelevant and immaterial.  Again, much of it relates to the alleged adultery of the husband, and, as the decree a vinculo matrimonii is based on the husband's desertion and not on his adultery, it is unnecessary for us to enter into a detailed discussion of that portion of the testimony pertaining to the adultery. It is sufficient for us to state that we agree with the Chancellor's conclusion that the wife did not meet the burden imposed upon her to prove her husband's adultery. Steinla v. Steinla, 178 Md. 367, 13 A 2d 534; Stern v. Stern, 173 Md. 689, 195 A. 565; Sterling v. Sterling, 145 Md. 631, 125 A. 809. As it is undisputed that the husband left the wife, it is for this Court to decide whether he was justified in so doing by reason of the conduct of the wife.  This must be determined from all the testimony.  It is a clearly defined issue of fact to be determined from the mass of conflicting evidence in the case and we feel that this Court is under no obligation to do more than state its conclusion, with the reasons therefor, on this[***5] factual issue. Silverberg v. Silverberg, 148 Md. 682, 130 A. 325; Freeny v. Freeny, 80 Md. 406, 408, 31 A. 304; Stirn v. Stirn, 183 Md. 36 A. 2d 695.  The testimony in this case satisfactorily established, with the necessary corroboration, that the husband had no justification for deserting his wife.  His conduct over a long period of time, in absenting himself from the home three or four evenings every week until as late as 2 o'clock A. M., without any explanation to his wife, his repeated visits to the home of Mrs. Woolford, under the circumstances appearing in the record, and his constant neglect of his wife in the little things which contribute to marital felicity, were sufficient to create in the wife such a state of suspicion as to cause much of the unpleasant nagging of which he [*602]complains.  And the evidence does not support his contention that he was deprived of the peace and enjoyment of his home and disturbed of his rest at night because his wife took roomers. Neither the nagging nor the inconveniences which might have been caused by the presence of roomers in the home are sufficient to constitute legal cruelty. It was said in Hyatt v. Hyatt[***6] , 173 Md. 693, 196 A. 317, that "nagging, abuse, cursing and swearing do not amount to 'cruelty of treatment' or 'excessively vicious conduct,' which will justify one spouse in deserting the other." Rudeness, use of profane and abusive language and sallies of passion, if not in a manner and degree endangering the other spouse's security or health, are not sufficient.  Mason v. Mason, 181 Md. 666, 30 A. 2d 748, and numerous cases there cited.  The evidence in this case reveals no facts which tend to indicate that at any time during their married life Mr. Stevens' life, person or health was endangered by any conduct on the part of his wife.

   The appellant urges, however, that the fact that his wife repeatedly accused him of infidelity is sufficient to bring this case within the rule laid down in the case of Silverberg v. Silverberg, supra, where it was held that malicious and false accusations of unchasity on the part of the wife made by the husband in the presence of his own and her friends were calculated to affect her health and destroy her peace of mind and happiness and were sufficient, when considered in relation to other acts of the husband, to justify a divorce a mensa [***7] et thoro on the ground of cruelty or excessively vicious conduct. But the record in this case discloses that Mrs. Stevens made no public accusations of unchastity against her husband.  As we have already stated, her husband's conduct was such as justly to arouse her suspicion and her accusations were always in private with her husband, with their children, with his alleged paramour, Mrs. Woolford, or with Mrs. Woolford's husband, and the purpose of the accusations was not to humiliate and degrade her husband but to persuade him to cease his attentions to Mrs. [*603] Woolford and his intimate association with her.  This was not cruelty of treatment, but only what any normal wife, who loved her husband and wanted to maintain a happy home for her family, would have done under the circumstances.  But the husband, instead of heeding her entreaties, persisted in continuing the association and finally left the home. His conduct in so doing, under the circumstances of this case, constituted abandonment and desertion of his wife.  As the abandonment has continued for the statutory period and [**692] is deliberate and final and the separation beyond any reasonable expectation of[***8] reconciliation, Mrs. Stevens is entitled to a divorce a vinculo matrimonii.

   The appellant does not challenge the decree in respect to the amount of permanent alimony and counsel fee.  We find no reason to disturb the conclusion of the Chancellor on the amount of permanent alimony awarded.  And we feel that the counsel fee was a reasonable one.

   For the reasons given the decree will be affirmed in all respects.

   Decree affirmed, costs to be paid by the appellant. 

NOAH A. HILLMAN v. FRANK STOCKETT, et al. 
No. 6, January Term (Adv.), 1945
 
Court of Appeals of Maryland
 
183 Md. 641; 39 A.2d 803; 1944 Md. LEXIS 199

 October  27, 1944, Decided  
 November  16, 1944, Filed

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, Jr., J.

DISPOSITION: It is for these reasons that we affirmed the order of the Court below.

CORE TERMS:  proposing, election, contradictory, voters, elected, duty, constitutional amendment, convention, voted, prescribed, revision, mandamus, three-fifths, conformity, embodying, mandatory, composed, embraced, demurrers, abstain, refrain, ballots, void, proposed amendment, prescribe, originate, amend, veto, cast, Constitutional Law

COUNSEL: Noah A. Hillman for the appellants.

   William C. Walsh, Attorney General, and Charles Markell, with whom were Hall Hammond, Deputy Attorney General[***4] , and Wilbur R. Dulin on the brief, for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Melvin, Bailey, Capper, and Henderson, JJ.  Marbury, C. J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*643] [**804] This case arose by the filing of a petition for the writ of mandamus in the Circuit Court for Anne Arundel County, on September 30, 1944.  The petitioner, Noah A. Hillman, recites that he is a citizen of the United States, and of the State of Maryland, a resident and tax payer of the City of Annapolis, and a member of the Bar of the State of Maryland.  The defendants are the Board of Supervisors of Election for Anne Arundel County. The [*644] Secretary of State of Maryland filed an intervening petition and was made a party defendant by order of Court.  All of the defendants demurred. The Court below sustained the demurrers and dismissed the petition.  An appeal was immediately taken to this Court.  On account of the public interest involved, and the necessity of a decision before the election of November 7, 1944, the case was advanced and heard on October 26, 1944.  A per curiam order was filed on October 27, 1944, affirming the[***5] order of the Court below. The reasons for the order are now given.

   The petition for mandamus recited the passage by the General Assembly of 1943, of two bills, each proposing amendments to the Constitution of Maryland. One of these is Chapter 772 and the other is Chapter 796.  Petitioner contended that these bills, proposing these amendments, were not in accord with the provisions of the Constitution prescribing the method by which it may be amended, and as a result, the Supervisors of Election were without power to print the propositions on the official ballots to be used at the election to be held at Anne Arundel County, on the 7th day of November.  The Court was asked to issue a writ commanding the Supervisors of Election to refrain and abstain from canvassing the proposed amendments, and, if time permitted, commanding them to refrain and abstain from printing the amendments upon the official ballots to be used at the election. The demurrers said that the petition was bad in substance and insufficient in law, that the facts set out in the petition did not entitle the petitioner to the issuance of the writ, that both Chapter 772 and Chapter 796 were valid, legal, proper and constitutional[***6] enactments proposing amendments to the Constitution of Maryland, and that the Court was without jurisdiction or power to grant the relief because the matters as to which the aid of the Court was sought were confined, by the Constitution of Maryland, to the legislative and executive branches of the State Government, and not to the judicial branch

   [*645] Inasmuch as the power of the Court is challenged in these demurrers, we shall first refer to that, although it was not stressed in the argument before us.  The questions raised by the petitioner do not have to do with the progression through the two houses of the Legislature of a bill proposing a constitutional amendment. Nor do they have to do with the determination whether a majority of votes were cast in favor of such amendment. These were the questions raised in the case of Worman v. Hagan, 78 Md. 152, 27 A. 610. The questions here have to do with the form of proposals to amend the Constitution, and a proper interpretation of certain [**805] sections of the Constitution, which it is claimed were applicable and were not followed by the General Assembly.  We are not dealing with amendments which have been voted on and[***7] proclaimed by the Executive.  We are dealing with the construction of certain sections of the Constitution, and the applicability of these sections to the proposals.  Construction of constitutional provisions has been too often and too frequently held to be within the province of the judicial branch of the Government, for there to be any doubt about it now.  We entertain none.  It is the province and the duty of the Courts to interpret the Constitution when questions involving its interpretation are properly before them.

   It was also contended by the appellees, although these contentions were abandoned at the hearing before us, that the petitioner, in none of the capacities in which he filed his petition, was entitled to ask the aid of the Courts, and that mandamus was not the proper remedy in this case.  In view of the abandonment, we shall not discuss these questions further than to say that there have been several cases in this Court, which uphold both the right of the petitioner to sue and the correctness of his procedure.  These are Pumphrey v. Mayor, etc., Baltimore, 47 Md. 145, 28 Am. Rep. 446; Levering v. Board of Supervisors, 129 Md. 335, 99 A. 360; Levering v. Board [***8]  of Park Commissioners, 134 Md. 48, 106 A. 176; Levering v. Board of Supervisors, 137 Md. 281, 112 A. 301; and Brawner v. Curran, 141 Md. 586, 119 A. 250.

   [*646] Petitioner contended that the titles to both Chapter 772 and Chapter 796 were insufficient and misleading, and did not correctly describe the purposes of the legislation, contrary to the provisions of Article III, Section 29, of the State Constitution.  This contention we shall consider first.  It applies to both chapters.  Section 29 of Article III provides for the style of "all laws of this State" and it refers throughout to "laws".  There is a clear distinction between bills and laws.  A bill is a proposal, which originates in either house of the General Assembly, and it may be amended or rejected in the other.  It does not become a law until it has been passed in each house by a majority of the whole number of members elected. It is then presented to the Governor, and if he signs it, it becomes a law.  He may veto it, and it may be passed over his veto, and thus become a law.  Or, the Governor may fail to return the bill within six days after it is presented to him, and upon such failure, the bill will[***9] become a law, unless the Legislature has adjourned and prevented its return.  All of this was recently discussed in the case of Robey v. Broersma, 181 Md. 325, beginning at page 339, 26 A. 2d 820, 29 A. 2d 827. Proposals, by the General Assembly, of amendments to the Constitution under Article XIV thereof, are by bills which have to be passed by three-fifths of all of the members elected to each of the two houses.  These bills are then published once a week, for at least three months, before they are submitted to the voters. The votes cast, for or against the proposals, are returned to the Governor after the election, and if it appears to him that the majority are cast in favor, then the Governor, by his proclamation, declares the amendments adopted, and thereafter the amendments are part of the Constitution.  The distinction between laws and bills proposing constitutional amendments was before this Court in the case of Warfield v. Vandiver, 101 Md. 78, 60 A. 538, 540. That case was the result of the refusal of the Governor to cause to be published a bill proposing a constitutional amendment which was not submitted to him for his [*647] approval, and which he, therefore, [***10] claimed was not operative.  The Court discussed the distinction between bills, which might become laws, and bills which proposed amendments to the Constitution.  It said that a proposal of an amendment to the Constitution was not legislation, and that whatever legislation the Governor had a right to sign ceased, when signed by him, to be a bill, and became a law.  The Court discussed Section 17 of Article II, of the Constitution, which is the section providing the duties of the Governor, with respect to bills which are intended to become laws and said, "The distinction between a bill and a law is carefully maintained throughout the foregoing section; and the plain and clear provisions of the section make it morally certain that it has no application to a proposed constitutional amendment." The provisions of Section 29 of Article III have likewise to do only with laws and not with bills.  A bill proposing a law may originate in either of the two houses of the General Assembly, with one title, pass through that house, go to the other house, and there be amended, both as to its title [**806] and as to the body of the enactment.  Its validity as a bill would not be affected[***11] by any discrepancies between its title and the body of the enactment, nor in the course of its progress through the Legislature is it required that the provisions of Section 29 apply to it.  It is only when it has finally passed, and become a law in one of the methods above set out, that Section 29 becomes operative upon it.  That section, therefore can never become operative upon a bill proposing a constitutional amendment, and such a bill is not subject to its provisions.

    Petitioner also contended that Chapter 772 and Chapter 796 were both null and void because they were in conflict, and that the Court should so hold both proposals.  It would seem to be obvious that this question was not before the Court.  Neither of the proposals had been voted on, neither might be adopted by the voters, or one might be adopted, and the other might fail of adoption.  The voters might conclude, as did the petitioner, that [*648] the two were contradictory, and, therefore, they might determine to adopt the one they preferred, and not to adopt the other.  The Court could not anticipate the action of the people.  It would be assuming powers, far beyond the scope of those given to the judiciary, [***12] were it to refuse to permit the people to choose between two contradictory proposals (if they were contradictory), by declaring both proposals void, in advance of the adoption of either.  If two contradictory provisions are placed in the Constitution, it might then become the duty of the Court to construe them and to determine what they mean.  Until that occasion arises, the Court has here only to do with proposals.  There is nothing in the Constitution to prevent the Legislature from making as many proposals as it chooses, and from making such proposals contradictory, in order to let the people choose between them.  The only requirement is that the proposals shall be made in the manner prescribed by the Constitution, and this brings us to the last and main contention of the petitioner.

   It is stated in 16 C. J. S., title "Constitutional Law", par. 7 a: "The constitutions of the several states respectively prescribe the method by which they may be amended or revised; and a particular constitution may be changed only by the method therein prescribed, and a failure to comply therewith renders an alleged amendment void" and further, "Provisions of a constitution regulating its own amendment, [***13] otherwise than by a convention, are not merely directory, but are mandatory; and a strict observance of every substantial requirement is essential to the validity of the proposed amendment".  In support of these statements are cited cases from several jurisdictions, among them the case of Brawner v. Supervisors of Elections, 141 Md. 586, 119 A. 250, 252. In that case it was held that "* * * the people of the state from whom the Legislature itself derives its powers, having prescribed in the Constitution of the state the manner in which its laws shall be enacted, it is not competent for the Legislature to prescribe any other or [*649] different way in which its laws may be enacted." The question before the Court there was whether an act providing a bonus for the residents of Maryland who served in the army and navy of the United States during the first World War, could be lawfully made to depend for its validity upon the affirmative vote of the people.  The Court was dealing with the enactment of a law, and it held that such a reference to the people was not the proper way under the Constitution to enact a law.  The same line of reasoning would prohibit the Legislature from[***14] proposing amendments to the Constitution in any other way than that prescribed by the Constitution.  In Cooley on Constitutional Limitations, 8th Ed., vol. 1, pp. 84 and 85, is found the following statement in connection with the amendment of constitutions, "But the will of the people to this end can only be expressed in the legitimate modes by which such a body politic can act, and which must either be prescribed by the constitution whose revision or amendment is sought, or by an act of the legislative department of the State, which alone would be authorized to speak for the people upon this subject, and to point out a mode of the expression of their will in the absence of any provision for amendment or revision contained in the constitution itself." A number of cases from other states are cited in support of this statement.

    We think it is a correct statement of the law that the provisions of the Constitution as to its own amendment are mandatory upon the Legislature, and that if they are not followed, a proposal not in conformity with them should not be submitted to the voters.

   [**807] The pertinent part of the Constitution is found in Article XIV, Section I, which says: [***15] "The General Assembly may propose Amendments to this Constitution; provided that each Amendment shall be embraced in a separate Bill, embodying the Article or Section, as the same will stand when amended and passed by three-fifths of all the members elected to each of the two Houses, by yeas and nays, to be entered on the Journals [*650] with the proposed Amendment.  * * * When two or more amendments shall be submitted in manner aforesaid, to the voters of this State at the same election, they shall be so submitted as that each amendment shall be voted on separately." Petitioner contended that by Chapter 772 there was proposed more than one amendment, and that the two or more amendments submitted were not submitted in separate bills, so that they could be voted on separately.  The reason given for holding that Chapter 772 contained more than one amendment is that it proposes to amend Section 5 of Part 1, of Article IV, of the Constitution, title "Judiciary Department", Section 14 of Part 2 of the same Article, and Section 21 of Part 3 of the same Article, and also to add a new section to the same article to be known as Section 18A of Part 2.  Section 5 changes the time of election [***16]of judges from quadrennial elections to biennial general elections for representatives in Congress.  Section 14 changes the entire judicial framework of this Court and the lower Courts, reducing the number of judges in this Court, establishing new appellate circuits, and providing for the relinquishment by the judges of this Court of those nisi prius duties they had as Judges of the circuits in which they were elected, and of which they were Chief Judges.  Section 18A provides that the Chief Judge of this Court shall be the administrative head of the judicial system of the State, with certain duties in connection therewith, and the power, under certain circumstances, and subject to the rules and regulations this Court may make, to designate judges, both of the Court of Appeals and of the several circuits, to sit elsewhere, both in the nisi prius Courts and on this Court.  Section 21 fixes the number of judges for each circuit, making certain changes to conform to the provisions of the other sections, and providing for the continuation of the orderly procedure of the administration of justice, after the changes made in the other sections shall go into effect.  In each case the[***17] bill sets out in full the section as the same will stand when amended, and in the case of the [*651] new section, sets this out in full.  It does not set out the entire article as it would stand when amended, and it cannot be reasonably intended that this has to be done. The judiciary article of the Constitution occupies pages 91 to 119, both inclusive, in Flack's Annotated Code, and while some of this is taken up with annotations, it would be a practical impossibility to print the whole article on the ballots to be submitted to the voters, and its publication once a week for three months prior to the election would be prohibitive financially.  It cannot be supposed that the framers of the Constitution intended this to be done, unless a very clear statement to that effect is found in the Constitution.  We do not find such a statement.  Section 1 of Article XIV, already quoted, does not say that each amendment shall be embraced in a bill embodying the entire article as the latter will stand when amended.  The reasonable conclusion from its wording is that while each amendment shall be in a separate bill, nothing else need be in it but the amendment.  If certain changed[***18] sections of an article are proposed as one amendment, it is only necessary to include those sections as amended, in the bill, and it is neither necessary nor proper to put all the other sections of the article which are not amended, in the bill with the amended sections.  This conclusion is strengthened by an examination of the original draft of Article XIV, Section 1, as proposed in the Constitutional Convention of 1867.  It will be found in the Proceedings of the Convention, on page 639, and also in Perlman's Debates, on page 271, as proposed by the Committee Respecting Future Amendments to the Constitution, headed by the late William P. Maulsby, a distinguished lawyer of Frederick County.  Section 1, as thus proposed, reads as follows: "Any specific amendment or amendments to this Constitution may be proposed by the General Assembly, provided the same shall be by bill proposing a separate amendment which shall embody the entire article or section as the same will stand when amended".  (The italics are ours.) It does not appear that any debate was held on this proposal on the [*652] floor of the convention. It was referred to the Committee on Revision and Compilation. [***19]Certain amendments were made in the committee, these were reported to the convention, and the section was [**808] adopted as it now stands in the Constitution.  Perlman's Debates, page 449.  The significant change is that as the section was proposed, the bill proposing a separate amendment had to embody the entire article or section as the same would stand when amended.  In the section adopted, the word "entire" is left out.  The original proposal also authorized specific amendments, rather than amendments in general, and the leaving out of the word "specific", if it indicates anything at all, indicates a broadening of the power of the Legislature to determine what an amendment authorized by the section is.  It is also a reasonable conclusion that the framers of the Constitution did not intend, if the Legislature desired to change two or more sections, that each section had to be placed in a separate amendment.  Article XIV does not say so.  The sections of the Constitution are interrelated.  Many of them are dependent on others.  For instance, in the sections of the judiciary article to be changed by the proposed amendment, Section 14 provides that the Court of Appeals[***20] shall be composed of the Chief Judges of the first seven of the several judicial circuits of the State, etc.  To find out how these Chief Judges are named, it is necessary to look at Section 21.  If the Legislature desired, as it did, to submit an amendment changing the composition of the Court of Appeals so that it would be composed, not of Chief Judges, but of specially elected Judges from newly created appellate circuits, it was necessary for it, not only to propose an amendment to Section 14, but also to propose an amendment to Section 21.  This would, in reality, be only one general change, but if it had to be submitted by two separate proposals, one might be adopted, and the other not, with great consequent confusion and disorganization of the Courts.  The Constitutional Convention must be presumed to have realized that this was so, since it divided the Constitution into these sections, which, as we have stated, are interrelated.

   [*653] What it seems to us was intended, is that the word "amendment" used in Article XIV, Section 1, meant a proposal of changes in a particular subject, such as in this case, the State judiciary.  The Legislature was empowered in the first instance[***21] to determine what changes it considered advisable and to put these changes in one bill, this whether they were all in one section of the Constitution or whether they were in several sections, or whether they were not in the Constitution at all, and new sections had to be added.  We cannot assume that the Legislature would propose an amendment, which might contain matters obviously not related, but if it did, then the Courts would have power to pass upon the proposal and to determine whether or not Article XIV had been followed.  In the absence of clear violation, the judgment of the Legislature as to what is related and what is not related should be respected, and the Courts should not interfere.  It does not seem to us, upon a careful examination of Chapter 772, that there are any of the proposals contained in it which are not related to the general subject matter. Therefore, we conclude that only one amendment is proposed by Chapter 772 and that that chapter submits an amendment in accordance with the provisions of Section 1 of Article XIV of the Constitution.

   It is for these reasons that we affirmed the order of the Court below. 

JEROME L. TAUSSIG, et ux. v. EVERETT K. VAN DEUSEN, et ux. 
No. 31, April Term, 1944
 
Court of Appeals of Maryland
 
183 Md. 436; 37 A.2d 915; 1944 Md. LEXIS 176

 June  14, 1944, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed with costs.

CORE TERMS:  specific performance, easement, streets, tract, vendor, adverse possession, fenced, tract of land, right to use, highways, depreciate, conveyed, electric, plat, contract to purchase, electric light, dedication, continuously, ownership, surveyed, decree, farm, sufficient to support, right of way granted, reasonable doubt, public authority, contract of sale, right of way, laid down, purchaser

COUNSEL: Submitted on brief by John S. Stanley, J. Sarsfield Sweeney, and Hershey, Donaldson, Williams & Stanley, for the appellants.

   Submitted on brief by G. W. S. Musgrave and James E. Stewart for the appellees.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Melvin, Bailey, and Capper, JJ.  Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*437] [**916] On April 21, 1942, Jerome L. Taussig and Hedwig T. Taussig, his wife, entered into a written agreement with Everett K. Van Deusen and Dorothy Van Deusen, his wife, to purchase a parcel of land containing 20 acres together[***3] with improvements thereon situated in Anne Arundel County for the price of $5,550, of which $500 was paid on the execution of the contract, and the balance was to be paid on or before the 1st day of June, [*438]1942.  The purchasers refused to pay the balance of the purchase price, claiming that the sellers were unable to convey to them a good and unencumbered estate in fee simple.  Whereupon Everett K. Van Deusen and Dorothy Van Deusen, appellees here, filed a bill for specific performance of the contract against Jerome L. Taussig and Hedwig T. Taussig, appellants here, in the Circuit Court for Anne Arundel County.  After answer and stipulation were filed and testimony submitted, the Chancellor, by decree dated March 22, 1944, ordered specific performance of the contract from which decree the appellants appeal to this Court.

   It was stipulated and agreed between the parties that the only part of the tract agreed to be sold to which they question the title is two thirds of one lot, No. 88.  Appellants also object to taking title for the reason that certain streets or avenues were laid out through the tract of land about the year 1871 by a plat recorded among the Land Records[***4] of Anne Arundel County and to a right of way granted in January, 1934, to the Consolidated Gas, Electric Light and Power Company for the purpose of enabling that company to maintain an electric line over certain property.  In this case we are therefore concerned only with the title to two-thirds of lot No. 88, the avenues running through the property, and the right of way granted for an electric line.

   In 1871 John Hubner conveyed certain lands, of which the tract in question is a part, to Thomas J. Simpson, who later laid out three avenues through the property and sold a number of lots, including lot No. 88.  The record title to this lot No. 88 appears to be defective.  After numerous conveyances of the tract of which the land in question is a part, in 1906 it was sold to Herman Winter, who had the property surveyed and a description written therefrom describing the tract by metes, bounds, courses and distances, which description was incorporated in the deed and which contained the land covered by the contract of sale now before this Court.  The appellants admit that Herman Winter went into possession of [*439] the entire tract, including the lot in dispute, under the deed given[***5] him in 1906 under color of title.

   [**917] On November 24, 1938, Herman Winter and wife conveyed 30.4 acres of land to the appellees herein of which the tract covered by the contract of sale is a part.

   The question before this Court is whether the appellees have acquired a title that can be safely accepted by the appellants.

   Herman Winter and Mary Winter, his wife, testified that when they purchased the property in 1906, they had it surveyed, went into possession of it, caused the same to be fenced in and kept fenced, cultivated the property as a farm and have ever since resided upon some part of it; that in 1938 they conveyed 30.4 acres to the appellees, who took possession and resided upon it until June, 1942, when the agreement of sale in this case was executed.  They further stated that at no time since they entered into possession of said tract has any one ever laid claim to ownership of any lot or lots in said tract and that they never heard of the possibility of such a claim until this case arose.  They further say that not at any time during said period have any avenues, streets or highways been opened or used upon said tract of land, but the whole thereof has been continuously[***6] fenced in by them and the Van Deusens and used solely as a farm. They say that they continuously paid the taxes on the property in dispute from 1906 to 1938 and upon the remaining portion thereof which they still own from 1938 to 1943.  During the entire period from 1906 to November, 1938, they held uninterrupted, continuous, undisputed and notorious possession of said land under contract, and no one has at any time claimed ownership of any lots or the right to use any avenues, streets or highways over or upon the said land.

    Dorothy Van Deusen, granddaughter of Herman Winter, and her husband, appellees, say that they have occupied the land of which the tract in question is a part from November, 1938, until June, 1942, when the tract under contract was sold to the appellants, who went into [*440] immediate possession and still occupy it.  Mrs. Van Deusen says that she has been familiar with the property all her life and knows that her grandfather has continuously used it as a farm and kept it fenced. They say that at no time have they ever heard of any claimant to any lot or lots thereon or the right to use any evenues, streets or highways nor have any such ever existed.

   Three[***7] other witnesses substantiate the testimony of the Winters and the Van Deusens.

   Appellants admit that the testimony of the witnesses for the appellees indicates that all of the property was actually enclosed and used by the appellees.  No testimony was offered by the appellants.

   During the period from 1906 to the date of testimony in 1943, no one having made any claim for any part of the land and no recognized right having been in any one except the Winters and Van Deusens, this Court finds that under the testimony, adverse possession sufficient to support a title in the appellees exists.  Stump v. Henry, 6 Md. 201, 61 Am. Dec. 300; Erdman v. Corse, 87 Md. 506, 40 A. 107; Sowers v. Keedy, 135 Md. 448, 109 A. 143; Peper v. Traeger, 152 Md. 174, 136 A. 537; Novak Realty Co. v. Trustees of Orphans' Home, 153 Md. 390, 138 A. 250; Parks v. Welch, 174 Md. 548, 199 A. 506.

   The avenues and streets laid down on the plat were never actually laid out on the ground, and they have never been used nor has any one claimed the right to use them nor has there been acceptance by the public or by any public authority. The filing of the plat was nothing more than an offer which[***8] does not become a dedication until accepted.  Beale v. Takoma Park, 130 Md. 297, 100 A. 379; Mullan v. Hochman, 157 Md. 213, 145 A. 554; North Beach v. Land & Improvement Co., 172 Md. 101, 191 A. 71; Title, Inc., v. Dubel, 177 Md. 387, 9 A. 2d 591. It is certain from the testimony that since 1906 the part of the avenues or streets which ran through the property in question has been fenced in and farmed.  If there ever was any easement over the streets and avenues, such easement under the facts in this case has been lost and [*441] is not a cloud on the title.  Canton Co. v. Baltimore City, 106 Md. 69, 66 A. 679, 67 A. 274, 11 L. R. A., N. S., 129; Bonsal v. B. & O. R. Co., 138 Md. 309, 113 A. 751; United Finance Corp. v. Royal Realty Corp., 172 Md. 138, 191 A. 81.

   According to the stipulation filed, the Consolidated Gas, Electric Light and Power Company was granted a right of way by Herman Winter and wife on January 27, 1934.  It is not shown that this [**918] easement touches the property in question here, but as well pointed out by the Chancellor in his opinion, if it does, the defendants must have known it was there when they bought the property[***9] as an electric line is very apparent.  For an easement to be a good defense against specific performances, it must be shown that such easement materially depreciates the value of the property.  Electricity in homes is an advantage and not a detriment and a material element in helping the sale of property, and it certainly does not depreciate the value and is not such an easement as to defeat specific performance. Suburban Garden Farm Homes Corp. v. Adams, 171 Md. 212, 188 A. 808.

    Appellants contend that it would be unfair and unreasonable to require them to accept the title offered by the appellees when at any time the unknown successors of the record owner of the lot in dispute may make claim upon them and offer evidence which contradicts that presented here and thereby subject the appellants to undue inconveniences and expense in defense of their rights and possible loss of a valuable part of their property.  Generally speaking, the proper parties to a suit involving adverse possession of real property are those who claim ownership. Persons who have a possible interest in real estate are proper, though not necessary, parties to a suit by those claiming adversely to them against[***10] those to whom they have contracted to sell the property, to determine the validity of the vendors' title.  1 American Jurisprudence, p. 923, Section 230; St. Peter's Church v. Bragaw, 144 N. C. 126, 56 S. E. 688, 10 L. R. A., N. S., 633.  As between vendors and vendees, in cases of specific [*442] performance of real estate, as a general and almost universal rule, the Court is bound "'to ascertain and determine, as best it may, what the law is, and to take that to be the law which it has so ascertained and determined,' Alexander v. Mills, L. R. 6 Ch. 124; Osborne v. Roulett, 13 Ch. Div. 774; Forster v. Abraham, 17 Eq. 351"; Chesman v. Cummings, 142 Mass. 65, 67, 68, 7 N. E. 13, 14, 15; Harvard Law Review, Vol. LVII, No. 4, pp. 575, 576.  The possibility that the Court may, at some time in the future, when other parties are before it, disregard its own precedent, and decide the same question, depending on the same facts or different facts, in a different way is so remote that it should not be permitted to arrest the development and interfere with the salability of land, possibly for a long period of time.  Ebling v. Dreyer, 149 N. Y. 460, 44 N. E. [***11]155.

   It is true that specific performance of contracts by courts of equity is not a matter of absolute right in the parties applying but of sound discretion in the Court to be exercised upon consideration of all the circumstances in the case, and the Court will be controlled in the exercise of its discretion by established doctrines and settled principles.  Where the Court is satisfied that the action asked for is fair, just and reasonable in every respect, the remedy will be granted.  Semmes v. Worthington, 38 Md. 298; Powichdrowski v. Sicinski, 139 Md. 376, 384, 114 A. 899; Gordon v. Gross, 141 Md. 490, 119 A. 267; Camden Sewer Co. v. Salisbury, 162 Md. 454, 460, 160 A. 4; Flack's Code, 1939, Article 57, Section 10.  The mere fact that the vendors' title depends upon adverse possession is no defense to a bill for specific performance. Bullock v. Staylor et al., 125 Md. 699, 96 A. 398. We therefore conclude that there is no reasonable doubt of appellees' title to the property which they have agreed to sell and the appellants have agreed to buy, and the decree appealed from will therefore be affirmed.  Peper v. Traeger, supra, 152 Md. 174, 181, 136 A. [***12]537; Title, Inc., v. Dubel, supra, 177 Md. 387, 392, 9 A. 2d 591.

   Decree affirmed with costs. 

ROBERT HARRISON v. RICHARD LINDSAY WILSON PRENTICE, et al. 
No. 34, April Term, 1944
 
Court of Appeals of Maryland
 
183 Md. 474; 38 A.2d 101; 1944 Md. LEXIS 179

 June  14, 1944, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, Jr., J.

DISPOSITION: Order reversed, and cause remanded for further proceedings in accordance with this opinion, the costs to be paid out of the estate of Constance Hart Harrison, deceased.

CORE TERMS:  real estate, daughters, testator, executor, beneficiary, annuity, reconversion, personal property, conversion, convert, unsold, settlement, one-half, election, real property, distributed, reconvert, converted, residue, survived, equitable conversion, caveat, elect, interest in real estate, surviving spouse, personal estate, deceased spouse, descendant, elected, legacies

COUNSEL: William J. McWilliams, with whom were McWilliams, Duckett & Haley on the the brief, for the appellant.

   Carlyle Barton, with whom was Wm. A. Andrews on the brief, for the appellees, Richard Lindsay Wilson Prentice and others.

   Linwood L. Clark for the appellee, Lizzie Ennis.

JUDGES: Marbury, C. J., Delaplaine, Collins, Grason, Bailey, and Capper, JJ. Delaplaine, J., delivered the opinion of the court.

OPINIONBY: DELAPLAINE

OPINION: [*476] [**103] Walter H. Hart, of Annapolis, died in 1937, leaving an estate appraised at several hundred thousand dollars, consisting principally of a number of parcels of land situated in this State.  His will, admitted to probate in the Orphans' Court of Anne Arundel County, appointed Mercantile Trust Company of Baltimore his executor, directed the executor to convert his entire estate into cash, gave each of his daughters, Grace Hart and Constance Harrison, an annuity[***4] of $200 per month for a period of ten years, made certain specific bequests, and gave the residue of his estate to the Salvation Army, a body corporate, for the use of its Annapolis branch.

   On January 20, 1939, a caveat filed by the daughters was settled by an agreement, which contains the following provisions: (1) that the executor is authorized to sell such parcels of real estate as the daughters and the Salvation Army may in writing direct for the purpose of raising money to pay debts, legacies, taxes and costs of administration; (2) that the daughters will assign their annuities to the Salvation Army upon its request; (3) that the Salvation Army will thereupon file its election with the executor to receive the real estate remaining unsold "in its unconverted form," so that it will be reconverted and thus remain unaffected by the testator's direction to sell, and become vested in the Salvation Army as sole residuary devisee; (4) that the Salvation Army, after acquiring title to the unsold real estate, will give the daughters one-half of the money distributed in the Orphans' Court, and convey to them as tenants in common one-half of the real estate at its appraised value, [*477][***5] to be selected by lot, the daughters and the Salvation Army drawing alternately, all adjustments of taxes and rents to be made before the Salvation Army conveys the real estate to them, provided that the total value of money and real estate delivered to them shall not exceed $100,000.  On March 20, 1939, Linwood L. Clark, who was bequeathed a stick pin and requested to see that the will "is faithfully carried out with justice to everyone," instituted the pending equity proceedings in the Circuit Court for Anne Arundel County to test the validity of the agreement.  The Court, upholding the agreement, ordered the estate to be distributed in accordance with its provisions.  On May 3, 1940, the daughters and the Salvation Army applied for a judicial declaration of the proper rate of State inheritance tax payable on the residue. It was finally determined by the Court of Appeals that, when a caveat proceeding has been compromised, the rate of inheritance tax is controlled, not by the provisions of the will, but by the amount received under the terms of the agreement.  Hart v. Mercantile Trust Co. of Baltimore, 180 Md. 218, 23 A. 2d 682.

   On March 20, 1942, Mercantile Trust Company reported[***6] that Constance [**104] Harrison, whose domicile was in Suffolk County, England, had died and that her will had been probated in Ipswick, and thereupon asked for instruction as to the proper method of determining the interests of the parties under the settlement agreement.  At that time the executor had about $40,000 more cash than necessary for payment of debts, legacies, taxes and costs of administration; but it was considered advisable to offer the remaining real estate for sale without waiting for a final decision on the subject. Accordingly, on January 8, 1943, the Chancellor ordered the executor to continue making sales, and to hold the proceeds subject to future determination of the interests of the parties, provided that in such determination "the proceeds of said sales shall be considered to be the real estate itself, to all intents and purposes and as fully as though said sales had not been made." Robert Harrison, appellant, [*478] filed his petition on February 16, 1944, claiming that his deceased wife, Constance Harrison, left an interest in real estate in Maryland in which he is entitled to share under the law of this State.  He alleged that his wife had sued[***7] him for divorce but had never obtained a decree, and while he had seven children of his own, she had none.  If Mrs. Harrison left any personal estate in Maryland, it would be distributed according to the Act of Parliament, which provides that where a person dies domiciled in England, leaving a wife or husband or dependent child, and leaving a will, "then, if the court * * * is of opinion that the will does not make reasonable provision for the maintenance of that dependent, the court may order that such reasonable provision as the court thinks fit shall * * * be made out of the testator's net estate for the maintenance of that dependent." Inheritance (Family Provision) Act, 1938; Public General Acts of Parliament, 1937-38, ch. 45.  For it is recognized that the transfer of personal property is governed by the lex domicilii.  When the owner of personal property dies, the law of the country in which he has his domicile, and not the law of the country in which the property is found, regulates the succession.  Noonan v. Kemp, 34 Md. 73; Craig v. Craig, 140 Md. 322, 328, 117 A. 756. But the interest of the surviving spouse in the real estate of a deceased spouse is determined[***8] by the lex loci rei sitae.  Restatement, Conflict of Laws, Sec. 248.  The State has plenary power to determine the manner in which real estate therein may be conveyed or devised, and to prescribe the succession in case of intestacy.  Bish v. Bish, 181 Md. 621, 31 A. 2d 248; Roach v. Jurchak, 182 Md. 646, 35 A. 2d 817.

   The Maryland testamentary statute provides that, if in effect nothing passes to the surviving husband, under a devise in the will of a deceased wife, he is not barred thereby, whether he makes a renunciation or not, but he takes one-third of the real estate as heir and one-third of the surplus personal estate, if his wife is survived by descendants; or one-half of the real estate as heir and [*479] one-half of the surplus personal estate, if his wife is not survived by descendants, but is survived by father or mother.  Code, 1939, Art. 93, Secs. 318, 330.  Our inheritance statute also provides that a surviving spouse shall take as heir the same share in any real property within this State, belonging to the deceased spouse at the time of his or her death, though the deceased spouse dies testate, which the surviving spouse would take in the personal property[***9] of a resident spouse dying testate.  Code, 1939, Art. 46, Sec. 3.  If a wife makes no provision in her will for her husband, no renunciation is necessary in order to receive his lawful share in her estate. Pacholder v. Rosenheim, 129 Md. 455, 99 A. 672; Marriott v. Marriott, 175 Md. 567, 575, 3 A. 2d 493. Hence, if Mrs. Harrison is survived by her mother, but not by any descendant, her husband is entitled to one-half of her real estate. However, the Chancellor held that she did not leave any interest in real estate in Maryland.  The surviving husband is now appealing to this Court from an order sustaining demurrers to his petition.

   It is a familiar doctrine of equity that where a testator manifests a clear intention that his real estate shall be sold and the proceeds thereof distributed, the court considers the real estate converted into money at the time of the testator's death, unless there is some provision in the will which postpones the time of conversion. Reiff v. Strite, 54 Md. 298; Talbott v. Compher, 136 Md. 95, 110 A. 100; Miller v. Hirschmann, 170 Md. 145, 148, 183 A. 259. The basis of the doctrine of equitable conversion, under which real estate [***10]is considered for certain purposes as personal property, and personal property as real estate, [**105] is the intention of the party creating a right in the property, and the maxim "Equity regards that as done which ought to be done." Craig v. Leslie, 3 Wheat. 563, 578, 4 L. Ed. 460, 463; Sands v. Church of the Ascension and Prince of Peace, 181 Md. 536, 30 A. 2d 771, 776. In order that the doctrine may apply there must be an absolute obligation to convert either immediately or at a future time.  A discretionary power, or mere expression [*480] of desire that a sale be made, is not sufficient.  But if the direction to sell is mandatory, the doctrine of equitable conversion is not inapplicable merely because the time or manner of conversion is within the discretion of the person directed to make it.  Ford v. Ford, 70 Wis. 19, 33 N. W. 188, 5 Am. St. Rep. 117. The allowance of ten years which the testator gave the executor in which to convert all the property into money, and the testator's direction to convert the estate into cash "as promptly as may be done" did not prevent the direction from being imperative, but resulted in an equitable conversion at the time[***11] of the testator's death.

   However, even though real property may be constructively converted, the person entitled to the beneficial interest may elect to take the property and thus cause a reconversion. This principle is founded upon the presumption that the power to sell and convert into money is given by the testator for the benefit of the recipients of his bounty, and is not intended to prevent the beneficiaries from taking the land itself, if they so elect before the sale has actually been made.  Reconversion is the result of an election expressly made by the person entitled to the property or inferred by a court of equity.  The beneficiaries may make the election either by application to the court of equity or by unequivocal acts or declarations clearly manifesting a desire to reconvert. Gerling v. Wyand, 147 Md. 117, 127 A. 486; Herman v. Hurst, 160 Md. 96, 153 A. 24; Mellen v. Mellen, 139 N. Y. 210, 34 N. E. 925, 928; Strickler v. Byrd, 171 Va. 347, 198 S. E. 918, 130 A. L. R. 1373. In this case there is no doubt that the beneficiaries elected to reconvert. Their agreement of settlement explicitly states that the unsold real estate shall be considered as reconverted [***12] into its actual form as real estate. A compromise agreement between contesting beneficiaries to take real estate, which the testator ordered to be sold, in order to make a settlement of their interests, is sufficient to evidence an intention to reconvert. Bouslough v. Bouslough, 306 Ill. 24, 137 N. E. 517; 4 Pomeroy, Equity Jurisprudence, 5th [*481] Edition, Sec. 1177. This agreement had the effect of defeating the executor's power of sale as given by the will.  Hadesty v. Hadesty, 331 Pa. 81, 200 A. 6; 5 Thompson on Real Property, Permanent Edition, Sec. 2731.  It is true that the daughters and the Salvation Army authorized the executor to sell any parcels which they may direct in writing to be sold for payment of debts, legacies, taxes and costs of administration; but in this very way they established their joint control over the disposition of the property.  None of the pieces of property could be sold by the daughters alone or the Salvation Army alone, or by the executor without their joint direction.  The beneficiaries elected, not to have the properties sold in accordance with the mandate of the will, but to have it sold in accordance with their own desires. [***13] After the beneficiaries rejected the terms of the will in respect to the manner of sale, and mutually agreed to change the terms of the will in this respect, the contention that there was no reconversion is untenable.  Kaufmann v. Kaufmann, 226 Mo. App. 172, 43 S. W. 2d 879, 881.

   The beneficiaries in this case were sui juris.  It is a general rule that all persons who are sui juris, and who have the exclusive beneficial interest in real property constructively converted, may elected to take the property in its actual condition.  Wyatt v. Stillman Institute, 303 Mo. 94, 260 S. W. 73; 18 C. J. S., Conversion, Sec. 55.  It was insisted by counsel that the Salvation Army did not have the right to enter into the compromise agreement because the testator gave the residue of his estate for a charitable use and that the taking of real estate, instead of money, by the Salvation Army, would be inconsistent with the testator's wishes.  We cannot accept that view because (1) the will distinctly states that the residue may be either real estate or personal property, and either corpus or income, and (2) the question is foreclosed by the decree of November 9, 1939, sustaining[***14] the validity of the agreement. It is unquestioned that the right to reconvert must be exercised in an unequivocal [*482] manner, so as to leave no doubt of the intention of the beneficiaries. But the daughters and the Salvation Army unequivocally indicated their intention to elect to take the real estate. The daughters are [**106] bound to assign their annuities to the Salvation Army, and the Salvation Army is bound to file its election to receive the real estate remaining unsold.

   It appears from the record that the agreement of settlement was signed, sealed, witnessed and acknowledged as the act and deed of the parties.  It is elementary that where an agreement has been entered into by competent parties, it is not within the power of either party to rescind it without an option to do so or without the consent of the other party, in the absence of fraud, duress or undue influence, or unless the equities are such that he should not be permitted to enforce it.  A meeting of the minds is required, not only to make a contract, but also to rescind or modify it after it has been made.  Vincent v. Palmer, 179 Md. 356, 19 A. 2d 183. It is conceded that the daughters have not[***15] assigned their annuities, and the Salvation Army has not filed its election to take the real estate. But these are formal provisions which the beneficiaries prescribed to chart the course of their procedure until the estate is finally settled, and their delay in following the required steps does not vitiate the agreement.  It is the opinion of this Court that a change in the order of procedure, and not a revocation of the agreement, was mutually agreed upon by the parties with the sanction of the Chancellor.  While Constance Harrison's annuity expired at her death, her sister will be required to assign her annuity before final settlement is made.  The several properties, or their equivalent in money, must be drawn by lot, unless the parties agree to adopt some other plan of settlement. The Salvation Army is required to deliver to the daughters the amounts received from the sales, and not the appraised values, and also the rents to which they are entitled.

   [*483] Inasmuch as a reconversion was caused by the agreement of settlement, Constance Harrison left in interest in real estate which passes under the Maryland law of descent, rather than distribution, upon the death of the[***16] beneficiary. Hadesty v. Hadesty, 331 Pa. 81, 200 A. 6. We must, therefore, reverse the order sustaining the demurrers to her husband's petition. 

   Order reversed, and cause remanded for further proceedings in accordance with this opinion, the costs to be paid out of the estate of Constance Hart Harrison, deceased. 

SAMUEL BORSSUCK v. THEODORE T. PANTALEO et ux. 
No. 16, January Term, 1944
 
Court of Appeals of Maryland
 
183 Md. 148; 36 A.2d 527; 1944 Md. LEXIS 148; 156 A.L.R.1140

 March  23, 1944, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, C. J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  chancellor, feet, adjoining, restrictive covenants, building line, covenant, architect, erection, porch, neighbor, decree, specific relief, actual damages, issues of fact, new trial, lot owner, studding, framed, front, grave, built, deed, abuse of discretion, constructed, inasmuch, prevail, injunction to restrain, conflicting evidence, complete relief, dwelling house

COUNSEL: Williams J. McWilliams, with whom were William Townshend and Albert J. Goodman on the brief, for the appellant.

   George B. Woelfel for the appellees.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, and Bailey, JJ.  Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*150] [***4] [**528] The appellees filed their bill of complaint in the Circuit Court for Anne Arundel County for an injunction restraining the appellant from proceeding with the erection of a dwelling house, and for further relief.  The appellant answered and testimony was taken.  It showed that the appellees, as tenants by the entireties, had purchased a house and lot in a subdivision in the City of Annapolis from the Life Long Homes, Inc., on December 2, 1940, and that subsequently the appellant on April 23, 1941, had purchased a lot in the same subdivision adjoining that of the appellees, and had started to construct a large dwelling house thereon.  All of the lots in this subdivision were subject to certain restrictions.  One was that no building should be located on any residential building lot nearer than thirty feet to the front lot line, or nearer than five feet to any side [**529] street line.  The appellant's deed did not list the restrictions which were numerous, but did contain the statement that the property was to be held "subject, however, to the restrictions in chain of title." The restrictions were known to the attorney who examined the title, and prepared the appellant's [***5]deed, but he did not communicate them to the appellant.  The latter arranged with an architect to prepare plans for [*151] a dwelling to be erected on the property.  The architect did not look up the restrictions, but assumed that the building line was twenty-five from the lot line rather than thirty, because that was the general rule in the City of Annapolis.  Bids were asked and a contract made with a builder who was also ignorant of the restrictions and was given no information about them.  As a result the house was planned with its wall a little over four feet beyond the front building line, and if the steps are counted, a little over seven feet beyond the front building line. The outline of the building, according to the architect, was staked out on the lot on December 7, 1942, and the foundation was completed about the 21st or 22nd of December.  Nothing was done thereafter until after New Year's, and then the studding was put in and it became apparent then, if it was not apparent before, that the entire building was going to extend beyond the building line. There is some disagreement in the testimony as to when the appellees first complained.  The appellees testified that[***6] they thought that a porch was going to be built on that side of the house, and they did not mind that because it did not cut off their view, but when they saw the studding, it became apparent that the wall of the house was going to extend four feet beyond the building line, and then they began to object.  They first saw the contractor and then the architect, and finally called the appellant.  None of these objections produced any result except conversations, and the building went on so that finally the appellees filed their bill of complaint.  No preliminary injunction was issued, and the appellant did not stop his building.  The house was practically completed, at least so far as the outside was concerned, when the case was first heard below.  The chancellor held that it would be inequitable to direct the removal of the building on which $10,000 or more had been spent, and, therefore, did not grant the specific relief prayed for.  He felt, however, that the appellees might be entitled to damages, and accordingly passed an order directing that certain [*152] issues be framed and submitted to the law side of the Circuit Court for Anne Arundel County for trial by jury.  These issues [***7]were first, did the complainants sustain actual damage as the result of the appellant erecting his house contrary to the covenants referred to in his deed, and second, if the jury's answer to the first issue be yes, what is the amount of such damage?  The issues were then removed to the Circuit Court for Prince George's County, and on trial there before a jury, the answer to the first issue was yes, and the answer to the second issue was $1,500.  When the result of this trial was certified to the chancellor, he passed a final decree denying a writ of injunction, but giving the appellees a money decree for $1,500 damages.  From that decree the appeal comes here.

   The appellant raises three questions.  First, the correctness of the chancellor in refusing to dismiss the bill entirely at the close of the evidence taken before him.  Second, was the chancellor's action in submitting the issue of damages to the law court an abuse or unwarranted exercise of discretion. Third, was the chancellor correct in adopting the verdict of the jury and again refusing to dismiss the bill of complaint.  They will be considered in order.

   The basis of the appellant's first contention seems founded on[***8] the general statement that the law does not favor restrictive covenants which is, of course, true.  There is, however, no question here of the validity of these restrictions or of their violation.  The fact that they were violated unintentionally does not prevent damage and injury being done to the appellees. The chancellor had before him a claim made by one of the appellees that she thought her property was damaged $5,000.  The appellees did not introduce more specific evidence of damage because they undoubtedly wanted the house removed. They were in the position of people who had bought a house in a restricted subdivision where there was plenty of light, air and view, and where all the other houses conformed to the restrictions.  A much larger house, [*153] which to their minds was out of keeping with the other houses, was built adjoining them, cut off their view, and apparently dwarfed their house.  They wanted what they had bought and what they were entitled to, and they were not concerned, in [**530] the first instance, with the financial loss occasioned them.  Mrs. Pantaleo expressed this by saying, "* * * We were completely satisfied and now I am completely unsatisfied," [***9] and later, "I am interested in having the house moved back; the money is only a slight remuneration for what has been done.  The house would still dissatisfy a person."

   The appellant also says that the appellees were themselves guilty of a violation of one of the covenants, and, therefore, the bill should be dismissed. It appears from the evidence that the appellees did build a porch on the side of their house, which extends closer than five feet to the line of the appellant's lot.  It seems to be doubtful, however, whether this is a violation of the restrictions, which refers to a side street line.  The restriction as to proximity to other lots seems to be two feet. The testimony shows that if the porch is a violation, it only violated the two feet rule by one inch which is hardly a substantial violation, and is not comparable with that of the appellant.  We do not think such action by the appellees, even if it is a violation, is sufficient for us to hold that they do not come into court with clean hands.

   The appellant also claimed that the appellees were guilty of laches in not having acted earlier, before the appellant had proceeded so far with his house, that it would be extremely[***10] expensive for him to tear it down.  They cite in this connection the leading New Jersey case of Smith v. Spencer, 81 N. J. Eq. 389, 87 A. 158. That case is not concerned with money damages, but only with the tearing down of the offending building.  The appellees state that they were unable to determine that the house was going to be built in such a way as to cut off their light, air and view until the studdings went up, and thereafter they acted with reasonable promptitude in seeing the builder, the architect, and the owner without [*154] results, and finally went to court.  However this may be, the appellant is not injured by their delay, because the chancellor followed the Smith-Spencer case, supra, and did not compel him to remove his house.  There is no reason to suppose that he would have moved it if earlier notified, because he apparently was determined to disregard everything but the completion of his house, and went ahead with its construction in an even more rapid manner, according to the testimony, after the suit was filed than he had before.  The appellees did not have to seek the aid of a court of equity.  They had a right to bring suit for damages against[***11] the appellant in a court of law, and this is precisely all they got.  One cannot build a house in violation of restrictive covenants enforcible by his neighbor, and when his neighbor sues him for damages, say that since that neighbor did not take steps to stop him from building the house, he cannot recover his losses occasioned thereby.  In such case, the statute of limitations is the bar to the right to sue unless there is some agreement, or some action which denotes acquiescence and amounts to estoppel.  There is no such agreement in this case nor does the short delay of the appellees in bringing their suit estop them from maintaining it.  On the contrary, from the very inception of the building, they were apparently waiting to see whether anything would be constructed that would interfere with the proper use of their own home.  They stated that a porch, which they first thought was going to be constructed over the line, would not have bothered them, and they would not have objected to it.  When they found the truth, they may have been too late to stop the building, but they were certainly not too late to collect for damage done to their property.  Under the circumstances the chancellor, [***12] as already stated, refused the specific relief, but retained his jurisdiction until he should be in the position to determine all the rights and equities of the parties in order to grant complete relief between them.  This seems to be the established rule fully justified by [*155] the decisions.  Smith v. Shiebeck, 180 Md. 412, 24 A. 2d 795, at page 800.

   The chancellor could have heard further testimony to establish damages, but he followed what has frequently been held the better rule, and submitted issues to the law court so that the parties might have the opportunity of having a jury pass upon the questions between them.  The power and authority to award issues of fact or law to be sent to courts of law for trial is inherent in courts of equity and is discretionary with the chancellor. Barth v. Rosenfeld, 36 Md. 604, at page 613. Chancellor Hanson considered it in the early case of Hilleary v. Crow, 1 Har. & J. 542, and said, "* * * inasmuch as the trial by jury is justly considered as far superior to a trial by any one person whatever on written depositions, it has always [**531] appeared proper, and has [always] been the practice, to direct issues in important[***13] questions of fact." See also Baltimore & O. R. Co. v. Silbereisen, 121 Md. 407, pages 417-419, 88 A. 252, 89 A. 102; Miller v. Pyrites Company, 71 F. 2d 804, at page 808, and cases there cited.  The appellant relies strongly on the case of Chase v. Winans, 59 Md. 475. In that case the question was the construction of the will of Jeremiah Townley Chase, a Chief Judge of this Court.  After answers were filed, but before any testimony was taken, the plaintiffs in that case asked that issues be framed and sent to a court of law to be tried by a jury.  Judge Alvey, speaking for this Court, said that was not a matter of right in any stage of the proceeding, and should only be allowed where the proof before the judge creates doubt or where from a mass of circumstances, it may be difficult to draw a proper conclusion, and he further added that it was to be resorted to simply as a means of informing the conscience of the court, and is not binding upon it. All that case decides is that the chancery court does not have to send up the issues and that its action in not doing so cannot be considered an abuse of discretion, inasmuch as it has full power to decide all such questions. [***14]That was made even more clear by a later case which quoted the Chase v. [*156] Winans case as authority.  Baker v. Safe Deposit & Trust Company, 93 Md. 368, at page 381, 48 A. 920, 49 A. 623.

   No objection seems to have been made to the issues in this case, but we may say in passing that they seem to be singularly adapted to produce a fair trial and to be free of prejudice.  The first issue requires the jury to find whether or not actual damages were sustained, and the second issue requires them to fix such damages, if they find any.  The case was not tried before the chancellor sitting as judge in the law court, but was removed to an adjacent jurisdiction, and tried there before two judges and a jury.  The appellant claims that improper evidence was allowed in that case as to values, but he took no appeal from that trial as he was allowed to do by the Code of Public General Laws, 1939, Article 5, Section 5.  These provisions were discussed in the case of Waters v. Waters, 26 Md. 53, and it is obvious from reading that case that it was intended in a review over any such trials that the same procedings should be taken as in the review of any other trial at law.  Nothing[***15] of the sort was done in this case, but the appellant now attempts to have the chancellor review some of the testimony taken at the trial, and in effect act as an appellate court, reviewing the action of the Circuit Court for Prince George's County.  This, of course, he cannot do, although he may order a new trial if he is dissatisfied with the verdict.  Alexander's Chancery Practice, 175.

   The record from the law court is before him in determining whether or not he will adopt the verdict of the jury.  As to that, however, the decision seems to be uniform that he should adopt the verdict, unless there are grave reasons to the contrary.  Thus: "Whatever doubt might exist in the mind of this court, as to the sufficiency of proof to support the claim of the complainant, we think the verdict of the jury ought to have weight enough to remove those doubts. Although a verdict under such circumstances is not conclusive upon the court, yet in all doubtful cases it is entitled to great consideration, and should be sustained, unless against the absolute [*157] convictions of the court to the contrary." Hoffman v. Smith, 1 Md. 475, at page 489. "Such findings are at least entitled[***16] to great weight and ought to prevail whenever the Court of equity is not clearly convinced they are erroneous.  Mere doubts of their correctness should not prevail against them." Goodman v. Wineland, 61 Md. 449, at page 454.

   The appellant had his day in court, submitted his case to a jury and did not appeal from the rulings made in that trial.  Grave and weighty reasons must now be shown by him to justify the chancellor in refusing to adopt the jury's findings.

   We have examined the testimony in the record which purports to have been given at the trial of the issues in Prince George's County, and we are unable to say that there is nothing in it of probative value to support the contention of the appellees.  Since that is the case, we are unable to say that the appellant did not have his case fairly presented before the jury.  The jury determined, on conflicting evidence, that the appellees were damaged to the extent of $1,500. The trial judges heard and refused a motion for a new trial. It does not appear, under the circumstances, that the chancellor abused his discretion in [**532]adopting the verdict of the jury as to damages.

   Since we find no error and no abuse of[***17] discretion by the chancellor, the decree will be affirmed.

   Decree affirmed, with costs. 

HARRY IVREY v. HARRY E. KARR, Assignee 
No. 52, October Term, 1943
 
Court of Appeals of Maryland
 
182 Md. 463; 34 A.2d 847; 1943 Md. LEXIS 222

 December  15, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, Jr., J.

DISPOSITION: Order and decree affirmed, with costs.

CORE TERMS:  purchaser, mortgage, first mortgage, rents, bid, assignee, advertisement, mortgagee, ratification, holder, apartment, certificate, auctioneer, decree, apartment house, coercion, conducting, assigned, rental, interest rate, misrepresentation, indebtedness, receivership, demandable, appointed, disclose, foreclosure sale, second mortgage, terms of sale, date of sale

COUNSEL: Benjamin Michaelson and Emanuel Klawans for the appellant.

   William J. McWilliams, with whom were McWilliams, Duckett & Haley and Harry E. Karr on the brief, for the appellee.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, Adams, and Bailey, JJ. Bailey, J., delivered the opinion of the Court.

OPINIONBY: BAILEY

OPINION: [*465] [**848] This is an appeal by Harry Ivrey, purchaser, from an order and decree of the Circuit[***5] Court for Anne Arundel County, in equity, overruling exceptions filed by the purchaser to the ratification of a sale made by Harry E. Karr, assignee for the purpose of foreclosure, of the Cooper Apartments in the City of Annapolis, and ratifying the said sale.

   On October 15, 1928, the Cooper Apartment Corporation executed two mortgages to Mortgage Guarantee Company, the first to secure a loan of $90,000 to be repaid five years after date with interest at the rate of 6 per centum, payable quarterly, and the second to secure a loan of $25,000, to be repaid in certain installments set forth in said mortgage and the balance in five years, with interest at the rate of 6 per centum, payable quarterly.  Both mortgages were liens on the real estate [*466] owned by the Cooper Apartment Corporation, consisting of two lots at the southwest corner of Maryland Avenue and Hanover Street in Annapolis, which were improved by a four-story apartment house, containing twenty-seven apartments and known as the Cooper Apartments. Both mortgages contained the usual power of sale and the following special provision: "And upon any default in any of the covenants of this mortgage, the mortgagee shall[***6] be entitled, without notice to the mortgagor, to the immediate appointment of a receiver of said property, without regard to the adequacy or inadequacy of the property as security for the mortgage debt; and upon any such default, whether or not a receiver be appointed, the [**849] rents and profits of said property are hereby assigned to the mortgagee as additional security."

   By a series of assignments both mortgages became vested in the Equitable Trust Company, and on November 23, 1942, the second mortgage was assigned by the Equitable Trust Company to the Title Mortgage and Management Company.  On November 25, 1942, the latter company assigned the same to Harry E. Karr, attorney, for the purposes of foreclosure.

   On November 27, 1942, foreclosure proceedings on the second mortgage were instituted by Karr, the assignee. The property was advertised for sale at public auction at the court house door in Annapolis on Tuesday, February 2, 1943, at 11 o'clock A. M.  The advertisement, after describing the property by metes and bounds, contained the following provisions:

   "Subject to a first mortgage from The Cooper Apartments Corporation to the Mortgage Guarantee Company dated October[***7] 15, 1928, and recorded among the Land Records of Anne Arundel County in Liber F. S. R. 40, Folio 51, which by mesne assignments (the last dated December 20, 1940, and recorded among the Land Records aforesaid in Liber J. H. H. 22, Folio 175, now vests in the Equitable Trust Company), the principal indebtedness thereunder now amounts to $90,000.00, together [*467] with interest thereon at 4 1/2% per annum from October 15, 1942.

   "The property is improved by a four (4) story and basement building, containing twenty-seven (27) apartments overlooking the United States Naval Academy.

   "The building is the largest and most modern apartment house in the City of Annapolis.

   "Terms of Sale: A deposit of One Thousand Dollars ($1,000.00) will be required of the purchaser at the time and place of sale; the balance of the purchase money, together with interest thereon at the rate of six per cent. per annum, from the date of sale to be paid in cash upon the final ratification of the sale by the Circuit Court for Anne Arundel County; State, County and City taxes, metropolitan sewerage commission liens, water rents, insurance and all other public charges and assessments of every kind and character, [***8] apartment rents and outstanding operating accounts for the operation of the apartment house to be adjusted to the date of sale."

   The sale was conducted by Sam W. Pattison & Co., auctioneers, acting through one Hartje.  There were present at the sale, among others, Karr, the assignee, McWilliams, his attorney, the following representatives of the Equitable Trust Company, holder of the first mortgage: Tinsley, its vice-president and trust officer, and Boyd, its attorney, and Englar, who represented certificate holders under the first mortgage.

   The amount due on the second mortgage was $12,830, with interest from October 15, 1942, according to the statement of mortgage claim filed in the proceedings simultaneously with the assignee's bond on February 1, 1943.  The only bid received at the sale was that of Ivrey in the amount of $5,000. Immediately after the sale the auctioneer signed the usual certificate stating that he had sold the property to Ivrey for the sum of $5,000, subject to the mortgage mentioned in the advertisement, Ivrey being at that figure the highest bidder therefor, and that the sale was fairly made.  At the same time Ivrey signed the following certificate and[***9] agreement on a printed copy of the advertisement of sale:

   [*468] "I hereby certify that I have this 2nd day of February, 1943, purchased the within described property from Harry E. Karr, Assignee, at and for the sum of Five Thousand Dollars (subject to mortgage aforesaid) ($5,000.00) and I hereby agree to comply with the terms of said sale as set forth on the reverse side hereof.

   "Harry Ivrey (Seal)"

   The assignee filed his report of sale on February 4, 1943, and on the same day the clerk passed an order nisi thereon, providing for the ratification of the sale unless cause to the contrary was shown on or before March 8, 1943.  On March 5, 1943, Ivrey, the purchaser, excepted to the ratification of the sale. Thereafter the assignee filed his answer to the exceptions, testimony was taken in open court and the chancellor passed an order and decree overruling the exceptions and ratifying the sale.  It is from this order and decree that the present appeal is taken.

   The purchaser excepted to the ratification of the sale for the following reasons:

   1. That before the sale the attorney conducting the sale represented to him that the rents of the twenty-seven apartments ranged[***10] from $45 to $80 per month and that it was in reliance upon this representation [**850] that he submitted his bid, whereas in fact the said rentals ranged from $30 to $55 per month, which fact was not known to him until after he had become the purchaser.

   2. That before his bid was accepted he notified the attorney conducting the sale that he withdrew his bid, and that he proceeded with the purchase by reason of the coercion of said attorney in advising him that his bid could not be withdrawn even before acceptance and that he would be held responsible.

   3. That the advertisement stated that the interest rate on the first mortgage was 4 1/2 per cent. and that he did not know that the interest rate thereon was 6 per cent. until after he had become the purchaser.

   4. That the advertisement stated that the property was "the most modern apartment house in the City of [*469] Annapolis," whereas in fact there are no gas connections or installations, no electric bells and no individual mail boxes; that this was not known to him at the time he placed his bid, and that he would not have made his bid had be known this fact.

   5. That at the time of the sale, the entire first mortgage[***11] debt was due and in arrears; that under the terms of the first mortgage all rents had been assigned to the first mortgagee; that Karr, the assignee, had been appointed receiver for the collection of said rents under a proceeding instituted in the Circuit Court for Anne Arundel County; that he had no knowledge of any of these matters until after he became the purchaser, and that if any of said matters had been known to him he would have submitted no bid for the property.

   6. That the holder of the first mortgage has demanded that the purchaser personally assume the first mortgage indebtedness and pay immediately the sum of $20,000 on account of same, and has asserted its claim to the rents under the terms of the first mortgage.

   7. That the proceedings are defective because of errors in the description of the property offered for sale.

   The sale in this case was made in pursuance of the power inserted in said mortgage under the authority of Sections 6 to 10, inclusive, of Article 66 of Bagby's Annotated Code of Maryland, now codified as Sections 6, 8 to 11, inclusive, of Article 66 of the Code of 1939.  These sections provide a summary mode for the exercise of the general jurisdiction[***12] of a court of equity.  Cockey v. Cole, 28 Md. 276, 282, 92 Am. Dec. 684; Warehime v. Carroll County Building Association, 44 Md. 512, 517. In sales under these sections the trust commences with the filing of bond by the party making the sale, and when this has been done the proceedings are brought under the cognizance and guidance of the court and are to be conducted and determined in all respects as ordinary sales by a trustee appointed by decree of the court.  Warfield v. Dorsey, 39 Md. 299, 302, 17 Am. Rep. 562; Gaither v. Tolson, 84 Md. 637, 641, 36 A. 449; Patapsco Guano Co. [*470] v. Elder, 53 Md. 463; Beetem v. Garrison, 129 Md. 664, 99 A. 897; Miller's Equity Procedure, Sec. 456.

   In Stewart v. Devries, 81 Md. 525, 32 A. 285, this court has stated that "it was well settled in this State that a trustee appointed by a court of equity is the agent of the court, and hence, if the question be raised in due time, the court will see that no undue advantage is taken of the purchaser, and he will not be compelled to comply with the terms of a sale if it would be inequitable for him to do so, especially if there has been any misrepresentation, intentional[***13] or otherwise, by the trustee.  That rule is necessary for the purposes of justice, as well as to encourage bidding at trustees' sales. But, when a purchase is made by one who is cognizant of all the essential facts necessary to enable him to understand what the trustee is selling, the court should be equally zealous in protecting the rights of those interested in the proceeds of the sale of the property, and in not permitting its agent, the trustee, to be trifled with."

   And it was said in Kauffman v. Walker, 9 Md. 229, 240: "Judicial sales will not be set aside for causes that the parties in interest might, with a reasonable degree of diligence, have obviated.  Every intendment will be made to support them."

   Let us now consider the exceptions filed by the purchaser, in the light of the aforegoing general principles of law and in connection with the evidence produced at the hearing.

   The first exception charges misrepresentation by the attorney conducting the sale as to the amount of rental received from the property.  Both Karr, the assignee, and McWilliams, his attorney, denied making any statements concerning the [**851] rents. Ivrey testified that he heard one Thomas[***14] make the statement that he thought the rents were from $45 to $85 per month for each of the twenty-seven apartments, but when Thomas was called as a witness by the appellant he testified that he made the statement "I guess the rentals would average $55.00 per month." Lee, the agent who actually collected the [*471] rents, testified that the monthly rentals amounted to $1,491, so that Thomas' estimation was actually $6 less than the correct amount.  We find no evidence in the record to support the contention that there was any misrepresentation as to the amount of the rental by any of the parties conducting the sale.  And the purchaser could not have been misled by the statement of Thomas.

   The second exception charges that he attempted to withdraw his bid and that thereafter he proceeded with the purchase because of the coercion of the attorney conducting the sale.  The evidence discloses that after Ivrey had made his bid of $5,000, some question arose as to certain garages across an alley from the apartment building.  He was informed that the garages across the alley did not belong to the apartment building and were not a part of the sale.  He then requested that the sale[***15] be held up until he had an opportunity to inspect the property.  His request was refused and the auctioneer continued to cry the property.  It was at this point that Ivrey made some statement about withdrawing his bid, and he was told by the attorney, McWilliams, that he had made a bona fide bid of $5,000, that unless a larger bid were received the property would be knocked down to him and that he would be held responsible. The only discussion at this time concerned the garages, and the evidence discloses that the only reference to the withdrawal of the bid came when the request to hold up the sale for an inspection of the property was refused. Thereafter Ivrey acknowledged the bid to the auctioneer, signed the certificate and agreement which we have previously referred to, and gave the assignee his check for $1,000 in compliance with the terms of sale. We find no evidence of coercion here.

   There can be no doubt of the legal right of a bidder to withdraw his bid at any time before the hammer falls.  It is stated in Williston on Contracts, Rev. Ed., Vol. 1, Sec. 29: "Since the bargain is incomplete until the hammer falls, a bidder may therefore retract his bid until that time." [***16] And in 7 C. J. S., Auctions and Auctioneers, [*472] Sec. 7, page 1254, there is the following statement of the rule: "Until the hammer falls and a bid is accepted, a locus penitenntiae remains, and the bidder may withdraw his bid," citing Conway Savings Bank v. Cinick, 287 Mass. 448, 192 N. E. 81. But in the present case we find as a matter of fact that, instead of withdrawing his bid, Ivrey, the purchaser, reaffirmed and acknowledged it freely and without coercion. For these reasons the second exception is without merit.

   It is unnecessary to discuss the third exception further than to say that from the undisputed evidence in the case the error in the advertisement of sale stating that the interest on the first mortgage was at the rate of 4 1/2 per cent. was corrected, when the advertisement was read by the auctioneer at the commencement of the sale and that Ivrey knew at the time he placed his bid on the property that the interest rate on the first mortgage was 6 per cent.

   The fourth exception alleges deception and misrepresentation by the assignee in describing the property in the advertisement as "the most modern apartment house in the City of Annapolis." In[***17] support of this contention it is shown in the evidence that the building contains no connections for gas stoves and that there are no electric bells and no mail boxes at the entrances to the several apartments, but the evidence does disclose that all the apartments are equipped with electric ranges and that there are individual mail boxes in the lobby.  This exception relates to trivial matters, which could have been discovered by the purchaser or anyone interested in the property by a mere casual inspection of the premises.  The purchaser had lived in Annapolis thirty-two years, was the owner of three apartment houses, as well as other real estate in Annapolis, and had been familiar with the Cooper Apartments ever since they were built.  There is nothing in the evidence to show that the statement contained in the advertisement was false or misleading, and the purchaser knew, or should have known, the physical condition of the property which he was buying.

   [*473] This brings us to the fifth and most serious exception urged against the ratification of the sale, namely, that there was no disclosure by the assignee that the first mortgage was due and demandable, that the rents had [***18]been assigned to the first mortgagee [**852] and that the assignee had been appointed receiver to manage the property and collect the rents.

   In Wicks v. Wescott, 59 Md. 270, at page 277, this court has said: "As a general rule, we do not think it is the duty of the assignee or trustee, in selling property, upon which prior incumbrances exist, to ferret out the exact state of such liens, and ascertain how much, if any, may be due upon them.  The rule of caveat emptor excludes such rigid exaction of a trustee.  * * * This may not have been his duty; but if he was not bound to inquire or make any statement respecting the amount of arrears, the trustee was bound, if he undertook to make any statement respecting it, to be sure that the statement he did make was, at least, approximately accurate, and not in anywise misleading."

   The advertisement discloses the date, the place of record, the name of the holder, and the amount of the principal indebtedness and interest of the first mortgage. It states that taxes, insurance, other public charges, rents and operating accounts are to be adjusted to the date of sale.

   It is a well-settled principle of law that the recording of a[***19] conveyance, whether deed or mortgage, in compliance with the provisions of Article 21 of the Code of 1939, operates as constructive notice upon all subsequent purchasers of any estate, legal or equitable, in the same property. Williams v. Banks, 11 Md. 198, 250; Cooke's Lessee v. Kell, 13 Md. 469. Ivrey, as purchaser, is thus charged with knowledge of the following facts, which an examination of the first mortgage on the Land Records of Anne Arundel County would have disclosed: that it was due and demandable and that it contained a provision for the assignment of rents upon default.  In addition there is testimony to the effect that the purchaser [*474] was told by Karr at the time of the sale that the first mortgage was due.  Karr also announced at the time of the sale that he was holding the personal property contained in the apartment house as receiver and that he would ask authorization of the court in the receivership case to sell the equitable title to all the personal property for $100, subject to the lien of the first mortgage. Nothing seems to have been announced about the collection of rents by the recevier.  However, we cannot see how the purchaser was prejudiced[***20] by the pendency of the receivership case.  The receiver was appointed at the instance of the second mortgagee, and upon the final ratification of the sale of the property to the purchaser in this case and the compliance by the purchaser with the terms of sale, the interest of the Title Mortgage and Management Company, second mortgagee, in the property and the rents derived therefrom would cease.  Ivrey, the purchaser, would then become entitled to the rents and there would be no necessity for the continuance of the receivership, unless demand for the rents was made by the first mortgagee, under the terms of its mortgage. And this demand could be made by it, irrespective of the pendency of the receivership case instituted at the instance of the second mortgagee. There is no evidence, however, of any demand for the rents on behalf of the holder of the first mortgage. We have concluded from all the evidence in the case that the disclosure, in the advertisement and at the sale, with respect to the status of the first mortgage and the rents, was fair, accurate and not in anywise misleading.

   Much that we have said with respect to the fifth exception applies with equal force to the sixth. [***21] Immediately after the sale Ivrey approached the representatives of the Equitable Trust Company, the first mortgagee, who attended the sale, and asked for an extension of the first mortgage and a reduction of the interest rate, upon his making repairs to the property, paying an agreed amount on the principal, with the balance to be amortized in some manner to be mutually agreed upon.  [*475] He was informed that if he would submit his proposition in writing it would be considered.  Thereafter he met Boyd and Tinsley at the latter's office in Baltimore and the matter was discussed in detail.  At that time his offer was to pay interest and taxes and make repairs to the property, and, if he was able, to pay off $2,000 in six months.  He was advised that no such proposition could be presented to the certificate holders under the first mortgage with the hope of receiving a favorable reply.  It was in the further discussion at this time that it was suggested that if $20,000 could be paid on the principal, the certificate holders might be satisfied to extend the maturity of the mortgage and reduce the interest rate. There is no evidence in the record to support the purchaser's contention[***22] that the first mortgagee has demanded that he personally assume the first mortgage indebtedness or that he pay immediately the sum of $20,000 on the same.  The purchaser knew [**853] that he was buying the property subject to a mortgage for $90,000 then due, and all the evidence discloses is an attempt on his part to make an advantageous bargain with the holders thereof for an extension of the mortgage. And even if the first mortgage holder had demanded payment of its lien in full, it would have been within its rights under the terms of its mortgage, but this fact could not be urged by the purchaser as a reason for refusing to ratify the sale in this case, as his bid was made with full knowledge of the rights of the first mortgagee.

   The seventh and final exception is based upon errors in the description of the property offered for sale.  It is admitted that there were two minor errors in the detailed description of the two lots.  These appeared in the advertisement of sale and in the assignee's report of sale.  However, the original mortgage, which contained a correct description of the properties, was filed in the case and the assignee, in his report of sale, stated that he [***23]offered for sale at public auction the property described in said mortgage. The purchaser does not claim that he was misled in any way by the errors in [*476] the description.  He has bought exactly what he thought he was buying.  But he contends that the errors make both the proceedings and his title defective.  We cannot agree with this contention.  The general rule is that any description that correctly informs the public of the property to be sold is sufficient, and a notice which certainly identifies the property to be sold is not vitiated by deficiencies or even inaccuracies in the description where these are not of a character to mislead anyone.  35 C. J., Judicial Sales, Sec. 31, page 22.

   In the case of Preske v. Carroll, 178 Md. 543, 547, 16 A. 2d 291, 293, it is stated: "It is now a familiar principle that the description of property in a notice of sale under foreclosure proceedings should be sufficient to enable anyone, by the exercise of ordinary intelligence, to locate the property and to obtain more detailed information concerning it, if desired.  Welch v. Byerly, 150 Md. 107, 112, 132 A. 616, 618. * * * It has also been held unnecessary in foreclosure[***24] proceedings to mention in the notice of sale the metes and bounds of the land.  Stevens v. Bond, 44 Md. 506."

   Applying the above principles to the instant case we are forced to the conclusion that the admitted errors in the detailed description of the property are not of such a character as to furnish any basis for vacating the sale.

   For the reasons assigned, the order and decree, overruling the exceptions of the purchaser and ratifying the sale, must be affirmed.

   Order and decree affirmed, with costs. 

COUNTY COMMISSIONERS OF ANNE ARUNDEL COUNTY v. JAMES MATTHEWENGLISH 
No. 56, October Term, 1943
 
Court of Appeals of Maryland
 
182 Md. 514; 35 A.2d 135; 1943 Md. LEXIS 228; 150 A.L.R. 842

 December  15, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  trailer, classification, license, place of habitation, habitation, Fourteenth Amendment, process of law, taxation, occupation, personal property, regulation, equal protection, ownership, occupy, police power, property tax, license fee, uniformity, sub-title, forbidden, classified, whisky, taxed, license tax, whole value, occupying, occupant, annual, taxing, This Act

COUNSEL: Emanuel Klawans, with whom was Benjamin Michaelson on the brief, for the appellants.

   M. William Adelson, with whom was Michael [***3]  Paul Smith on the brief, amicus curiae on behalf of the County Commissioners of Baltimore County.

   Philip H. Dorsey for the County Commissioners of St. Mary's County.

   Albert J. Goodman and Edward L. Ward for the appellee.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, Adams, and Bailey, JJ. Collins, J., delivered the opinion of the Court.

OPINIONBY: COLLINS

OPINION: [*516] [**137] The appellee, James Matthew English, at the time of the institution of the proceedings in this case, was the owner of a trailer worth about $600, consisting of living and sleeping quarters and a kitchenette, from which the wheels had been removed and which was resting on wooden blocks at Heintzeman's Trailer Grove in Anne Arundel County, Maryland.  He, together with his family had been occupying this trailer house as a residence, place of abode and habitation continuously during the whole of the year 1942, and to date in 1943.  This trailer house is not being used as a place of business or for any occupation, trade or calling, but it is exclusively a home for the appellee and his family.  He pays a weekly rental to the landowner of $3 a week and pays for all electric current used[***4] in this trailer house.  He also paid the license fee to the Commissioner of Motor Vehicles for the years 1942 and 1943, as provided in the 1939 Code, Article 56, Section 157.  This trailer was duly assessed in the amount of $100 by the County Commissioners of Anne Arundel County for State and County property taxes for the year 1943, and under this assessment, as personal property, taxes were paid to the Treasurer of Anne Arundel County in the amount of $2.46.  The appellee has been a resident of Anne Arundel County continuously since the year 1941, [*517] and has been continuously employed since that time in the Bethlehem-Fairfield Shipbuilding Company plant at Fairfield in said county.  Some trailers at that camp were worth around $2,500 and all have sleeping quarters and cooking quarters, and the majority also have living quarters and ice boxes.  It is stipulated and agreed that the Heintzeman's Trailer Camp, where this trailer is located, has been fully examined by the Health Commission of Anne Arundel County and that it complies with the health regulations now enforced, as does also the appellee's trailer.

   The General Assembly of Maryland, at the 1943 session, passed an[***5] Act, Chapter 983, applicable only to Anne Arundel County, now Article 2, Sections 486A, 486B, 486C, 486D and 486E of the Code of Public Local Laws of Maryland, 1930 Edition, which was duly signed, the essential parts of which, for the purpose of this case it is necessary to quote, being as follows:

   "486A. On and after June 15, 1943, it shall be unlawful for any person, firm or corporation to maintain, reside in or operate in Anne Arundel County any trailer used or to be used in the habitation or living quarters of any person or persons, without having secured a license for the maintenance of each such trailer from the Clerk of the Circuit Court for Anne Arundel County.  The annual license fee for each such trailer shall be Thirty ($30.00) Dollars per year, accounting from June 1, 1943, and June 1st in each year thereafter.  * * *.

   "All sums received by the Clerk of the Circuit Court for Anne Arundel County for issuance of trailer licenses shall be paid over monthly to the County Commissioners of Anne Arundel County and expended by it as a part of the general funds of Anne Arundel County.

   "486B. The tenant or lessee of a trailer shall be the person charged with the primary responsibility[***6] of securing a license for the use of said trailer in accordance with Section 486A.  If the owner, operator, tenant, or lessee of a trailer fails to secure a license, the license fee shall become a lien on such trailer. The lien on such [*518] trailer may be enforced by sale at public auction by the County Commissioners of Anne Arundel County, after notice by advertisement for two successive weeks in one or more newspapers of general circulation published in Anne Arundel County.  In case any trailer remains unlicensed for a period of five days, the owner of the land on which such trailer is located shall immediately notify the Building Inspector.  It shall be the duty of the Building Inspector to enforce the provisions of this sub-title.

   "486C. Any person, firm or corporation operating, maintaining or residing in a trailer in Anne Arundel County without having secured a license, as required by Section 486A shall be guilty of a misdemeanor and, upon conviction thereof by a [**138] court of competent jurisdiction, shall be fined not more than Twenty-five ($25.00) Dollars for each such violation, and each day that such violation shall continue shall be deemed a separate offense. [***7]

   * * *

   "486E. The term 'trailer' as used in this sub-title means any structure of whatsoever kind or nature, utilized or capable of being utilized as the habitation or living quarters of any person or persons, which said structure is not in any manner whatsoever connected with the land on which it stands, except that connections for water, sewage and other similar facilities shall not be deemed a connection with the land within the definition herein set forth.  The provisions of this sub-title shall be liberally construed in favor of the County Commissioners of Anne Arundel County, and nothing herein contained in any manner shall be held to require a restriction of the licensing provisions of this sub-title only to automobile trailers or similar trailers, but this subtitle shall apply to all structures within the definition herein set forth.

   "Sec. 2. And be it further enacted, That if any provision, clause, sentence, phrase, or part of this Act, or [*519] the application thereof to any person, firm or corporation or circumstances, is held invalid, the remainder of this sub-title and the application of such provisions to other persons, firms and corporations and circumstances[***8] shall not be affected thereby."

   The appellee filed a bill of complaint in the Circuit Court for Anne Arundel County on June 15, 1943, alleging in substance the facts above stated and further that said Act of 1943, Chapter 983, supra, is illegal, arbitrary, discriminatory and unconstitutional and asked in said bill that said Act be declared unconstitutional, illegal and void.  After answer filed by the County Commissioners of Anne Arundel County, testimony was taken in open court.  On the 6th day of August, 1943, that court passed a decree declaring that Chapter 983 of the Acts of 1943 was unconstitutional, null and void and ordered the defendants to pay the costs.  An appeal is taken to this court from that decree. 

   In approaching this question, this court is mindful that the presumption is in favor of the validity of the law and it assumes that the Legislature intended a lawful enactment.  A reasonable doubt as to its constitutionality is enough to sustain the Act.  We cannot be concerned with the question of policy or the wisdom of the statute, as such questions of usefulness of the law, policy and expediency are for the Legislature.  Baltimore v. State, 15 Md. 376, 453, [***9]74 Am. Dec. 572; Harrison v. State, 22 Md. 468, 491, 85 Am. Dec. 658; Anderson v. Baker, 23 Md. 531, 628; Davis v. Helbig, 27 Md. 452, 462, 92 Am. Dec. 646; Fell v. State, 42 Md. 71, 89, 20 Am. Rep. 83; Shaffer v. Union Mining Co., 55 Md. 74, 80; Painter v. Mattfeldt, 119 Md. 466, 472, 87 A. 413; Ruehl v. State, 130 Md. 188, 194, 100 A. 75; Oursler v. Tawes, 178 Md. 471, 487, 13 A. 2d 763. In addition to the general presumption in favor of its validity, the Act specifically states that it shall be liberally construed in favor of the County Commissioners of Anne Arundel County.  We must also recognize that the Legislature has the power of taxation over property [*520] in this State except as restricted by the Federal and State Constitutions.  McLane v. State Tax Commission, 156 Md. 133, 140, 143 A. 656; Oursler v. Tawes, supra, 482.

    The question therefore for our decision is whether this taxing measure is forbidden by the Constitution of the United States and by the Constitution and Bill of Rights of the State of Maryland and more specifically by the Fourteenth Amendment of the Federal Constitution and by Articles 15 and 23 of the Maryland [***10]Declaration of Rights.

   It is apparent that this Act is essentially a revenue-producing measure.  The flat tax of $30 per year has no relation as to the cost to the county to enforce the statute.  By payment of the tax, the licensee receives a license and no other conditions are required.  There is no provision in the Act as to compliance with health regulations. When a person pays his $30 tax, he gets his trailer license, and there are no other conditions to be complied with in order to get that license. This makes it a revenue measure.  It cannot therefore be held constitutional on the grounds that it is enacted under the police power. Judge Marbury said in the recent case of Maryland Theatrical Co. v. Brennan, 180 Md. 377, at pages 381 and 385, 24 A. 2d 911, 914: "In general, it may be said that when it appears from the act itself that revenue is its main objective, and the amount of the tax supports that theory, the enactment is a revenue measure. 'In general, * * * where the fee is imposed [**139] for the purpose of regulation, and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper, [***11]imposed by virtue of the police power; but where it is enacted solely for revenue purposes and its payment gives the right to carry on the business without any further conditions, it is a tax.' 33 Am Jur., Licenses, Paragraph 19, Page 340.  * * * It has been generally held that where an act is passed under the police power, the money collected under it [*521] must be not more than that necessary to carry out its provisions."

   Let us first inquire whether this legislation is forbidden by the Fourteenth Amendment of the Federal Constitution and Article 23 of the Declaration of Rights of Maryland.

   The Fourteenth Amendment of the Federal Constitution, of course, prohibits the denial of equal protection of the laws and the deprival of property without due process of law. Article 23 of the Declaration of Rights of Maryland prohibits the disseizing of a person's freehold, liberty or privileges except by the Law of the Land.

   This court has previously ruled that Article 23 of the Maryland Declaration of Rights and the Fourteenth Amendment to the Federal Constitution and the term, "due process of law," as used in said amendment, are synonymous with the expression, "Law of the Land," [***12] as used in Article 23 of the Maryland Declaration of Rights.  Oursler v. Tawes, supra, 483; Niles, Constitutional Law, page 46.

   As to the alleged arbitrary and discriminatory classification and deprivation of property without due process of law by the Legislature in this Act, courts of last resort in many of the States of the Union have passed upon these matters. Of course, State constitutional provisions relative to raising revenue for the support of the respective State governments are by no means uniform.  Although these decisions are helpful, they are not in accord and, of course, are not controlling in this case.  Oursler v. Tawes, supra, 481. However, this court adopted in that case at page 483 of 178 Md., at page 768 of 13 A. 2d, a construction of what is meant by these two expressions where Judge Mitchell said: "First of all, it may be observed that the Federal Constitution has not undertaken to lay down any hard and fast rule with respect to due process of law, the equal protection of the laws, or as to privileges and immunities; and as tersely summarized in Board of Com'rs, etc., [*522] v. Johnson County, 173 Ind. 76, 89, N. E. 590, 593: '* * * Nor[***13] does the equal protection clause prevent the states from adjusting their systems of taxation in all proper and reasonable ways.  * * * If all persons who are in like circumstances, or affected alike, are treated under the laws the same, there is no deprivation of the equal protection of the law.  * * * Conversely, a law which operates upon some persons or corporations, and not upon others like situated or circumstanced or in the same class, is invalid.  * * * So, classes of persons may be exempt from taxation upon reasonable grounds, or different kinds of property taxed in different ways.  * * * Persons engaged in the same line of business may be classified, and different provisions applied to each class, without depriving any of them of the equal protection of the laws.  * * * Corporations, individuals, wholesale and retail dealers, domestic and foreign corporations, may be separately classified and taxed differently, so long as the constituent classes are treated alike.  * * * Whether a statute is applicable to a large or small class is a legislative, and not a judicial question.  * * * But taxation is not uniform, or equal, when it applies to a portion of a class, and omits a portion. [***14] * * * The classification itself must be based upon natural reasons, upon reasons which naturally inhere in the subject-matter, upon real difference existing between the classes, and so as to produce no distinction between members of the same class'."

   Although the State, for the purpose of raising taxes, has the right to impose upon members of a class tax burdens, it cannot be exerted so as to impose upon members of a selected class burdens which are not shared by others in like circumstances.  As this court said through Judge Offutt in the case of Dasch v. Jackson, 170 Md. 251, at pages 264 and 265, 183 A. 534, 539: "For those 'who make the law' are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, 'for the favorite at court and the countryman at plough.' Locke on Civil [*523] Government, Sec. 142; Cooley, Const. Lim., 810.  'Equality of rights, privileges, and capacities unquestionably should be the aim of the law; and if special privileges [**140] are granted, or special burdens or restrictions imposed in any case, it must be presumed that the legislature designed to depart as little as[***15] possible from this fundamental maxim of government.' Cooley, Const. Lim., 813.  In Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 22 S. Ct. 431, 439, 46 L. Ed. 679, it was said: 'The difficulty is not met by saying that, generally speaking, the state when enacting laws may, in its discretion, make a classification of persons, firms, corporations, and associations, in order to subserve public objects.  For this court has held that classification "must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.  * * * But arbitrary selection can never be justified by calling it classification. The equal protection demanded by the 14th Amendment forbids this.  * * * No duty rests more imperatively upon the courts than the enforcement of those constitutional provisions intended to secure that equality of rights which is the foundation of free government.  * * * It is apparent that the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the 14th Amendment, and that in all cases it must[***16] appear, not only that a classification has been made, but also that it is one based upon some reasonable ground, -- some difference which bears a just and proper relation to the attempted classification, -- and is not a mere arbitrary selection".' So, while the state has the power, for purposes of taxation, or for the legitimate protection or promotion of some substantial public interest to classify the objects upon which the power is exercised, the classification must have some rational basis, and the operation of the law upon persons or property within the class must be uniform and equal, 12 C. J. 1159, 1274, 1128 et seq., 1136; 6 R. C. L. 218, [*524] 369, 373." Although, as pointed out, the counties of this State are faced with a large influx of people necessary for war work in industrial centers and, as a result, are compelled to go to great expense in providing schools and other necessities at public expense, no differentiation should be made between those living in a house on a temporary foundation and those living adjoining in a house on a permanent foundation.  The family that lives in a trailer should not be made to pay a tax greater than his neighbor who lives in[***17] a humble cottage.  No additional expense to the county or State is entailed because it is on blocks rather than on a foundation. It is not just classification to make the person who occupies a small trailer worth $600 pay the same tax as one who owns or occupies much more sumptuous quarters in a trailer costing $2,500.  It is not uniform or equal taxation to make a family who, on account of economic necessity, lives in a shanty boat pay a tax which a more prosperous citizen who occupies a mansion is not compelled to pay.  In such times as these when labor is seriously needed in war plants and housing facilities are not adequate, should people who are willing to live in a trailer be specifically taxed for that reason?  This Act is not a police regulation. This trailer and the site where it is located offends no sanitary regulation. The Act in question is not one for the regulation of the health, comfort, safety or welfare of the community.  This Act deprives the owner of a property right essential to a trailer which is the right to occupy it as a place of habitation. According to the record, the trailer in the case now before us is worth $600, and it is assessed for $100.  It[***18] is also shown that there are about eighty-four trailers in this camp, ranging in value from $300 to $2,500.  It is possible, of course, for the taxing authorities to assess these trailers at their actual value as their contribution to the general cost of the State and County governments.  Being movable, on the other hand, it is apparent that there might be difficulty in the collection of the taxes.  Because some remove [*525] their trailers in order to escape taxation, all occupants of structures not connected with the land should not be so classified. This classification by the Legislature is contrary to the recent interpretation of "due process of law" and "Law of the Land" as adopted by this court and defined recently in the cases of Oursler v. Tawes, supra, and Dasch v. Jackson, supra. We must therefore agree with the chancellor that this tax is arbitrary and does not have proper regard to uniformity and equality and is therefore forbidden by the Fourteenth Amendment of the Federal Constitution and Article 23 of the Maryland Declaration of Rights.  State v. P., W. & B. R. R. Co., 45 Md. 361, 379, 24 Am. Rep. 511; Maryland Jockey Club v. State, 106 Md. 413, [***19] 419, 67 A. 239; State v. Shapiro, 131 Md. 168, 171, 101 [**141] A. 703; Grossfield v. Baughman, 148 Md. 330, 335, 129 A. 370; McLane v. State Tax Commission, supra, 156 Md. 142, 143 A. 656; Grand Lodge of Maryland, Kuights of Pythias v. Baltimore, 157 Md. 542, 549, 146 A. 744; Dasch v. Jackson, supra; Oursler v. Tawes, supra; Tyler v. United States, 281 U.S. 497, 504, 74 L. Ed. 991.

   Article 15 of the Maryland Declaration of Rights, as amended by the Act of 1914, Chapter 390, provides: "* * * that the General Assembly shall, by uniform rules, provide for separate assessment of land and classification and sub-classifications of improvements on land and personal property, as it may deem proper; and all taxes thereafter provided to be levied by the State for the support of the general State Government, and by the counties and by the City of Baltimore for their respective purposes, shall be uniform as to land within the taxing district, and uniform within the class or subclass of improvements on land and personal property which the respecting taxing powers may have directed to be subjected to the tax levy; yet fines, duties or taxes may properly and justly be imposed, [***20] or laid with a political view for the good government and benefit of the community." This court said in reference to this amendment, in the case of Oursler v. Tawes, supra, 178 Md., pages 485 and 486, [*526]13 A. 2d, page 769: "In connection both as to classifications and exemptions it may also be observed that a different construction has been placed by this court upon the concluding paragraph of Article 15, from that placed upon the preceding paragraphs.  The late Judge Alfred Niles in his work on Maryland Constitutional Law, pages 32, 33, makes the following comment: 'The last clause of the 15th article of the Declaration of Rights is considered as enlarging the taxing power of the Legislature.  And taxes laid under this enlargement of power are of a different class from "property taxes" * * *.  The rule of equality is applicable to "property taxes." "Taxes laid with a political view" are not "property taxes" but are such taxes as the Legislature may levy, not upon property, but upon occupations, privileges, contracts and things of that nature, and as to those the rule of equality is not applicable.  * * * Summing up the rule and its exceptions, we may say, in a general[***21] way, that the Courts, in construing this article, have separated the taxation which may be levied upon the inhabitants of Maryland into two kinds: the one, taxes upon the individual according to his property; the other, taxes laid with a political view for the good government and benefit of the community.  As to taxes of the first class, the Legislature is prohibited from taxing the same individual twice in regard to the same piece of property.  * * * It may, however, exempt certain classes of property with a view to the good of the community, provided the classification is reasonable, and the exemption does not produce material inequality.  * * * In regard to the second class * * * there seems to be no limitation laid upon the power of the Legislature by this article, except that such taxes are not to be laid upon property as such'." Judge Niles, at page 34, supra, in reference to special taxes laid with a political view, also said: "These taxes are, of course, subject to the provisions in the State and Federal Constitutions, forbidding the taking of property without due process of law, and the denial of the equal protection of the law."

   [*527] It is claimed that the tax[***22] in question is one laid with a political view and is not a property tax, but such a one at the Legislature may levy upon occupations, privileges, contracts and things of that nature, and therefore there is no limitation laid upon the power of the Legislature by this Article except that this tax be not laid upon property.  It is contended that this is a "use" tax and not a property tax. Whether a particular tax is one on property or on an occupation or privilege cannot be determined by the application of any fixed rule.  "Ordinarily a tax imposed on the carrying on of any business, trade, profession or calling is not a tax on property as distinguished from an occupation tax." Cooley on Taxation, Section 675, pages 3380, 3381.  It was said in the case of Blaustein v. Tax Commission, 176 Md. 423, 426, 4 A. 2d 861, 862: "No author or court seems to have found an exact definition for excise tax.  Ordinarily it is regarded as a tax on business or occupation. So many objects of taxation are called excises or imposts that they may be generally defined as any kind of tax which is not directly on property or the rents or incomes from real estate.  1 Bouv. Law Dict., Rawle's [3d[***23] Rev.], 1109." In discussing the difference between a privilege tax and a tax on property, Judge Sloan said in the case of Maryland [**142] Racing Commission v Jockey Club, 176 Md. 82, at page 88, 4 A. 2d 124, at page 127: "The difference between this tax and that on real and personal property is that the property must pay regardless of the ownership, while the business man can decide whether he will continue in business or not, and thus decide whether there will be a tax or no tax, with the license or business tax, if the decision is to remain or continue in business, payable in advance." In the present case it is contended that the difference between the tax on real and personal property and the tax on the privilege of occupying the trailer as a habitation is that the property must pay regardless of ownership while the person can decide whether he will occupy the trailer as a home and thus decide [*528] whether there will be a tax or no tax with the license or privilege tax if the decision is to occupy the trailer.

   Appellants contend that the payment of this privilege tax or license tax can be avoided by not using his trailer as a place of habitation. However, [***24]a trailer is constructed essentially as a place in which to live. This is axiomatic.  In the instant case the trailer has sleeping quarters, a living room and a kitchenette.  What else could it be used for other than a place of habitation? It is so used when persons travel in it.  It is contended that, if the trailer were placed in storage, the owner would thereby avoid the tax.  To do this would amount practically to confiscation of the property.  Of what value is a trailer in storage?  The practically exclusive use of a trailer is a place of habitation, and in the instant case, the owner who pays the personal property taxes and the motor vehicle tax on the trailer is compelled to pay additional tax for living in it.  By no stretch of the imagination could occupying the trailer as a place of habitation be considered an occupation or a business.  Everyone does not have to go in business, but everyone has to have a home or shelter.  Occupying a home is not a privilege.  It is essentially a necessity.  Here shelter is necessary to life itself.  To meet this necessity, the trailer is constructed as a place of habitation, and it is the principal use to which it can be put.

   If the tax[***25] is one upon a single use to which a certain property can be put, it can be classified as a tax upon the use of the property and not upon the property itself.  For instance, the Supreme Court of the United States, in the case of Bromley v. McCaughn, 280 U.S. 124, 50 S. Ct. 46, 74 L. Ed. 226, ruled that a gift tax was a tax laid upon the exercise of a single one of the powers incident to ownership, namely, the power to give the property owned to another, and therefore was not a direct tax on the property.  It was said in that case at page 138 of 280 U.S., at page 48 of 50 S. Ct., 74 L. Ed. 226: "Even if we assume that a tax levied upon all the uses to which property may be put, or upon the exercise [*529] of a single power indispensable to the enjoyment of all others over it, would be in effect a tax upon property, see Dawson v. Kentucky Distilleries, 255 U.S. 288 (41 S. Ct. 272, 65 L. Ed. 638), and hence a direct tax requiring apportionment, that is not the case before us." However, where the tax is on one of the only uses of which the property is capable, the whole value of that property depends upon the right to that use.  In the present case the owner is the occupier[***26] of the property and the whole value depends upon the right to occupy the trailer as a place of habitation. In the case of Dawson v. Kentucky Distilleries & Warehouse Co., 255 U.S. 288 (41 S. Ct. 272, 65 L. Ed. 638), where the State of Kentucky imposed upon every person engaged in the business of manufacturing whisky or in the business of owning and storing whisky in bonded warehouses in that State, an annual license tax upon all whisky, either withdrawn from bond or transferred in bond from Kentucky to a point outside that State, in holding such tax as one on property and not a "use" tax, Justice Brandeis said at page 294 of 255 U.S., at page 274 of 41 S. Ct., 65 L. Ed. 638: "The tax might be said to be upon the act of removal from the bonded warehouse within the state.  But, as stated by the lower court, 'the thing really taxed is the act of the owner in taking his property out of storage into his own possession (absolute or qualified) for the purpose of making some one of the only uses of which it is capable; i. e., consumption, sale or keeping for future consumption or sale.  * * * The whole value of the whisky depends upon the owner's right to get it from the place where the[***27] law has compelled him to put it, and to tax the right is to tax the value.' To levy a tax by reason of ownership of property is to tax the property.  Compare Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891; Thompson v. McLeod, 112 Miss. 383, 73 So. 193; L. R. A., 1918C., 893; Ann. Cas., 1918A, 674.  It cannot be made an occupation or license tax by calling it so.  See Flint v. [**143] Stone Tracy Co., 220 U.S. 107, 148-150, 31 [*530] S. Ct. 342, 55 L. Ed. 389, 412, 413, Ann. Cas., 1912B, 1312; Zonne v. Minneapolis Syndicate, 220 U.S. 187, 31 S. Ct. 361, 55 L. Ed. 428; United States v. Emery-B.-T. Realty Co., 237 U.S. 28, 35 S. Ct. 499, 59 L. Ed. 825. "We are cited in the well-prepared briefs in this case other Supreme Court cases interpreting taxes levied to collect customs and affirming state courts in upholding taxes laid to prevent persons avoiding state sales taxes and also cases arising under the police power. It is not necessary to discuss these as they are not in point.  The tax in the instant case, being one upon one of the only uses of which the trailer is capable, namely as a place of habitation, is therefore a property tax. This being a[***28] property tax, it is, of course, forbidden by Article 15 of the Declaration of Rights of Maryland as amended, because, being personal property, the tax must be uniform, and where the tax is the same upon a $600 trailer and upon a $2,500 trailer, there is, of course, no uniformity. This court has ruled many times that a tax upon property must survive the test of uniformity and equality and not be arbitrary and unreasonable.  Judge Robinson said in the case of Tyson v. State, 28 Md. 577, at page 587, in reference to Article 15 of the Declaration of Rights: "Arbitrary taxes on property without regard to value, are expressly prohibited, and all measures for the collection and imposition * * * upon property, are required to conform to this general principle of equality." State v. Cumberland & Pennsylvania R. R. Co., 40 Md. 22; State v. P., W. & B. R. R. Co., supra, 45 Md. 377; United States Electric Power & Light Co. v. State, 79 Md. 63, 28 A. 768; Grand Lodge of Maryland, Knights of Pythias v. Baltimore, supra. Other forms of taxation to reach the nomadic type of people who reside in such structures as these have been suggested.  At this time, of course, only the [***29] Act in question is before us.

   It is also contended that in placing the tax upon the person who makes the particular use of the trailer rather than upon the owner, the Legislature has plainly designated [*531] that it is a tax upon the particular use and not upon the ownership. The legislative designation is entitled to much weight, but it is not controlling.  It cannot be made an occupation or license tax by calling it so.  Dawson v. Kentucky Distilleries, supra. The occupant is the owner.  While the occupant is primarily responsible for the payment of the tax, if not paid, it becomes a lien on the trailer, which requires the owner to pay the tax or lose his property, and in the last analysis, the tax is the liability of the owner.  The constitutional validity of a law is to be tested by what may by its authority be done.  Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Ulman v. Baltimore, 72 Md. 587, 596, 20 A. 141, 21 A. 709; Levering v. Park Commissioners, 134 Md. 48, 53, 106 A. 176; Spann v. Gaither, 152 Md. 1, 11, 136 A. 41.

   This Act, imposing a tax forbidden by the Fourteenth Amendment of the Federal Constitution and by Articles 15 and 23 of the Maryland[***30] Declaration of Rights, is unconstitutional, null and void.

   Decree affirmed, with costs. 

JOHN BURLEY v. MAYOR, COUNSELLOR AND ALDERMEN OF THE CITY OFANNAPOLIS 
No. 29, October Term, 1943
 
Court of Appeals of Maryland
 
182 Md. 307; 34 A.2d 603; 1943 Md. LEXIS 204

 November  10, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Order reversed without a remand.  Costs to be paid by the appellee. 

CORE TERMS:  license, nuisance, ordinance, municipal authorities, licensee, billiard, revoked, gambling house, charter, revocation, removal, billiard table, abatement, wharf, writ of mandamus, enumerated, municipal, directing, convicted, gambling, revoke, obstruction to navigation, third class, arbitrarily, pleasure, stable, gaming, build, revocation of a license, police commissioner

COUNSEL: Albert J. Goodman for the appellant.

   Henry J. Tarantino for the appellees.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, Grason, Adams, and Bailey, JJ.  Marbury, J., delivered the opinion of the Court.  Delaplaine and Collins, JJ., dissent.

OPINIONBY: MARBURY

OPINION: [*308] [**603] Appellant, a resident of Annapolis, obtained from the municipal authorities on May 1, 1942, a license to operate two billiard tables for which he paid the required fee of $10.50.  On December 14, 1942, after[***3] seven months and a half of the year for which the license was issued had elapsed, the city authorities passed a resolution revoking his license. The city police then entered his premises and removed the license [**604]issued to him by the city, whereupon he filed a petition for the writ of mandamus to compel its return.  The court below declined to grant the writ. From the order dismissing the petition this appeal is taken.

   The municipal authorities of Annapolis have power under the charter of the city to license billiard tables, and they also have power to prevent and remove nuisances. Code of Public Local Laws of Maryland, 1930 Ed., Article II, Section 24.  In fulfillment of their charter powers they provided for billiard table licenses, and in the ordinance included certain restrictions on the use of [*309] such licenses. The premises were not to be kept open between midnight and 7 A. M.  No minor under the age of nineteen years could be admitted to the premises.  Any windows or glass doors facing on any street or alley must be transparent so that the interior could be plainly seen.  A fine is provided for violation of any of these regulations, and it is further stated[***4] that "upon a second conviction under this section the license granted to said person or persons so offending shall be revoked." Code of the City of Annapolis, Article VI, Section 23.

   The appellant was not convicted either a first or a second time for the violation of any of the named reguations.  He had, however, been fined by a trial magistrate on October 3, 1942, on a plea of guilty of operating a gambling house on the premises.  The police commissioner brought this fact to the attention of the municipal authorities, and, according to the agreed statement of facts in the record, the commissioner further stated that the premises had been raided on three previous occasions of which the dates are not given.  The appellant was not, at these times, the operator or lessee.  In response to the request of the police commissioner, the municipal authorities summarily revoked the appellant's license.

   Whether the license ordinance is a revenue act or a regulatory measure is not important here.  We are not construing the ordinance or its conditions.  We are concerned with the question whether the city authorities could revoke the license for causes not mentioned in the ordinance. The city[***5] could have required, as a condition precedent to granting a license, that the applicant show evidence, in some form, of his good character, or that the proposed place of amusement was not objectionable to those within a reasonable distance of its location.  No conditions precedent were, however, prescribed.  Anyone could obtain the license, whether or not he had been previously convicted of any offense.  It was not necessary to advertise the application, nor was any hearing required to be held upon it.  All the conditions mentioned [*310] by the city in its ordinance were conditions subsequent to the issuance of the license. Gambling on the premises was not one of those included.

   Some jurisdictions have held that where a licensee takes a license subject to the condition that it may be revoked at the pleasure of an authority, then it can be so revoked without any hearing.  Commonwealth v. Kinsley, 133 Mass. 578; Burgess v. Mayor & Aldermen of Brockton, 235 Mass. 95, 126 N. E. 456; People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187, 82 N. E. 187; State ex rel. Nowotny v. Milwaukee, 140 Wis. 38, 121 N. W. 658. It has been held elsewhere that even if the ordinance[***6] stated that the license could be revoked at any time, the licensee was entitled to notice and hearing.  Angelopulos v. Bottorff, 76 Cal. App. 621, 245 P. 447; Carroll v. California Horse Racing Board , 16 Cal. 2d 164, 105 P. 2d 110. We have no such case here.  We have the authority granting the license pointing out specifically in its ordinance certain causes for which a license can be revoked, and then we have a summary revocation for other causes.

   There is a wide distinction between a statute or an ordinance under which a licensee knows that he holds his license at the pleasure of the governing authority, and a statute or an ordinance which contains no such provision.  In the one case, revocation is not arbitrary because it is a part of the condition upon which the license was obtained.  In the other case, it may be extremely arbitrary, and if permitted, leaves a licensee with no security or redress.  In the case before us the licensee had a right to believe from the inclusion of certain conditions of revocation in the ordinance that his license could not be taken away for other reasons.  If the municipal authorities could take his license away at any time for any reason, [***7] it was not necessary for them to specify any causes for revocation in the ordinance. [**605] The fact that they did so shows that they contemplated the exercise of no general power of revocation, and did not intend that such action should be taken except for the [*311] causes enumerated. The licensee is bound by the expressed conditions, and the municipal authorities are bound by those implied.

   In those cases where attempts have been made to revoke under an authority not reserved in the granting statute or ordinance, there seems to be a unanimity of holding that it cannot be done.  The general law on the subject is thus stated in 33 Am. Jur., page 382, "* * * Where a statute or ordinance authorized the revocation of a license for causes enumerated, such license cannot be revoked on any ground other than the causes specified." See also 37 C. J., Licenses 247, paragraph 110; Stone v. Fritts, 169 Ind. 361, 82 N. E. 792; Wheeling, Etc., R. Co. v. Triadelphia, 58 W. Va. 487, 52 S. E. 499; Peterson v. Guernsey, 26 Wyo. 272, 183 P. 645; Spiegler v. Chicago, 216 Ill. 114, 74 N. E. 718; Vanaman v. Adams, 74 N. J. L. 125, 65 A. 204; Lyman v. Malcolm [***8]  Brewing Co., 160 N. Y. 96, 54 N. E. 577; State v. Louisiana State Boxing Commission, 163 La. 418, 112 So. 31; State v. Charlesworth, 141 Or. 290, 16 P. 2d 1116, 17 P. 2d 1104; Walker v. San Gabriel (Cal. App.), 122 P. 2d 634; Royal Highlanders v. Wiseman, 140 Neb. 28, 299 N. W. 459; Commonwealth v. Briggs, Quar. Sess., 34 Pa. Dist. & Co. R., Pa. 97.

   The argument on behalf of the city is that it is acting under its nuisance powers, that a gambling house is a nuisance, and that in taking away the billiard table license of the appellant, it is preventing a nuisance. A sufficient answer to this theory is that the facts do not support it.  The authority given the city by its charter, Code of Public Local Laws, 1930, Article II, Section 24, reads as follows: "The Mayor, Counselor, and Aldermen shall have power to enact all laws and ordinances necessary * * * to prevent and remove nuisances." It is not anywhere shown in the record that the municipal authorities have passed any ordinance, affecting all citizens alike, and providing a method for the prevention and removal of nuisances. In the absence of such showing it may be presumed that there is no such ordinance. [***9] [*312]And nuisances which are to be removed are only those so declared or which are such by common law.  Jewel Tea Company v. Bel Air, 172 Md. 536, 192 A. 417.

   Public nuisances, that is to say, those nuisances which have a common effect and produce a common damage, are usually placed in three classifications: First, those which are nuisances per se or by statute; second, those which prejudice public health or comfort such as slaughterhouses, livery stables, etc.; third, those which in their nature are not nuisances, but may become so by reason of their locality, surroundings, or the manner in which they may be maintained. Dillon on Municipal Corporations, 5th Ed., paragraph 690, Vol. II, pages 1044-1045.  The same eminent authority on page 1046 says: "As to this third class * * * while they may be abated under the power conferred by statute, the proper construction of the power in respect to such things is, that the city has authority to declare by general ordinance what shall constitute a nuisance," and further, "as to the third class, it is for the courts to determine whether a nuisance exists in fact and the city has no power of summary abatement, or removal." [***10] See also Wood on the Law of Nuisances, 3d Ed., page 977; Mayor, Etc., of Baltimore v. Radecke, 49 Md. 217, at page 229, 33 Am. Rep. 239; State v. Mott, 61 Md. 297, 48 Am. Rep. 105. A further discussion of the subject is found in McQuillin on Municipal Corporations, 2nd Ed., Revised, paragraph 959, Vol. III, page 151, and at the end of this paragraph the following statement is found: "Laws providing for the abatement of nuisances are generally so drawn that the usual remedies may be invoked by the appropriate public authority, that is by summary proceedings, or by injunction, or by particular legal steps outlined by charter or statute at the expense of the property causing the nuisance."

   The statute under which the appellant was convicted is contained in Code P. G. L., 1939, Article 27, Sections 288 and 289.  The record does not show the exact charge to which the appellant plead guilty.  His petition for [*313] mandamus says that the charge was that he was operating a gambling house. That is the same crime described in the agreed statement of facts.  A billiard table is expressly excepted by Section 289 from the kinds of tables which are designated as gaming tables. [***11] Such a table may lose its immunity by being used for purposes of gaming. State v. Price, 12 Gill. & J. 260, [**606]37 Am. Dec. 81. Inasmuch as the record does not show that the billiard tables themselves were used, we can proceed only upon the theory that somewhere on the premises for which the billiard table licenses were granted, the appellant, in the words of the statute, "kept a house for the purpose of gambling." One conviction does not make the premises a gambling house and a nuisance per se.  "A nuisance necessarily involves the idea of continuance." Wynkoop v. Hagerstown, 159 Md. 194, at page 202, 150 A. 447, 450, and cases there cited.  Appellant's place of amusement is, therefore, not a nuisance per se, and can only become one by the manner in which it is maintained.

   To act under its nuisance powers in such cases the city of Annapolis must first prescribe by general ordinance what are nuisances, and make provision for their removal. Here we have, however, no ordinance, no general declaration of what is a nuisance, or what becomes a nuisance and when.  We do not even have the city authorities determining that this particular place is a nuisance. We [***12]have them taking away the appellant's license to conduct a lawful business, and leaving him in the possession of the premises where the unlawful gambling was once conducted.  No attempt is made to close the premises for use by the appellant for other purposes.  It is apparent that the city was not acting under any powers of preventing nuisances which it had under its charter.

   In an important case, arising in the City of Milwaukee, the owner of a lot fronting on two rivers in that city attempted to build a wharf. The city by a special ordinance declared this wharf to be an obstruction to navigation and a nuisance. The Supreme Court of the [*314] United States, which finally passed upon the case, denied the right of the city to do this, and in so doing used these words: "It is a doctrine not to be tolerated in this country, that a municipal corporation, without any general laws either of the city or of the State, within which a given structure can be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by any person supposed to be aggrieved, or even by the city itself.  This would place every house, every business, and all the property of[***13] the city, at the uncontrolled will of the temporary local authorities.  Yet this seems to have been the view taken by counsel who defended this case in the Circuit Court; for that single ordinance of the city, declaring the wharf of Yates a nuisance, and ordering its abatement, is the only evidence in the record that it is a nuisance or an obstruction to navigation, or in any manner injurious to the public." Yates v. Milwaukee, 10 Wall. 497, 77 U.S. 497, 505, 19 L. Ed. 984. These words of Mr. Justice Miller have been quoted with approval by this court in at least two cases.  New Windsor v. Stocksdale, 95 Md. 196, at page 215, 52 A. 596, and Frostburg v. Wineland, 98 Md. 239, at page 244, 56 A. 811.

   The same general principle has also been stated here in a case which has to do with the permit for the building of a stable under an ordinance of the city of Cumberland.  The permit was first granted and subsequently cancelled by resolution.  The applicant continued to build notwithstanding the cancellation, and one of the neighboring residents filed a bill to enjoin him.  This court said that the attempt to revoke the permit by resolution was ineffectual, and gave as its reasons[***14] the following: "If the terms of an ordinance can only be changed by a legislative act, so as to operate uniformly upon all persons within its scope, still less can its protection be denied to one person singled out by a mere resolution of the council, which leaves the ordinance in force and unchanged.  The court below well said that the resolution 'proposed to deny him the privileges and rights conferred by the ordinance and the permit by a mere resolution [*315] not modifying the law of the city, but simply segregating him apart from all other citizens of Cumberland, and depriving him arbitrarily of the rights assured under the law of the city to every other property holder; and this, too, without notice or opportunity to be heard.' This cannot be done." Gallagher v. Flury, 99 Md. 181, 186, 57 A. 672, 674.

   Our conclusion must be that the action of the appellee in revoking the appellant's billiard license was arbitrary and unwarranted.  It cannot be upheld under the terms of the license ordinance, nor can it be held that, by such action, the city was abating or preventing a public nuisance. In so holding we are not weakening the police power of the city.  That [**607] [***15] power is the force behind the maxim sic utere tuo ut alienum non laedas.  It is one of the most comprehensive powers, if not the most comprehensive power, outside of the war power which any government may have.  It extends to the protection of the health, morals, safety, and general welfare of the public, and all means which may be necessary in the opinion of the authorities to give such protection.  Yet it is not without its limitations, and one of these is that it cannot be exercised arbitrarily. In this case arbitrary action was taken under the guise of the police power in a manner not authorized by such power.  It cannot be upheld.

   It follows that the appellant was entitled to have his license returned to him and the writ of mandamus should have been issued.  When the case was brought, over four months of the time for which the license was issued still remained.  It has, however, now expired, and therefore no purpose would be served by an order directing its return.  On the authority of Tolman Laundry v. Walker, 171 Md. 7, 187 A. 836, the case will not be remanded.

   Order reversed without a remand.  Costs to be paid by the appellee. 

WILLIAM BOEHM, JR., et ux. v. WILLIAM BOEHM, SR., et ux. 
No. 19, October Term, 1943
 
Court of Appeals of Maryland
 
182 Md. 254; 34 A.2d 447; 1943 Md. LEXIS 199

 November  4, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Clark, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  farm, mortgage, decree, purchase price, one-half, part performance, purchase money, conversation, laches, specific performance, crop, agreement to sell, oral agreement, conveyance, undivided, purchaser, demurrer, daughter, tobacco, timber, prayer, tenants, parol contract, pursuance, vendor, oral contract, adequate remedy, general relief, sale of land, estoppel

COUNSEL: Hyman Ginsberg, with whom were Ginsberg & Ginsberg on the brief, for the appellants.

   Emanuel Klawans and Marvin I. Anderson for the appellee.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, Grason, Melvin, Adams, and Bailey, JJ.  Bailey, J., delivered the opinion of the Court.

OPINIONBY: [***3]

   BAILEY

OPINION: [*256] [**448] William Boehm, Sr., and Agnes Boehm, his wife, were the owners, as tenants by the entitreties, of an undivided one-half interest in a farm in Anne Arundel County, the other undivided one-half interest in which was owned by their son, William Boehm, Jr., and his wife, Josephine Boehm, as tenants by the entireties.  The propproperty was conveyed to them, subject to a mortgage of $3,200, by deed dated October 2, 1920.  The total purchase price was $5,400, and the balance of $2,200 was paid by the father and wife and by the son and wife in equal shares.

   On December 3, 1942, the father and his wife filed an amended bill of complaint in the Circuit Court for Anne Arundel County against their son and his wife, alleging that in 1925 the defendants entered into an oral agreement with the plaintiffs to sell [**449] their interest in said farm for the sum of $1,100 in cash and the assumption by the plaintiffs of the whole of the mortgage thereon; that at that time the plaintiffs paid to the defendants $570 on account of said purchase price; that since then the plaintiffs have paid all taxes on said farm and all interest on said mortgage; and that, [***4] quoting from said bill of complaint:

   "In reliance upon said contract the plaintiffs have given up other employment and have resided upon said farm and have worked and improved the same and have erected thereon entirely at their own expense a dwelling, tobacco barn, double garage, chicken coops, stable, and have purchased about $1,000 of farm machinery of no use to them except in connection with said land, and have raised crops on said farm, and have devoted their entire time and effort to said land and have improved and benefited same in many ways not readily susceptible to being valued in money.  From the time of said agreement to sell to the plaintiffs, the defendants have paid [*257] no portion of the taxes on said land, or interest on said mortgage, and have not expended any money whatsoever account of said land, and have not raised any crops thereon.  About 1933 the defendants purchased a separate farm for themselves, and at that time they requested and received payment from the plaintiffs of the balance of said $1,100 purchase money with interest thereon from the time of said oral agreement of sale to this time of payment in full.

   "That the defendant Josefin Boehm had[***5] full knowledge of the aforesaid agreement to sell the defendants' interest in said farm to the plaintiffs and she acquiesced and consented and agreed thereto and received and accepted the benefits of the purchase money paid by the plaintiff; and both defendants had full knowledge of the plaintiffs' possession of said farm and of the improvements and expenditures being made by the plaintiffs and the work being done by them and of the belief on the part of the plaintiffs in making said improvements and performing said work that the plaintiffs owned said land to the exclusion of any right of the defendants, and the defendants in no manner apprised the plaintiffs of any claim of rights in said land asserted by the defendants.

   "That the defendants never claimed or asserted any rights in said farm from the time of said agreement of said sale by them to the plaintiffs until recently, when the defendants prevented the plaintiffs from selling timber on said farm by telling the buyer that they owned an interest therein; and they now assert rights in said farm. That the plaintiffs desire to refinance said mortgage and for this reason desire a conveyance from the defendants to the plaintiffs[***6] and the defendants refuse to execute such conveyance."

   The prayers of the bill were that the defendants be declared to hold their legal title to said land in trust for the plaintiffs, that the defendants be required to convey all their rights in said land to the plaintiffs or that a trustee be appointed for this purpose, and for further relief.

   [*258] The defendants filed a combined demurrer and answer to the amended bill of complaint.  The grounds for the demurrer are: (1) That the bill does not state facts entitling the plaintiffs to the relief prayed for therein or to any relief in equity against the defendants, (2) that the plaintiffs have a full, complete and adequate remedy at law, (3) that they have been guilty of laches, and (4) that the Statute of Frauds is a complete defense to the bill.  By their answer they denied all the material averments of the bill and alleged that they were still the owners of an undivided one-half interest in said farm. At the same time, the defendants filed a cross-bill against the plaintiffs, praying for an accounting for machinery and equipment on the farm and for the profits from said farm.

   Testimony was taken before the chancellor and[***7] thereafter, on March 3, 1943, his decree was filed overruling the demurrer to the bill of complaint, dismissing the dedendants' cross-bill for an accounting and subjecting the undivided one-half interest of the defendants in the farm to a lien in favor of the plaintiffs for $1,500.  The decree further provided for the sale of the defendants' interest unless the said sum with interest was paid within thirty days, and that the debt and lien might be satisfied and extinguished by a conveyance of the defendants' interest to the plaintiffs within the said period of thirty days.  From this decree the defendants have appealed.

   The following facts are undisputed: All the parties moved to the farm soon after its purchase and continued to live thereon for about two years.  During most of this period the father and son worked in Baltimore, no effort was made to engage in any [**450] extensive farming operations, and there was little, if any, income from the farm. The taxes thereon and the interest on the mortgage were paid by the plaintiffs and defendants in equal shares.  After the expiration of two years, the defendants returned to Baltimore.  The father and mother continued to live[***8] on the farm for a while, but in 1923 the father [*259] went back to Baltimore, worked there and boarded with a daughter. The mother remained on the farm for a further period, but she finally returned to Baltimore and for several years the farm was vacant.  The defendants ceased paying their share of the taxes and interest after they left the farm in 1922, and in October, 1924, they purchased a home on Loretta Avenue in Baltimore.  The father was a carpenter and the son a machinist.  In 1927 and 1928 the father and son drove from Baltimore to the farm on Sundays and holidays and built a tobacco barn, chicken house and garage thereon.  Most, if not all, of the necessary lumber was sawed from trees cut on the farm, but the sawing was paid for by the father, as were the galvanized roofing and other necessary materials.  In 1929 the father moved back to the farm, paid all the expenses in connection with a crop of tobacco and received the proceeds from the sale thereof.  In 1930 the dwelling house was destroyed by fire and the sum of $2,000, collected from the insurance, was paid to the mortgagee, thereby reducing the mortgage to $1,200.  Shortly after the fire the father and son[***9] agreed to work the farm on shares, each to receive one-half, and the son and his wife rented their Loretta Avenue home and moved, with their children, to the farm. The two families lived together in the out-buildings and the father and son proceeded to grow tobacco and other crops and to rebuild the dwelling.  A part of the lumber used in rebuilding was sawed from trees cut on the farm, a part of the proceeds of the tobacco crop and money of the father was used in purchasing materials for the new house and, in addition, $1,200 was raised for this purpose by increasing the mortgage from $1,200 to $2,400.  The new mortgage was executed by all the parties.  The joint operation of the farm was discontinued in 1933, when it was suggested by the mother that the farm was not large enough to support two families and that the son's family should return to Baltimore so that he could resume his work [*260] as a machinist.  The defendants then left the farm, but instead of going to Baltimore, they purchased and moved to another farm near the farm in controversy.  The purchase price of this farm was $1,500, of which $400 was paid in cash and the balance secured by mortgage. The title[***10] to this property, as well as to the dwelling on Loretta Avenue in Baltimore, was taken by the defendants as tenants by the entireties.

   Thereafter the defendants never participated in the operation of, or shared in the profits from, or paid any of the expenses on, or asserted any acts of ownership over, the farm first purchased where the father and mother continued to live, until the summer of 1942, when the plaintiffs sold some timber, and then the two sons of the defendants went on the farm and notified the purchaser of this timber that their parents, the defendants, owned a one-half interest in said farm and would not permit the removal of said timber. Shortly thereafter, on October 14, 1942, this suit was instituted.

   We come now to the facts in dispute.  The father testified that after the defendants had purchased the Loretta Avenue property, the son wanted to get his money out of the jointly owned farm and that the plaintiffs agreed orally to buy the interest of the defendants therein for $1,100, which was the amount that they had contributed to the purchase price. While the conversation was with the son, he testified that the son's wife was present and knew about the agreement. [***11] The father then withdrew $500 from the Calvert Bank, the mother contributed $70 and $570 was given to the son, in the presence of his wife. The father further testified that the balance of $530, with interest from the date of the oral agreement, or a total of $830, was paid to the son in 1933, while all of the parties were living together on the farm, that it was with this money that the son made the cash payment of $400 on the other farm purchased by him at that time, and that his daughter-in-law was in the next room and knew the details of the transaction.

   [*261] The father's testimony is supported by the testimony of his two daughters, a grandson and two neighbors.  One daughter, Mrs. Anna Tapman, testified that she talked with both defendants in 1925 or 1926, that they said they did not want to go back to the farm, that they might as well get their money out of it and pay it on their house, and that they both acknowledged the sale of their interest in the [**451] farm to the plaintiffs.  According to Mrs. Tapman, her sister-in-law told her that they, the defendants, had received $570 on account of the purchase price, and her brother told her, in 1942, in the[***12] presence of her son, that they, the defendants, had been paid out for their interest in the farm, but that he wanted $1,200 for his work.

   Another daughter, Mrs. Elsie Seippel, testified that sometime after 1933 "when I was talking to my brother he said the first payment he got when he lived on Loretta Avenue, and he had his second payment when he lived on the farm in a very small house, and she said she guessed she will have to live there quite a while as my father had paid them off and there was not any more money coming to them."

   Mrs. Tapman's son, in an affidavit, admitted by agreement, stated that in July, 1942, during a conversation between his mother, his uncle, William Boehm, Jr., one of the defendants, and himself they were told by the said defendant that he had been paid for any and all interest he had in the farm in question.

   Emil Gertz, a neighbor, testified as to two conversations with William Boehm, Jr.  In the first conversation, the defendant said "he did not know anything about making tobacco bed and wanted to find out as he was expecting to buy a farm and his father was to pay him out his share he had in the place." In the subsequent conversation, after the defendant[***13] had purchased his farm, the defendant said "he had $800.00 left in the place, he got his share out of it, he was not interested because not making money on it, could not make living on it for two families, so he decided to go for himself." Arthur [*262] Thompson, another neighbor, corroborated Gertz as to the first conversation.

   Both of the defendants testified and their testimony is directly in conflict with the testimony of the father.  They both deny that there was ever any agreement to sell their interest in the farm to the plaintiffs, saying that the matter was never discussed by the parties.  The son denied that he received the payment of $570 on account of the purchase price as testified by the father, but admitted that in 1924 he received $500 from his father, claiming that $250 thereof was for his share of the sale price of certain cross-ties cut from the farm and sold about 1922 and that the other $250 was for his one-half interest in an automobile, purchased jointly by him and his father in 1920, at about the time the farm was purchased.  The son denied receiving from the father in 1933 the sum of $830, which the father claimed was paid as the balance of the [***14]purchase price, with interest from the date of the oral contract, but admitted receiving from his parents at that time $500, saying at first that his father gave it to him, then that his mother made the gift and finally that they loaned him the money.  And at the same time he was contending that his parents were indebted to him for his labor in assisting in erecting the improvements on the farm.

   It is interesting to note that while Mrs. Boehm, Jr., denied ever making any agreement to sell her interest in the farm and stated that the matter was never discussed in her presence, she admitted taking part in the conversation relating to the defendants' moving off the farm and testified as follows: "I said, if they paid me out what I put in the farm and my money that I put on the mortgage I would sign off." This conversation took place before the plaintiffs made the final payment to the defendants and shortly thereafter the defendants did move from the farm.

   The first question for our determination is whether or not there was an agreement for the sale of the defendants' [*263] interest in the farm to the plaintiffs for the sum of $1,100, as alleged by the plaintiffs.  This question [***15]is a factual one and as much of the testimony is in direct conflict its determination turns upon the weight to be given the testimony of the several witnesses and the inferences to be drawn therefrom.  All the testimony must be considered in connection with the relative situation and resources of the parties and with the purposes which they were seeking to accomplish during the entire period from 1920 to 1942.  Certainly the conduct of the defendants during this period is consistent with the claim of the plaintiffs that there was an agreement of sale.  During the time that none of the parties lived on the farm the taxes and interest were paid by the plaintiffs, with no contribution or offer of contribution from the defendants.  And when the defendants returned to the farm, during the period of economic distress, the relationship between the parties is not inconsistent with the plaintiffs' claim of ownership of the entire farm. At that time no offer was made by the defendants to reimburse the plaintiffs for the payments made by them for taxes, interest and materials [**452]for the barn, garage and chicken house.  The agreement then was simply for the tilling of the farm by the[***16] father and son, with each to receive one-half of the profits.
 
   We are not impressed by the son's explanation of the payment of $500 in 1924, for his interest in the crossties and the automobile.  His testimony with respect to the automobile is not at all convincing.  The automobile was purchased jointly in 1920 for $500, was used by both the father and son to go back and forth from the farm to Baltimore and was sold by the father for $42. It is unreasonable to believe that in 1924, after it had been used for more than four years, the father would buy the son's interest for the same price at which the automobile was originally purchased.  We have already commented on the evasiveness of the son's testimony respecting the payment of $500 in 1933. From a consideration [*264] of all the testimony in the record we have reached the conclusion that the plaintiffs did purchase the defendants' interest in the farm and have paid for it in full, and that the daughter-in-law did know of the agreement of sale and the details thereof and acquiesced therein.  We feel that the testimony as a whole, in spite of her express denial, shows that her husband, in dealing with their interest in[***17] the farm and in agreeing to sell the same to the plaintiffs, was acting with her consent, either express or implied, and that she is now estopped from setting up the defense that she was not a party to the alleged agreement.  She received, and is now holding on to, the fruits of the transaction, and she will not now be allowed to repudiate the same.  The present case is to be distinguished from the cases of Abrams v. Eckenrode, 136 Md. 244, 110 A. 468; Milburn v. Michel, 137 Md. 415, 112 A. 581, and Weininger v. Weininger, 140 Md. 227, 117 A. 568, relied upon by the defendants.  In those cases the court found as a matter of fact that the wife was not a party to the contract sought to be enforced, and that in dealing with the property the husband was acting without either her express or implied consent.  In this case we find, as a matter of fact, that she was actually a party to the contract of sale and stands, therefore, in the same position as her husband in respect thereto.

   The contract was entirely in parol, and is unenforceable because not in writing as required by the fourth section of the Statute of Frauds, unless there is some act of part performance sufficient[***18] to remove the bar of the statute.  The only acts of part performance proved in this case are the payment of the purchase price and the continuation of the plaintiffs in possession of the farm. But the payment by the purchaser to the vendor of a part, or even the whole, of the purchase money is not an act of part performance which will of itself take the parol contract out of the statute.  Miller's Equity Procedure, Sec. 709; Hopkins v. Roberts, 54 Md. 312; Gorsuch [*265] v. Kollock, 139 Md. 462, 115 A. 779. When possession is assumed as an act of part performance it must appear that the land has been delivered and the possession taken in pursuance of the contract and so retained and continued.  The possession must be referable to the contract.  Mere occupancy, not shown to be in pursuance of the contract, does not constitute part performance. Miller's Equity Procedure, Sec. 707; Semmes v. Worthington, 38 Md. 298.

   In the last mentioned case, at page 326, the court says that "the partial and subordinate possession that was held by the plaintiff, under the peculiar circumstances of the case, was, to make the most of it, an equivocal act, susceptible of a variety[***19] of interpretations, and affording no evidence or presumption whatever of the particular contract alleged, and to allow such act, even if the contract were otherwise established, to remove the bar of the statute would operate a virtual repeal of it as applied to cases like the present, and let in all the mischief that was intended to be guarded against by the statute.  The principle upon this subject is well established. The act relied on as part performance must, in itself furnish evidence of the identity of the contract; and it is not enough that it is evidence of some agreement, but it must relate to and be unequivocal evidence of the particular agreement charged in the bill."

   The general rule as stated in 58 Corpus Juris, p. 1009, is that, where the parties to an oral contract for the conveyance of land were tenants thereof in common, the mere continuance in possession by the vendee after the withdrawal of the vendor from possession is not sufficient to remove the bar of the statute. We do not feel that the possession of the plaintiffs in the case is so referable to the contract as to constitute an act of part performance, coupled even with the payment of the full [**453] [***20] purchase price, which would justify a decree for specific performance. Nor do we think that the evidence in the record relating to the improvements erected on the [*266] property and paid for by the plaintiffs is evidence of acts so unequivocally referring to and resulting from the agreement of purchase as to bring the case within the rule laid down by this court in the case of Schluderberg v. Deitz, 156 Md. 547, 144 A. 774, and to take the case out of the Statute of Frauds.

   But the plaintiffs are not without remedy.  The principle which the courts recognize as the foundation of relief in this class of cases was stated in Bowie v. Stonestreet, 6 Md. 418, 61 Am. Dec. 318, quoting from 1 White & Tudor's Leading Cases in Equity, 527, as follows: "When the specific execution of a parol agreement cannot be decreed, in consequence of the uncertainty in the terms, or of the statute being relied on, the court will, if there is no remedy at law, or it is uncertain or embarrassed, or under circumstances of special equity, decree compensation to the extent of the purchase money paid, and the value of lasting improvements."

   The principle was recognized and applied by this court[***21] in Green v. Drummond, 31 Md. 71, at page 83, 1 Am. Rep. 14, where the court said:

   "A specific execution of the alleged agreement being denied, the question is, whether the bill should be retained for the purpose of awarding compensation for the purchase money paid and advanced by him?

   "It has been said to be a general rule of equity that 'no one shall avail himself of a law made for his protection, so as to injure another, and especially, not to enrich himself at his expense.' [Anthony v. Leftwich's Representatives] 3 Rand. [Va. 238] 258.

   "'The Statute of Frauds was intended to protect parties against feigned or incomplete agreements.  But when one party induces another, on the faith of a parol contract, to place himself in a worse situation than he would have been if no agreement had existed, and especially if the former derives a benefit therefrom, at the expense of the latter, and avails himself of his legal advantage, he is guilty of a fraud, and uses the Statute [*267] for a purpose not intended, the injury of another, for his own profit.  The fraud does not consist in availing himself of the Statute to protect himself, but in using it to appropriate to himself[***22] what justly belongs to another.' [Anthony v. Leftwich's Representatives] 3 Rand [Va.] 259.

   "To prevent such injustice, Courts of Equity, in cases where the party is not entitled to specific performance, often grant relief by decreeing just compensation; that is, by decreeing the repayment of the money expended on the faith of the contract.  Many cases might be cited in which such relief has been granted.

   "Some conflict has arisen upon the question as to the particular circumstances under which a Court of Equity will entertain jurisdiction and grant relief, by awarding compensation to a party who fails to maintain his bill for specific performance. 'Such relief,' as stated by Judge Story (2 Eq., Sec. 794), 'is ordinarily to be decreed in equity only as incidental to other relief sought by the bill and granted by the Court, or where there is no adequate remedy at law, or where some peculiar equity intervenes.'

   "In this case it seems to us doubtful whether the appellant could, by any proceeding at law, recover the money paid and advanced by him under the contract; for there he would be met by the provisions of the Statute, which would preclude him from giving evidence of such[***23] parol contract.

   "The money not being advanced as a loan to be repaid, but expended in pursuance of the agreement for the joint purchase of land, in order to maintain an action at law to recover back the money, it would be necessary to prove the contract under which it was paid, which he would be precluded from proving by parol, by reason of the provisions of the Statute, and thus his remedy at law might fail and justice be denied.  [Anthony v. Leftwich's Representatives] 3 Rand [Va.] 259, 260.; White v. Coombs, 27 Md. 489.

   [*268] "In such case, according to the authorities a Court of Equity ought to give relief, because there is no remedy at law, or a very inadequate and pecarious one."

   We find the same principle applied in the cases of Cross v. Iler, 103 Md. 592, 64 A. 33; Wiley v. Wiley, 115 Md. 646, 81 A. 180, Ann. Cas. 1913A, 789; Ahrens v. Ijams, 156 Md. 1, 142 A. 489; and Ahrens v. Ijams, 158 Md. 412, 148 A. 816. In our [**454] opinion the principles applied in the cases above cited apply with equal force to this case.

   The plaintiffs are entitled not only to a decree for compensation but also to a lien on the defendants' interest in the[***24] farm. The rule is stated in 3 Tiffany on Real Property, 2nd Ed., Sec. 667, as follows:

   "The vendee under a contract for the sale of land has, in equity, before he recieves a conveyance of the land, a lien thereon for any payments which he has made upon the purchase price in case the contract fails of consummation owing to the fault of the vendor."

   See also Chamberlain v. Preston, 170 Md. 1, 182 A. 579.

   While the bill does not pray for a decree for compensation to the extent of the purchase money paid and a lien on the land therefor, it does contain the prayer for general relief, and as stated by this court in Hill v. Pinder, 150 Md. 397, at page 414, 133 A. 134, at page 140, "Under the prayer for general relief the court is not confined to what may be specially asked, but may adapt the relief to the nature of the case as stated in the bill; and, if the specific relief prayed for cannot be granted, the plaintiff may be given any relief which is consistent with, and warranted by, the allegations of the bill. Miller's Equity, Sec. 100." The allegations of the amended bill of complaint in this case, which are quoted herein, are of such a character as to meet the requirements[***25] of the above rule and to sustain the decree for compensation and lien.

   [*269] As to the amount of the lien, we see no reason to alter the findings of the chancellor.  He allowed the amount of the purchase price, $1,100, without interest, together with the additional sum of $400, which represents one-half of the difference between the amount of the mortgage at the time of the oral agreement and the amount due thereon at the date of the decree, the mortgage having been reduced from $3,200 to $2,400, without any additional allowance to the plaintiffs for the enhancement in value of the property due to the permanent improvements placed thereon subsequent to the agreement.  The plaintiffs have not appealed from the decree and the amount of $1,500 represents the very minimum that is owed by the defendants under the evidence in the case.

   The defendants have urged that the plaintiffs have a full, complete and adequate remedy at law, but this argument is without force in view of the authorities cited in Green v. Drummond, supra.

   The only other defense relied upon by the defendants is that of laches. In Demuth v. Old Town Bank, 85 Md. 315, 326, 37 A. 266, 268, laches was[***26] defined by Chief Judge McSherry as follows: "Strictly speaking, and using the term as it is understood in the law, laches is such neglect or omission to assert a right as, taken in conjunction with lapse of time more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity."

   And in Oak Lawn Cemetery v. County Commissioners of Baltimore County, 174 Md. 280, 291, 198 A. 600, 605, it is said that: "The doctrine of laches is an application of the general principles of estoppel. Pomeroy's Eq. Juris., Vol 4, Sec. 1440 * * *: 'Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another.  So long as parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce [*270] them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right'."

   The defendants have not been injured by the[***27] delay and the suit was instituted promptly after the assertion by the defendants of rights adverse to the plaintiffs' claim of complete ownership of the entire farm. Under the circumstances the plaintiffs are not guilty of laches.

   As no evidence was introduced by the defendants in support of the allegations of their cross-bill, there was no error in its dismissal.  And there was no error in overruling the demurrer to the amended bill of complaint.  As we have already indicated in our discussion of the applicable law, it presented a case entitling the plaintiffs to equitable relief.

   The defendants have urged that certain evidence offered by the plaintiffs was inadmissible.  We have examined all [**455] of the exceptions and find that there was no error in its admission, but even if we found that it was inadmissible, it would not affect the conclusion which we have reached.

   Decree affirmed, with costs. 

CHARLOTTE H. TAYMAN v. TILDEN F. HARE 
No. 6, October Term, 1943
 
Court of Appeals of Maryland
 
182 Md. 221; 34 A.2d 346; 1943 Md. LEXIS 196

 November  3, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Judgment reversed.  Judgment entered for appellant against appellee, with costs here and below.

CORE TERMS:  mortgage, settlement, purchaser, mortgagee, purchase price, vendee, decree, deed, vendor, rental, arrearages, indemnity agreement, specific performance, written contract, overdue, rent, conveyed, rested, primary responsibility, agreed to indemnify, agreed to purchase, contract to sell, mortgaged land, mortgage debt, shore, indemnify, collected, allowance, mortgagor's, adjusted

COUNSEL: John S. Strahorn and Murray MacNabb for the appellant.

   William J. McWilliams, with whom was A. Bowie Duckett, Jr., on the brief, for the appellee.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, Grason, Adams, and Bailey, JJ.  Bailey, J., delivered the[***3] opinion of the Court.

OPINIONBY: BAILEY

OPINION: [*223] [**347] Charlotte H. Tayman agreed to sell to Tilden F. Hare a mortgage in the principal amount of $15,500 which she held on property known as "Hillwood Shores," for the sum of $14,500.  The agreement dated April 26, 1939, was in writing and provided that Mrs. Tayman "hereby agrees to indemnify the said party of the second part (Hare) from any loss arising from taxes due as of this date over and above the sum of $800.00 the party of the second part (Hare) agrees to absorb said taxes if need be under said sum of $800.00." Hare paid Mrs. Tayman $200 at the time of the execution of the agreement.  Mrs. Tayman had previously borrowed from one Geraldine Dugan $9,000 on the security of this mortgage and when settlement was made by Hare on June 15, 1939, within the sixty days provided in the agreement, he paid the further sum of $4,989.91, after making adjustment of interest and certain rents collected by Mrs. Dugan and after allowance for the $9,000 thereof due to Mrs. Dugan.

   On September 22, 1939, Hare entered into a written contract for the purchase of "Hillwood Shores" from Jack DeMar, the owner thereof, for the sum of [***4]$5,000, subject to the said mortgage for $15,500.  On September 29, 1939, and October 9, 1939, he paid taxes levied against the said property for the years 1937, 1938 and 1939 and then overdue, in the total amount of $1,512.91.  At the time of the execution of the last mentioned contract he paid to DeMar the sum of $500, and on October 10, 1939, he made another payment of $1,000.

   DeMar had previously thereto, on April 20, 1939, entered into a written contract with Crosco Building Company, Inc., for the sale of the identical property for $6,000, subject to the mortgage thereon in the amount of $15,500. On October 10, 1939, Crosco Building Company, Inc., filed its bill of complaint against DeMar in Circuit Court No. 2 of Baltimore City for the specific performance of this contract.  From the decree of said [*224] court directing that the said contract be specifically performed, an appeal was taken, and by the opinion of this court, reported as DeMar v. Crosco Building Company, Inc., 179 Md. 161, 16 A. 2d 884, the decree was affirmed on December 18, 1940.

   We quote as follows from the opinion in said case at page 164 of 179 Md. at page 885 of 16 A. 2d: "On the same date[***5] that the answer was filed Tilden F. Hare filed a petition in the case, referred to the contract whose specific enforcement was sought, and alleged that such contract not being of record, the petitioner had without knowledge thereof more than five months subsequent to the date of the agreement made a contract to purchase the property for $5,000, on account of which he had paid $2,000 and other large sums for arrearages in taxes.  He asked leave to intervene in the proceedings for the purpose of protecting his rights.  Such leave was granted, whereupon Hare filed an answer to the bill of complaint, in which he, for the most part, contented himself with neither admitting nor denying its allegations, except as to the existence of a $15,500 mortgage upon the property and alleged further that he had purchased the property and in addition to taxes and other expenses had advanced DeMar $2,000 as [**348] a part of the purchase price. With his answer he filed his contract of purchase as an exhibit."

   While the suit was pending in the Circuit Court No. 2 of Baltimore City it appears from the record in the present case and from the opinion of this court in the case of DeMar v. Crosco [***6]  Building Company, Inc., supra, that Hare paid to DeMar an additional $2,000 and on May 31, 1940, received from DeMar a deed for the property involved therein.  Hare was represented at that time by J. Paul Schmidt, a member of the Bar of Baltimore City.  Thereafter, on February 15, 1941, in compliance with the decree of this court the property was conveyed by Hare to Crosco Building Company, Inc.  Hare testifies in this case that the settlement was made [*225] by Schmidt and that a proper adjustment was made of the taxes at the time of the settlement.

   This suit was instituted in the Circuit Court for Anne Arundel County by Hare against Mrs. Tayman to recover from her the sum of $712.91, alleged to be the amount of his loss in excess of $800 on account of taxes due and owing on the property at the time he purchased the mortgage from her.  The declaration contains the common counts in assumpsit and a special count on the contract. The case was heard by the court without a jury.  The court entered a judgment for the plaintiff in the amount of $712.91 and costs, and it is from this judgment that the defendant appeals.

   The appeal comes to this court under Trial Rule 9 (c) of[***7] the General Rules of Practice and Proceedure, 1941, and is taken and heard according to the practice in equity.  The record, however, does not contain a statement of the trial court of the grounds for its decision and the method of determining the damages awarded, as required by subsection (a) of said rule, although it was stated in the argument in this court that the statement was made by the trial court but not transcribed for the record.

   We have already noted the pertinent portions of the plaintiff's testimony. Schmidt was then called as a witness for the plaintiff and after testifying about the settlement at the time of the purchase of the mortage, about which there is no dispute, he was then questioned about the settlement between Hare and Crosco Building Company, Inc.  His testimony relating to this settlement is evasive and inconclusive.  Although the settlement was made by him, he produced no figures to show how it was arrived at or what items of taxes, interest and rents were adjusted. In his direct examination he contents himself with the statement that in the settlement of the Crosco transaction Hare received $12,741.70, that the Dugan mortgage was $9,000, so that the[***8] net amount received by him was $3,741.70.  He then says that as Hare had paid $4,989.91 for the mortgage, the difference between [*226] these two figures, or $1,248.21, is his loss in the whole transaction, without taking into account the taxes in the amount of $1,512.91 paid by him.

   On cross-examination Schmidt's testimony was equally vague.  In answer to a question as to whether there was not enough money coming from the Crosco Building Company's contract to have paid Hare in full for every cent he had expended for mortgage, interest and taxes, his answer was as follows: "I believe that in order to determine that I would have to go into rather elaborate accounting because if you had before you this contract of April 20th, 1939, and see how involved it is regarding the adjustment, a contract of sale between Jack DeMar and the Crosco Company, it's the terms of that contract that would make the matter something you could not say 'yes' or 'no' to.  I could not say 'yes' or 'no' whether he could have made his money or not."

   We cannot see how the settlement was a difficult one.  We quote again from this court's opinion in the case of DeMar v. Crosco Building Company, Inc., [***9] supra, 179 Md. at page 162, 16 A. 2d at page 884: "The bill of complaint was filed October 10, 1939, and the contract whose enforcement was specifically sought was dated April 20, 1939.  Under its provisions the land referred to was sold by DeMar to appellee for $6,000, $250 of which had been paid to one Steinberg, attorney and agent for DeMar, which sum Steinberg was to hold in escrow pending examination of title, and $5,750 was to be paid at the time of settlement, which was to take place within ninety days from date of contract.  It was further agreed that the property was to be conveyed to appellee subject to a mortgage thereon which the vendor warranted not to be in excess of $15,500.  Appellee, as vendee, agreed to be bound by the terms referred to, and also [**349] agreed to pay arrearages in taxes, water rent, paving, city and county benefit assessments, if any, and interest charges on the $15,500 up to the amount of $800, but all mortgage interest in excess of the $800 was to be paid by DeMar at the time of settlement, likewise all rentals collected [*227] by DeMar for the year 1939 were to be adjusted to date of settlement. The agreement contained a warranty[***10] that the vendor was receiving an annual income for the year 1939 of $1,772.50 from rentals of shore cottages mentioned on a schedule attached thereto.  If the vendee found that rentals did not amount to the figure named, which difference was not occasioned by nonpayment, an allowance was to be made in the reduction of the purchase price based upon a 6 per cent. capitalization 'of the difference in rental from the amount hereinbefore stated and that actually due and payable.' It was further provided that if the existing mortgage should be in default in payments of principal or interest prior to settlement date the vendee should be entitled on behalf of the vendor to make payment of the same in order to prevent foreclosure proceedings, and all such payments should the sale be consummated were to be regarded as payments by the vendee on account of the mortgage. Upon payment of the full purchase price of $6,000 a deed for the property was to be executed by the vendor at the vendee's expense conveying the land by 'a good and merchantable title to the vendee free and clear of any leases or ownership claims in the shore bungalows or any other outstanding interest' other than the $15,500[***11] mortgage."

   At the time of the settlement Hare had paid to DeMar $3,500 on account of the purchase price of $5,000 and approximately $1,500 for taxes due at the date of his contract, and had received a deed for the property.  The reasonable presumption is that the payment of the taxes was made for the account of DeMar, the owner of the property, and that the sum so paid by Hare was credited as a part of the purchase price. The admitted payments under the contract and the payment for taxes amount to approximately $5,000, which was the purchase price under the contract.  Another adjustment of taxes was provided for in the contract between DeMar and Crosco Building Company, Inc., and it is reasonable to presume that the settlement was made in compliance [*228] with the terms thereof.  And the plaintiff so testifies.  How then can it be said that the plaintiff has or could possibly suffer any loss arising from taxes due as of April 26, 1939?  He has a mortgage of $15,500 and in addition thereto he has paid only $5,000 for the property, including the sums paid by him for taxes. And the Crosco Building Company, Inc., is required, under the decree which was affirmed by this court, [***12] to assume or pay the mortgage in the amount of $15,500 and to pay in addition thereto the sum of $6,000 and arrearages in taxes, interest, et cetera, if any, up to the amount of $800.  Here is a net profit to him of at least $1,000, instead of a loss.  Under these circumstances we cannot attach to the testimony of Schmidt, unsupported by the detail of the settlement figures, sufficient probative value to sustain the contention of the plaintiff that he has suffered a loss on account of the payment of the taxes. And there is no other evidence in the record upon which the judgment may be upheld.  And the agreement of the defendant was to indemnify the plaintiff from any loss arising from taxes due as of that date, over and above the sum of $800, and not to reimburse him for any payments made on account of such overdue taxes in excess of $800.

   The primary responsibility for the payment of the taxes rested upon DeMar, the owner of the property.  When the payments were actually made in September and October, 1939, the plaintiff was the purchaser of the property under a written contract of sale, as well as the holder as assignee of the $15,500 mortgage thereon, subject to the[***13] rights of Mrs. Dugan, in $9,000 of said mortgage. The legal obligation to pay the taxes rested upon the then owner of the property.  Union Trust Co. v. Rosenburg, 171 Md. 409, 415, 189 A. 421. We feel, therefore, that when plaintiff paid the taxes, he was paying them as owner or as purchaser under what he then considered a valid contract of sale, and not as mortgagee. And even if he had paid them as mortgagee, to protect his interest in the mortgage, he was entitled to add the sums so paid [*229] to the mortgage debt. Young v. Omohundro, 69 Md. 424, 429, 16 A. 120; 36 American Jurisprudence, "Mortgages," par. 341, pp. 860, 861.  In either event, the plaintiff [**350] could suffer no loss on account of the taxes, for which the defendant would be responsible under the contract sued on.

   For the reasons stated, the judgment will be reversed, and in accordance with the rule, a judgment will be entered for the appellant against the appellee, with costs here and below.

   Judgment reversed.  Judgment entered for appellant against appellee, with costs here and below. 

MARGARET M. COLLIER v. HERMAN O. COLLIER; SAME v. SAME 
Nos. 14, 26, April Term, 1943
 
Court of Appeals of Maryland
 
182 Md. 82; 32 A.2d 469; 1943 Md. LEXIS 179

 June  2, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeals from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: The decree in Record No. 14 is affirmed and inasmuch as appellee did not appeal from the decree filed January 22, 1943, in Record No. 26, that decree also will be affirmed; the appellee to pay costs in both cases.

CORE TERMS:  entireties, partnership, tenants, partner, divorce, daughter, decree, cruelty, husband and wife, fight, own conduct, attacked, appointment of a receiver, income tax, accounting, scratched, spouse, trucks, general rule, assume jurisdiction, general relief, final decree, real estate, corroboration, corroborated, satisfactory, unequivocal, chancellor, conscience, copartner

COUNSEL: George B. Woelfel for the appellant in both cases.

   Benjamin Michaelson for the appellee in both cases.

JUDGES: Sloan, J. C., Delaplaine, Collins, Marbury, Grason, and Adams, JJ. Grason, J., delivered the opinion of the Court.

OPINIONBY: GRASON

OPINION: [*83] [**470] The cases presented in records numbers 14 and 26, April Term, involve the domestic relations of the parties.  Both proceedings were instituted by the wife against the husband and from the decree in each case, passed by the Circuit Court for Anne Arundel County, in equity, an appeal has been taken to this court by the wife.

   The prayers of the bill in record number 14 are: (1) a divorce a mensa et thoro; (2) the care and custody of the two children; (3) and (4) permanent alimony [*84] and alimony pendente lite; (5) for the appointment of a receiver to conduct and sell certain business alleged to be conducted as a partnership, and to sell property held by the entireties; to sell certain trucks and passenger cars, a yacht, and the proceeds of the sale to be held by the receiver until an agreement[***4] is reached to divide same, or one of the parties dies; and (6) for general relief. The bill alleged cruelty.

   An answer was filed by the husband, in which he denied: (a) the alleged cruelty; (b) that his wife was a copartner with him in the business but charged that the business is his sole and separate concern.

   The bill in record number 26 alleges a partnership of the business, and restates many of the matters contained in the first bill.  It prays: (1) for the appointment of a receiver to collect the rent arising from real estate held as tenants by the entireties, and hold the money until death of either party and to pay it over to the survivor; (2) for the appointment of a receiver to operate the business and divide the proceeds; (3) for an accounting of the business since the 8th day of May, 1942, and (4) general relief.

   An answer was filed denying that the business was operated by the husband and wife as copartners; and denying that she was entitled to the relief prayed. That by decree dated the 21st day of January, 1943 (filed January 22nd) the chancellor decreed:

   "1. That prayers one, two and three of the bill of complaint for a receivership be, and the same are hereby, [***5] denied, subject to further order of court.

   "2. That, under the prayer for general relief, the defendant account to the plaintiff for one-half of the net rents, income and profits from the said real estate, 270 West Street, Annapolis; the said accounting to be from the date when the plaintiff withdrew from the occupation and possession of the said premises as shown by the record of these proceedings and in No. 1992 Divorces in this court, to wit, April 3, 1942, the said accounting also to be made and returned by the defendant, in form [*85] and substance to be approved by this court, not later than February 15, 1943.

   "3. That in order to determine the fair rental value of the said premises, 270 West Street, to be used as a basis for the accounting above prescribed, testimony be taken in open court on Monday, February 1, 1943, at 10 o'clock A. M., at which hearing both parties may present testimony of witnesses competent and qualified to testify on this question of rental value, including the citation of costs and expenses properly chargeable against the said property, to the end that the net rent payable in equal shares to the plaintiff and defendant as tenants by the entireties[***6] may be determined by the court."

   The record shows that the appeal in this case to this court from the decree dated January 22, 1943, was filed on February 3, 1943.  The lower court was without jurisdiction to take further action in the case after the appeal was entered.  On February 1, 1943, testimony was taken regarding the rental value of 270 West Street, Annapolis.  On March 29, the court filed what is termed "final decree" and inasmuch as this final decree was filed after an appeal had been taken by the appellant from the decree filed January 22, 1943, it cannot be considered by this court and we will deal with the decree filed January 22, 1943.

   Testimony was taken under what we may call, for brevity, the divorce bill, and the court, on the 12th day of October, 1942, decreed: "(1) that the bill of complaint be, and it is hereby, dismissed; (2) that the custody of the children, Margaret G. Collier and Gerald Collier, be, and the same is hereby, continued in the defendant, Herman O. Collier, subject to the further order of this court; and (3) that the defendant pay the costs of these proceedings."

   The parties were married in Highlandtown on the 19th day of January, 1922. The[***7] wife left her husband twice before the final separation, once when the first child was born, and again shortly after the birth of another [*86] child, which was twelve or thirteen years ago, and on each occasion a [**471]reconciliation was effected.  From that time until about three years ago, so far as the record discloses, they lived together at least peacefully, if not happily.  The husband started to work for the Pepsi-Cola Suburban Club in 1921.  He was a driver salesman in the Annapolis area for the company and in 1934 the business had grown and the company decided to establish a warehouse and distributing point in Annapolis and to employ the appellee to look after the business.  This offer was accepted.

   He did not have any money but was assisted by the company in getting merchandise on consignment.  It lent him trucks and assisted him in purchasing trucks, for seven or eight years.  It extended to him the use of its offices and helped him generally.  It turned over to him its entire business in that area, which was considerable.  He went to Annapolis and was there a month when his wife and children joined him.  The business was conducted in his name and always has[***8] been.  He ordered the necessary merchandise, conferred with the company, paid the bills with checks he signed, but when he way away his wife deposited the proceeds of the business in such a way that she could draw checks. Nevertheless, the real bank account was in his name and was to go, at death, to his wife and she could not draw checks against it.

   He bought the property where the business was conducted on West Street and took title in his name and his wife's.  This seems to be a valuable piece of property and is said to be worth $25,000.  It is subject to a mortgage of $4,500.  On October 15, 1938, he purchased a home, taking title in himself and wife as tenants by the entireties, and the house is said to be worth $25,000. This property is subject to a mortgage of $11,000.  He acquired a yacht and took title to it in himself and wife.  Several trucks were acquired for the business, the titles to which were taken solely in his name, and this business was conducted successfully.

   [*87] The home expenses, which amounted to about $70 a week, and money for other things that the wife wanted, were taken out of the proceeds of the business.  For four years these parties got[***9] along well at Annapolis. Their daughter was sent to Mount Saint Agnes Junior School, in Baltimore, and their son is now attending Randolph-Macon College.

   Trouble started because of the wife's desire to share as a partner with her husband in this business, which resulted in frequent fussing and quarreling. The wife testifies that she worked regularly at the business, which is not corroborated, and her husband states that if an average were taken over the years she would not have spent over an hour a day at the office.  She had no business experience, except, as she says, that before they went to Annapolis she would sometimes be with her husband when he was soliciting business and that she helped him by joining in the solicitation and being nice to prospective customers.  In 1937 she persuaded her husband to file an income tax return as partners and this they have done for some three or four years.  The wife's claim as a partner in her husband's business is based upon the following facts: (a) that the husband acquired property as tenants by the entireties, (b) that he placed his bank account so that after he died it would go to his wife, (c) that he purchased a yacht in the joint[***10] names of himself and his wife, and (e) that she worked hard at the business and strove for its success.  (This is not corroborated and is denied by the husband and it would seem that if she did work so hard at the business it would be a very easy thing for her to produce evidence in corroboration.) (f) That income tax returns for three or four years were made in the name of herself and husband as copartners. The explanation which the husband offers for filing the income tax returns in partnership form is that he did this to keep peace; that his wife fussed and fussed and fussed. That she did quarrel in the home is testified to by the daughter, twenty years old.

   [*88] These are the main and controlling facts to sustain the wife's claim that she was a partner with her husband in business.  The burden of proof was upon the wife as plaintiff to prove that she was a partner. National Building Supply Co. v. Gosnell, 116 Md. 640, 82 A. 557; Houston v. Swartwout, 161 Md. 279, 284, 157 A. 193.

   In considering this case we need not stop to determine the rights of third parties, as none are involved.  The records here present a case of a wife claiming to be a partner of her husband[***11] and they alone are affected. The main test of whether or not a partnership exists is the intention of the parties to create a partnership. [**472] "A partnership can only exist in pursuance of an expressed or implied agreement to which the minds of the parties have assented.  The intention or even belief of one party alone, cannot create a partnership without the assent of the others." Phillips v. Phillips, 49 Freeman (Ill.), 437, 439.

   "The particular test as to the existence of a partnership relation which is most widely accepted today, and which is applicable especially as between the parties themselves, irrespective of the rights of third persons, is that a partnership is formed and exists only when it is the intention of the parties that they should be partners. Partnership contracts, like other contracts, are governed by the intention of the parties.  * * * This intent may be manifest by the terms of their agreement, the conduct of the parties to each other under it, or by the circumstances generally surrounding the transaction." Southern Can Co. v. Sayler, 152 Md. 303, 314, 315, 136 A. 624, 628; Townsend v. L. J. Appel Sons, Inc., 164 Md. 255, 164 A. 679.[***12]

   It is admitted that there was no written partnership agreement entered into by the husband and wife and she bases her claim largely on the fact that she diligently worked at the business.  "The services of the wife to which the husband is entitled include those rendered by the wife in performance of her household and domestic duties, as well as those rendered by her while assisting [*89] the husband in his business." 30 C. J., Husband and Wife, Sec. 36, page 521.  With this statement of the law it would require evidence of a satisfactory and unequivocal nature, in addition to a wife's services, to warrant a court in holding that she is a partner with the husband in the business conducted.  Connar v. Leach, 84 Md. 571, 576, 36 A. 591, 592. In this case, although from the wife's testimony she might have called people to testify in corroboration of her statements, yet most of her case is based upon her testimony alone.  Everything she did in the business is so construed by her as to give it a meaning to strengthen her claim as a partner. We think it may be said with full truth, that a wife who helps her husband in business is not treated by him in the way that he would[***13] treat an employee, and if she is designing she is in a position to maneuver and to give her every action a meaning to accomplish her purpose.  In the case of Connar v. Leach, supra, a wife asserted that her husband bought property with her money.  Judge Fowler said: "Upon all the proof, she appears only to have been aiding her husband in conducting his own business, and any evidence which we have found to the contrary is not of that satisfactory and unequivocal character which is demanded in a case in which a wife claims, as a feme sole trader, the profits of her husband's business by a parol transfer."

   The wife lays stress on the fact that income tax returns were made in partnership form.  The husband explains this by saying that he did it to keep peace, and we do not think that this evidence alone or taken in connection with the testimony offered by the appellant in record No. 14 as well as in record No. 26 is sufficient to show that this business was ever held or conducted as a partnership concern.  We, therefore, hold that this business is not a partnership affair, but it is the sole business and concern of the husband.

   The wife prays that a receiver be appointed[***14] to take over the real estate and hold it under the jurisdiction of the court.  There have been cases involving property [*90] held by the entireties where, because of their peculiar circumstances, this court has granted relief.  In the Masterman case, Masterman v. Masterman, 129 Md. 167, 98 A. 537, the husband left the wife.  The house, owned by the entireties, in which the wife lived, burned.  The wife wanted the insurance money to be used in repairing the house.  She filed her bill and prayed for the appointment of a receiver, so as to apply the insurance money to making the repairs.  The husband demurred to this bill, which was overruled by the lower court and affirmed by this court.  In the case of Brell v. Brell, 143 Md., at page 443, 122 A. 635, the proceeds derived from the sale of a farm and mortgage held by a husband and wife as tenants by the entireties were involved.  It was held that a trustee should be appointed to receive such fund and invest it under the order of the court, one-half of the net income therefrom to be paid to each party until the death of one of them and the corpus to be paid to the survivor, unless sooner distributed by agreement of the parties. [***15] In Annapolis Banking & Trust Co. v. Neilson, 164 Md. 8, 164 A. 157, the court said: "While, through the fiction of unity of husband and wife, tenancy by the entireties [**473] has been preserved intact, the tenants have, as a result of the statutes freeing the wife's property from her husband's control, rights in the common property inter sese, which can be enforced only on the assumption that the husband and wife are two persons." In the case of Whitelock v. Whitelock, 156 Md. 115, page 116, 143 A. 712, 715, there was property sold by the husband and a purchase money mortgage taken in the name of the husband and wife as tenants by the entitreties.  Judge Sloan in that case said: "At common law, the appellant, by virtue of his control of the wife's property, would have been entitled to all of the income.  As affected by statute, however, from time to time, the control of the husband over the wife's property has changed, until now, under the Married Women's Property Acts, * * * in this State the wife shares equally with the husband in the income from a tenancy by the entireties."

   [*91] From these cases it may be deduced as a general rule that courts of equity[***16] will assume jurisdiction to protect the interest of one or the other spouse in property held as tenants by the entireties. Each case will depend upon its facts and upon its appeal to the conscience of the chancellor. These cases are not like the case of Hall v. Hall, 180 Md. 353, 24 A.2d, page 415, for the question in that case was whether, upon a decree of absolute divorce, the court would restore to the innocent party full title to property held before the decree as tenants by the entireties, which was purchased by money of the innocent party.  The court refused so to do and applied the general rule, "that courts of equity in cases for divorce, have no power, unless expressly conferred by statute, to transfer the property of either spouse to the other, or otherwise to dispose of it."

   With regard to the property used as a home for this family, for the reasons hereinafter set forth, the wife is not deprived of its use, but her own conduct and turbulent behavior has brought about a separation.

   With reference to the business property, which is held by the entireties, the court comes to the conclusion, for the reasons set out in this opinion, that no relief should be given the[***17] wife in so far as the business property is concerned, for if she corrects her behavior and returns to her home she will receive the care and attention which married women receive from their husbands who carry on successful and profitable business.  And it would seem to be anomalous in a case where a husband conducts his business in a property which he has bought and paid for and taken title to in the name of himself and wife as tenants by the entireties, to be required to pay rent for such property to the wife, as a result of a situation which the wife has caused.  Such a case does not appeal to the conscience of the court.

   In the last three years these parties lived together, in the language of the wife: "We had two very good fights and others not worth talking about." On one of these occasions she says that her husband "slapped me and [*92] was awful nasty, and he has done it in front of our men in the office." That he "pushed me around and as much as pushed me out of the office" in front of a Catholic priest, and yet none of these men who saw this conduct, nor the Catholic priest, were called by her.  On one occasion the officers came to the house, and they were not called[***18] as witnesses.

   In February, 1942, the date of one of the "very good fights," in which she said her husband beat her (which is not corroborated at all), her husband says that she stabbed him in the back with a fork and scratched his face fearfully, so that he could not appear among his business associates and went to Florida and remained there until his face healed.  The daughter testifies that the mother did scratch her father's face and that her mother attacked him and he did not attack her.

   On the night of April 3, or early morning of April 4, 1942, was the second "very good fight." The wife states that she had worked very hard that day and was tired, yet, according to her own testimony, she waited until 2.30 o'clock in the morning when her husband appeared.  An argument ensued.  It started in the kitchenette and continued in the dining room.  The daughter and son, hearing the argument, came downstairs.  The husband said he told his wife that this was one occasion he was not going to be scratched. He stated that she attacked, and the daughter corroborates him.  According to the evidence of the husband and daughter, the appellant was the aggressor.  This fight is estimated to have [***19]lasted for three quarters of an hour.  The children tried to stop her, but from the [**474] evidence it is plain that she threw them off and returned to the fray.  Finally she got to the telephone and called her mother in Baltimore and the mother of the appellant testified that her daughter told her over the telephone that the children were holding her while her husband was beating her.  This is denied by the appellee and his daughter.

   The burden of proof is upon her to show that she was the victim of her husband's attacks.  She not only fails [*93] in this, but the daughter corroborates the husband's testimony that her mother attacked repeatedly.  The appellee testifies that in the last three years his wife has, upon eight or nine occasions, attacked him and clawed and mutilated his face.  On these occasions he held her hands until she became quiet.  It is plain that all of these outbursts were the result of the wife's desire to dominate her husband in his business affairs.  The appellant states that the husband was intoxicated and that he was neglecting his business because of his intemperate habits.  There is not a bit of corroboration of this testimony and it would be[***20] strange that the husband could meet with the success that he did in his business and be thought of as he is by his company, if his habits were as testified to by his wife.  The wife testified that she engaged in intoxicants.

   The appellant went to her mother's home in Baltimore City on the morning of April 4, stayed there two days, and was then taken to the Maryland General Hospital.  No physician testified in the case, but the record of the hospital was offered in evidence.  She was there from April 6 until April 18, 1942, when she was discharged.  The record shows that she was bruised and scratched, but the X-ray shows no fractures.  She went home from the hospital, accompanied by a nurse, who was later discharged.  She said that she was afraid to go home without a nurse.  The husband did not go to see her in the hospital because he was told that she did not want him to come.  She stayed home about two weeks, when she left.  This was the final separation.  Naturally these two weeks were not happy ones for anyone in that family.  The daughter had gone to Baltimore to see her mother at the hospital and had been ordered out of the room by her mother.

   The appellant further testified, [***21] on cross-examination, that when her husband came in at 2.30 on the morning of April 4 that he struck her without any provocation, but she said that she scratched him and in answer to the question: "Dug your nails right deep?" answered: [*94] "Yes, and I went to the hospital." She denied that she struck him in the back with a fork in February and said: "When we fight, we fight with our bare hands, both of us do." Referring to the final separation, appellant was asked: "What was there in your husband's attitude that caused you to leave at that particular time?" She answered: "Because he was not taking care of the business as I thought he should.  He would leave at 9 until 6 and a perfect stranger, Mr. Dickhoff, a man only been in the business six or seven weeks, never knew what a case of soda cost from a quart of milk, in charge, and I could not stand that and I thought was time to do something." She left because of Mr. Dickhoff's connection with the business and the treatment by her children and the cruelty of Mr. Collier.

   We deprecate the treatment of the wife by the husband on the night of April 3, 1942, but, nevertheless, a wife who has acted like the plaintiff in this case [***22] did towards her husband, his home and his business, does not occupy the position of a spouse who has been ill-treated without any cause or provocation.  In judging the husband's conduct we must be governed by "what naturally and probably a person with the imperfections common to humanity would be prompted to exercise." Bishop, Marriage, Divorce and Separation, 1891 Ed., Vol. 1, Sec. 1646.  "The general rule is that a divorce will not be granted on the grounds of cruelty when the cruelty was provoked by the misconduct of complainant." 27 C. J. S., Divorce, Sec. 56, page 599; Payne v. Payne, 178 Md. 681, 16 A. 2d 165; Clatterbuck v. Clatterbuck, 150 Md. 648, 133 A. 316.

   In Payne v. Payne, supra [178 Md. 681, 16 A. 2d 166], Judge Sloan said: "Where the parties are equally guilty, the courts in this State are reluctant to give either such advantage as would entitle the other of them to a divorce," quoting McClees v. McClees, 160 Md. 115, 152 A. 901.

   In the case of Bonwit v. Bonwit, 169 Md. 189, 181 A. 237, 242, Judge Johnson quoted from Coles v. Coles, 32 N. J. Eq. 547, [*95] as follows: "Had her own conduct been different from what it was, had[***23] she herself been free from blame, I would not [**475] hesitate to pronounce the desired decree for divorce, but I cannot shut my eyes to the fact that her conduct has been unforgiving and unforbearing, calculated to exasperate rather than to conciliate; that she seems to have been unwilling to conform to her husband's wishes in regard to his household affairs, and to discharge her duties under the circumstances in which she was placed." Singewald v. Singewald, 165 Md. 136, 146, 166 A. 441; McKane v. McKane, 152 Md. 515, 520, 137 A. 288.

   We regret the position in which the wife now finds herself.  She has alienated her husband, her daughter and probably her son, but she has brought all of this on by her own conduct. Her remedy is to change her behavior and thereby be restored to her home and the affection of her husband and her children.

   The decree in Record No. 14 is affirmed and inasmuch as appellee did not appeal from the decree filed January 22, 1943, in Record No. 26, that decree also will be affirmed; the appellee to pay costs in both cases. 

EZRA B. WHITMAN, et al., State Roads Commission of Marylandv. WILLIAM P. FORNEY, et ux. 
No. 8, April Term, 1943
 
Court of Appeals of Maryland
 
181 Md. 652; 31 A.2d 630; 1943 Md. LEXIS 164

 April  28, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decree reversed, case remanded, appellees to pay their own costs.

CORE TERMS:  ditch, pipe, surface water, water, cellar, drain, pipe line, repair, upper, land owner, natural flow, civil law, reasonableness, hardship, flowage, filling, terra cotta, injunction, naturally, consented, easement, reopened, erection, restore, culvert, broken, bought, decree, ran, rule of law

COUNSEL: William J. McWilliams, with whom were William C. Walsh, Attorney [***3] General, and Edmond H. Johnson, Special Assistant Attorney General, on the brief, for the appellants.

   Robert E. Kindred for the appellees.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, Grason, and Adams, JJ. Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*654] [**631] The appellants, constituting the State Roads Commission, filed a bill of complaint in the Circuit Court for Anne Arundel County to enjoin the appellees from obstructing and continuing to obstruct the flow of storm water from Light Street Road, a State highway, which is part of the Baltimore-Annapolis Boulevard, through the terra cotta drain pipe and drainage ditch across the appellees' property, and to require the appellees to restore to its original condition this terra cotta pipe under their dwelling house.

   It appears from the evidence that Light Street Road was a county road prior to its becoming a part of the State Road System.  When or how it was taken over by the State does not appear, but the testimony indicates that it has been a State road for over thirty years.  The tract of land on the west side of the road, of which the appellees' land is a part, formerly was[***4] owned by some people named Helmer, who occupied it as a farm for about fifty years.  They eventually laid out the property [*655] in lots, and sold these lots to various persons.  One of the last lots sold was that one belonging to the appellees.  It was purchased by a man named Gross on April 14, 1924.  When he bought the property there was a ditch running through it, which ran from a culvert under the road back more than half the depth of his lot, then turned abruptly to the right, and went through some adjacent property to a stream called "Saw Mill Branch." The land at the road slopes from east to west, and this ditch carried off the surface water. Gross built a small, three-room house on the property beside the ditch, and then put terra cotta pipes in the ditch from a point almost, but not quite, at the entrance of the culvert to a point in the rear of his home.  These pipes were bought by him.  After they were placed in the ditch, the latter was filled up.  Subsequently the house was extended over that part of the covered ditch, which when open, ran along side of it.  It does not appear from the testimony whether or not the appellants were consulted about the installation[***5] of the pipe. Mr. Gross said his wife attended to it, and it was so long ago he did not know.  It is undoubtedly true that the appellants knew about it and did not object to it.  It apparently worked quite well, drawing off the surface water that came down the east side of the road, which ran under the culvert, through the pipe and the open ditch to the next property and then to the stream.  Gross sold to Penland in 1930.  Penland started to dig the cellar out to put in the furnace, and found the pipe running along one side.  He covered up the pipe, and while he testified that whenever it rained his cellar was flooded with water, he did not know whether this came from the pipe or not.  Penland rented to some people named Reeder, who lived in the house nearly three years.  Mr. Reeder said, whenever it rained, the drain water from the sink and bath backed up in the cellar and conditions were very bad. There was considerable odor and disinfectants had to be used.  He cleaned out the open part of the ditch in the rear of the property three times a year.

   [*656] The appellees bought the property from Penland in 1941.  Mr. Forney looked over the property and went in the cellar, but[***6] did not know there were any broken pipes there before he purchased it.  After he got in the property he started to dig in the cellar to put in a hot water furnace, and found a broken pipe out of which black, slimy water came, and a very bad odor. He then notified the State Roads Commission and they offered to repair the pipe. Subsequently and before this was done, Mr. Forney said he wanted the pipe line taken out of the cellar and put on the outside.  The appellants said they [**632]would supply the labor and relocate the drain, if the appellees would supply the pipe, but the appellees did not agree.  The appellees then got in touch with the county health officer, and he made several visits there, accompanied at one time by one of the county commissioners.  He finally told the appellees to block off the ditch where it entered their property.  This they did, and as a result, water backed up along the road and overran other property. This suit was brought to restore conditions to those existing at the time the appellees blocked the pipe line. The court below declined to grant the injunction requested and dismissed the bill.  From that action, the appeal comes here.

   Two schools[***7] of thought have existed in the various States throughout this country on the question whether the owner of lower land may prevent the natural flow of surface water thereon from the land lying above it. These two conflicting schools are thus described in Tiffany on Real Property, 3rd Ed., Vol. 3, Sec. 743: "In some States the rule of the civil law has been adopted, according to which land on which surface water naturally flows from another tenement is regarded as subject to a servitude of receiving such flow, and consequently the owner has no right, by any erection or improvement to prevent the escape thereon of water from the higher land.  In other jurisdictions, what is known as the 'common-law rule' obtains, according to which the ordinary [*657] right of an owner of land to make any use whatever of his land either by erections thereon or changes in the surface, is regarded as independent of the effect which such erections or changes may have in causing water which naturally flows off on his land to collect or flow on other land." The States in which the civil law rule has been adopted as stated by Tiffany are: Alabama, California, Georgia, Illinois, Iowa, Kentucky, Louisiana, [***8]Maryland, Michigan, Minnesota, North Carolina, Ohio, Pennsylvania, South Dakota, Tennessee, and Texas.  The jurisdictions listed as adopting the common law rule are: Arizona, Arkansas, Connecticut, District of Columbia, Indiana, Kansas, Maine, Massachusetts, Mississippi, Missouri, Nebraska, New Jersey, New York, Oklahoma, South Carolina, Virginia, Washington, and Wisconsin. There is also a case in the United States Supreme Court administering New Mexico territorial law.

   The inclusion of Maryland in the States adopting the civil rule seems to be justified by a decision of this court in 1888 in the case of Philadelphia, Wilmington & Baltimore Railroad Co. v. Davis, 68 Md. 281, 11 A. 822, 824. In that case this court discussed decisions in other States and said: "The prevailing doctrine in this country seems to be that the owner of the upper land has a right to the uninterrupted flowage of the water caused by falling rain and melting snow, and that the proprietor of the lower land, to which the water naturally descends, has no right to make embankments whereby the current may be arrested and accumulated on the property of his neighbor.  This is the rule of the civil law apparently[***9] founded on the principles of justice, and said to be 'received with constantly increasing favor in the United States'." The principles thus outlined were applied in that case to a railroad which had closed a gutter and substituted an iron pipe. These alterations had lessened the capacity of the outlet for the surface water, and had flooded the cellar of the plaintiff.  The court said it was incumbent on the railroad when altering the established outlet to [*658] do it in a careful and skillful manner, and if done carelessly and negligently, resulting in injury to the plaintiff, an action of damages could be maintained.

   The principles laid down in this case have not been departed from in this State, but on the contrary, have been reaffirmed in the later cases of Baltimore & S. P. R. Co. v. Hackett, 87 Md. 224, 39 A. 510; City Dairy Co. v. Scott, 129 Md. 548, 100 A. 295, and Eisenstein v. Annapolis, 177 Md. 222, 9 A. 2d. 224. Applying these principles to the case before us, it appears that the State Roads Commission has the right to have surface water from its roadbed run according to its natural flow across the land of the appellees.  This is without regard to the[***10] question of a prescriptive right in an easement across appellees' property.  Not all of the elements necessary to create an easement by prescription are present.  In view of the covered condition of the ditch, it seems to be doubtful whether the use of the property was notorious for the required period, and in view of the placing [**633] of the pipe in the ditch by Gross, either with or without the consent of the State Roads Commission, it would seem that the use was permissive rather than hostile.

    The prayer of the bill, as we have stated, is that the appellees cease from obstructing the flow in the pipe and ditch and restore the pipe to its original condition.  This would, according to the testimony, result in re-creating the hazard to health condemned by the county health officer, and is more than the appellants have the right to demand.  They have impliedly consented to the filling of the open ditch, and the construction of part of a house over it. They are, therefore, no longer entitled to have the ditch open.  It would be an anomalous situation for a court to require a land owner to open a way to lead water into his cellar. The State Roads Commission must be held to have [***11]consented to the pipe method for diverting their surface water. Under these circumstances it becomes a question, what is reasonable to require of the appellees in order to have the surface water run through [*659] their property.  Any injunction granted must not be broader than the issue raised by the pleadings (Chesapeake, Etc., R. Co. v. Richfield Oil Corp., 180 Md. 192, 23 A. 2d 677), but this does not prevent the granting of a lesser remedy than that asked.

   The adoption of a hard and fast rule under the strict common law theory would permit the lower land owner to shut off the natural flow of water on his land, and cause great hardship to the owner of the upper land, and possibly to the owners of contiguous lands on whom the overflow would spread.  This court has not adopted the common law rule.  As we have shown, we have held with the civil law rule States that the upper land owner has a right to have his surface water flow in its natural course over the lands of the lower owner.  Yet a strict application of this rule also might result in very great hardship on the lower land owner, who would thereby be prevented from improving his land or using it as he would otherwise[***12] have a right to use it.  In cases where such hardship would necessarily ensue to one or the other of the owners, courts have sometimes adopted what may be called a "reasonableness of use" rule.  That rule is based upon the facts in a particular case and is peculiarly appropriate for an equity court to follow.  It creates no precedent, does not change the adopted rule of law, but provides mitigation for the harsh application of either of the rules, which might be applied in the particular State in which the case arises. This rule was discussed and applied in a carefully considered opinion in the Supreme Court of New Hampshire, delivered by Judge Walker, in the case of City of Franklin v. Durgee, 71 N. H. 186, 51 A. 911, 913, 58 L. R. A. 112. The court there said: "The question presented in such cases is not so much one of law as of fact.  It would doubtless be convenient if it could always be answered by citing a stereotyped definition of legal right.  But, as the situation of all adjoining owners of land is not the same, and as the circumstances attending the use of land in view of [*660] the flow of surface water are infinitely various, the failure to attain substantial[***13] justice by the enforcement in all cases of a rule of law which does not recognize these important differences is not surprising.  The result is that the question of the reasonableness of the use in a given case must be determined as a question of fact under all the attendant circumstances." See also Harvard Law Review, Vol. LVI, pages 582-584.

   The case before us presents a state of facts in which the rule of reasonablness of use is applicable.  The obvious and common sense method out of the difficulty is for the parties to reach an agreement by which the pipe line may be relocated across the appellees' land in such a way as not to interfere with their cellar, and at the same time afford escape for the surface water from the appellants' road.  Such an agreement, however, must be made by the parties and not by the court.  Since it has not been made, we have to take the case made by the record, and determine what is fair and reasonable to be done in view of the circumstances and the rights of the parties.

   It seems to us that the appellees should not be required to reopen the pipe line unless the appellants put it in repair and keep it so.  While the appellants are entitled to drain[***14] their waste water through the appellees' land, such a right does not give them the further right of compelling the appellees to maintain the drain at their own expense, in view of the fact that they acquiesced in the filling of the ditch, and the construction of the house [**634] over it.  We believe the substantial ends of justice will be served if the appellees are required to permit the appellants to go on their property for the purpose of repairing and keeping in repair the pipe and ditch in such a way that it will not endanger the health of the occupants of the appellees' dwelling, and that only when such repairs have been made, will the appellants be entitled to have the drain reopened and to have their surface water flow through it.

   [*661] As a result of these views, the decree will be reversed and the case will be remanded in order that a decree may be passed in accordance herewith.  As both sides have stood stubbornly on their supposed rights, and have seemed unwilling to adjust their differences, it seems fair that appellees should pay only their own costs.

   Decree reversed, case remanded, appellees to pay their own costs. 

JOHN L. NICOLS, Etc., Exceptant v. ESTATE OF LUCY RIELYNICOLS, Deceased; SAME v. SAME 
Nos. 27, 28, January Term, 1943
 
Court of Appeals of Maryland
 
181 Md. 582; 31 A.2d 326; 1943 Md. LEXIS 154

 April  7, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeals from the Orphans' Court of  Anne Arundel  County; Carr, Owens, and Elliott, JJ.

DISPOSITION: Order reversed and case remanded, with costs.

CORE TERMS:  power of appointment, orphans', donee, executor, donor, deed of trust, trust estate, appointed, codicil, designated, testatrix, executes, confer jurisdiction, power reserved, person holding, trust fund, appointment, appointing, administer, inventory, lifetime, reserved, dollars, legacies, cease

COUNSEL: LeRoy E. Gerding for the appellant in both cases.

   George E. Rullman for the appellee in both cases.

JUDGES: Sloan, Delaplaine, Collins, Marbury, Grason, and Melvin, JJ.  Sloan, C. J., delivered the opinion of the Court.

OPINIONBY: SLOAN

OPINION: [*583] [**326] This appeal is from an order of the Orphans' Court of Anne Arundel County, overruling exceptions to an executors' account.

   Lucy Riely Nicols died May 22, 1939, leaving a will dated October 15, 1936, whereby she, at considerable length and [**327] with much detail bequeathed her estate, which amounted to about $10,000 to her children and grandchildren. She said the will was in the exercise of a power of appointment which she had reserved in a deed of trust dated June 1, 1928, whereby she transferred and delivered to W. Clinton Riely, John L. Nicols and Lambert M. Riely, the sum of $20,000 to pay her the income therefrom, with such parts of the principal as the trustees, or a majority of them, should think necessary for her care, maintenance and support.

   The power of appointment stated in the deed of trust, and repeated in the will reads: "Upon the death[***3] of the said Lucy Riely Nicols the trust hereby created shall cease and the principal thereof then remaining together with all income thereon accrued, shall be by the Trustees paid over, and delivered free and clear of any further trust unto the person or persons whom by her last will she may appoint."

   By the will she appointed Lambert Mason Riely, her brother, executor, and in case he should have predeceased her, or declined to act, appointed John Lloyd Nicols and George W. Haley, as executors, the last named now in the armed forces of his country.  On January 29, 1938, she made a codicil to the will appointing Lambert Mason Riely and John Lloyd Nicols.  On April 28, 1939, she made another codicil, in which she said, "as long as my Brother Courtney Riely lives that my estate shall contribute the monthly allowance of fifteen dollars ($15) towards his support." This codicil was witnessed by one [*584] person, but no question has arisen or been decided regarding its validity, Code, 1939, Art. 93, Sec. 336, so that we cannot consider it, nor is it necessary here.  Code, 1939, Art. 5, Sec. 10.  W. Clinton Riely had resigned as trustee, under the deed of trust, and on June 8, 1936, [***4] the donor accepted it, and the same day appointed in his stead Lucy N. Hall of Nyack, New York, who, the next day, accepted the trust.

   What brought this matter to a head was an order of the Orphans' Court, passed May 24, 1941, which declared "that the assets mentioned in the deed of trust * * * are a part of the estate covered by the will; and further, that the power of appointment which the testatrix retained was exercised in her will, subject, however, to the codicil thereto wherein it was provided that this estate should pay to Courtney Riely the sum of Fifteen Dollars per month for and during the term of his natural life," and that the trustees and co-executors were entitled to their expenses of traveling, attorney's fees and other expenses out of this estate.  An account was so stated, and it showed an inventory of personal property of $145, and total credits of $1,018.68, leaving an overpayment of $865.68.  There was an accompanying statement of the corpus of the trust fund and accumulations of income amounting to $10,417.79 and distribution in accordance with the will, against which was charged the deficit of $865.68, and the retention of $6,442.33 to be held for the[***5] payment of the annuity of $15 a month to Courtney Riely, which the Orphans' Court by the order of September 24, 1942, so ordered.

   The only question here is, whether the Orphans' Court had jurisdiction over the trust estate created by Mrs. Nicols in 1928.  If it did not, then the executors were only required to account for the inventory of $145 against which there would be credits of $1,010.68, and nothing against the trust fund.

   The Orphans' Court is a court of limited jurisdiction and "shall not, under pretext of incidental power or constructive [*585] authority, exercise any jurisdiction not expressly conferred by law." Code, 1939, Art. 93, Sec. 272. The orphans' courts cannot enforce or administer a trust; equity alone has this power.  Blumenthal v. Moitz, 76 Md. 564, 566, 25 A. 686; Taylor v. Bruscup, 27 Md. 219; State, to Use of Gable v. Cheston, 51 Md. 352, 380; Redwood v. Howison, 129 Md. 577, 592, 99 A. 863; In re Hagerstown Trust Co., Ex'r of Mealey, 119 Md. 224, 232, 86 A. 982; Pope v. Safe Deposit & Trust Co., 163 Md. 239, 246, 161 A. 404.

   The exercise of the power of appointment by a will of a trust estate created in her lifetime by a[***6] testatrix under a power of appointment does not take the estate out of equity, or confer jurisdiction on the Orphans' Court.  The will is the direction by the donor or the donee, as the case may be, to the trustees as to the disposition by the trustees of the trust estate even though the deed of trust states that the "trust hereby created shall cease." with the death of the donor. The responsibility of the trustees does not end until they shall have discharged the trust [**328] and settled with the donees, who in this case were designated by the will, which was the exercise of the power of appointment by the will.  Harlan v. Gleason, 180 Md. 24, 22 A. 2d 579. As said by Mr. Miller, in his Construction of Wills, 728, Sec. 254: "When the person holding a power of appointment over property executes it by making the appointment by his will, the property does not pass through his estate, but passes directly to the persons designated by him.  Thus legacies appointed under a power do not pass through the executor of the donee, and do not depend upon the settlement of the donee's estate: the donee simply executes the power given by the donor by naming and appointing the persons[***7] who are to take the property." Venable, Real Property, 169; Harrison v. Denny, 113 Md. 509, 524, 77 A. 837; Prince de Bearn v. Winans, 111 Md. 434, 472, 74 A. 626; Safe Deposit & Trust Co. v. Gittings, 103 Md. 485, 497, 63 A. 1046. It can make no difference [*586]that Mrs. Nicols was both donor and donee of the trust; it was irrevocable, and the only power reserved was the power of appointment.

   From what we have said, it therefore follows that the only property of Lucy Riely Nicols to be administered in the Orphans' Court is one appraised at $145, and the order appealed from must be reversed and the case remanded for action in accordance with this opinion.

   Order reversed and case remanded, with costs. 

WILLIAM CLAUSS v. BOARD OF EDUCATION OF ANNE ARUNDEL COUNTY 
No. 21, January Term, 1943
 
Court of Appeals of Maryland
 
181 Md. 513; 30 A.2d 779; 1943 Md. LEXIS 147

 March  17, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decision reversed.  Judgment entered affirming the decision of the State Industrial Accident Commission.  Costs to be paid by the appellee.

CORE TERMS:  wage, workmen, Workmen's Compensation Act, county board, sentence, board of education, pupils, extra-hazardous, claimant, repair, Workmen's Compensation Law, guard, appoints, penal, consolidated, public education, public school, enlisted men, extrahazardous, re-enacted, affirming, municipal, repealed, supplied, session, teachers, militia, necessary result, question of law, unincorporated

COUNSEL: Preston A. Pairo, with whom were George B. Woelfel and J. Calvin Carney on the brief, for the appellant.

   Emanuel Klawans and Carlyle Barton, with whom was H. Warren Buckler, Jr., on the brief, for the appellee.

JUDGES: Sloan, Delaplaine, Collins, Marbury, and Grason, JJ.  Marbury, [***4]J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*515] [**780] The question in this case is whether an employee of the Board of Education of Anne Arundel County, engaged in extra-hazardous work for which he was paid a weekly salary of $30, is entitled to compensation under the Workmen's Compensation Law for accidental personal injury arising out of and in the course of his employment.  All of the issues involved were decided in his favor by the Accident Commission.  On appeal to the Circuit Court for Anne Arundel County, the case was heard before the court without a jury, and all the issues submitted as between the claimant and the Board of Education, were decided in favor of the claimant except one.  That issue was whether the Board of Education of Anne Arundel County was subject to the provisions of the Workmen's Compensation Law. To that issue the court below returned a negative answer.  The appeal here is by the claimant from that decision of the court.

   The Workmen's Compensation Law in Maryland was first enacted by Chapter 800 of the Acts of 1914.  Section 34 of that Act read as follows: "Whenever the State, County, City or any municipality shall engage[***5] in any extra-hazardous work within the meaning of this Act in which workmen are employed for wages, this Act shall be applicable thereto.  Whenever and so long as by State law, City Charter or Municipal Ordinance, provision equal or better than that given under the terms of this Act is made for municipal employes injured in the course of employment, such employes shall not be entitled to [*516]the benefits of this Act." By Chapter 303 of the Acts of 1922 this section, which had become Section 35 of Article 101 of the Annotated Code, 1924, was amended to insert in the first sentence after the words "within the meaning of this Act" the words "whether for pecuniary gain or otherwise." It was again amended in 1924 by Chapter 332, which inserted a sentence reading as follows: "In time of peace and while engaged in military service all officers and enlisted men of the organized militia of the State of Maryland, shall be deemed workmen of the State for wages within the meaning of the preceding sentence." The italics are supplied. In 1927, by Chapter 83, the provision concerning the militia was taken out, and the section left as it had been made by the Act of 1922, Chapter 303. [***6] However, by Chapter 395 of the same session of 1927, the section was again repealed and re-enacted by inserting a sentence between the first and last sentences, reading as follows: "The officers of the Maryland State Police Force and all Guards employed by any of the penal institutions of this State shall be deemed workmen for wages within the meaning of this Section." Italics supplied. In 1937, by Chapter 288, the officers of the county police of Prince George's County were declared to be "workmen for wages," within the meaning of the Workmen's Compensation Act, and by Chapter 315 of the same session it was enacted that the police of the Town of Laurel should be considered "workmen for wages" under the provisions of Article 101.  In 1939, Chapter 317, Section 35, was repealed and re-enacted and the second sentence was amended to include the officers of the Montgomery County police, as well as those of the Maryland State police force and the guards in the penal institutions.  All of these were declared to be "workmen for wages." A further amendment made by Chapter 652 of the same session put back the officers and enlisted men of the militia in time of peace, left out the Montgomery[***7] County police, and put in the officers of the State police and the guards at [*517]the penal institutions.  All of these were declared to be "workmen for wages." Article 101 of the Annotated Code of 1939 codified the various Acts in Section 46 and included among those especially enumerated the officers and men of the militia, the officers and men of the State police, and the Montgomery County and Prince George's County police, the police of the Town of Laurel and all guards employed by any of the penal institutions of the State.  All of these were declared to be [**781] "workmen for wages" within the meaning of the Article.

   By Chapter 433 of the Acts of 1941, Section 46 was again repealed and re-enacted, and as finally drawn included as "workmen for wages" not only those specifically mentioned in the Code section, but also "the regular members of the police force, the paid firemen, the Engineers and Linemen of the Electric Light Plant of Frederick City."

   These amendments were probably made to meet an early decision of this court that a park policeman employed by the Board of Park Commissioners of Baltimore City was not a "workman employed for wages." Harris v. Baltimore[***8] , 151 Md. 11, 25, 133 A. 888. After the passage of the amendment of 1922, including within the scope of the Act officers and enlisted men of the organized militia, this court said that a member of the National Guard was a workman for wages under that amendment, although he did not receive any wages, and we carried out what was held to be the intention of the amendment by working out a theoretical wage for him.  Merrill v. State Military Department, 152 Md. 474, 136 A. 897. The point is made by the appellee that inasmuch as by the several amendments employees of certain specifically named agencies are covered by the Act, an intention is indicated to exclude the employees of all other State, County and Municipal agencies.  This contention is based upon the maxim expressio unius est exclusio alterius.  It can have no application here because the purpose of the amendments was to designate as "workmen for [*518] wages" certain employees who would not otherwise be so considered.  The amendments were concerned with the nature of the employment, and not with the agencies by whom the included classes were employed.

   The right of the claimant to compensation must depend upon the[***9] decision of the question whether his employment by the Board of Education of Anne Arundel County is an employment by the State or by the county.  Clearly, he is not employed by any city or municipality.  That leads to an examination of Article 77 of the Code, which is that providing for a system of public education in the State.  This Article was passed in substantially its present form by Chapter 506 of the Acts of 1916.  There have, of course, been amendments added since.  The Act of 1916 was passed as a result of the report of a commission authorized by Chapter 844 of the Acts of 1914.  This commission requested the General Education Board to undertake a survey of public education in this State. This was done, and a most thorough and exhaustive report was filed, prepared under the direction of Abraham Flexner and Dr. Frank P. Backman.  This report was submitted to the Governor, transmitted by him to the Legislature of 1916, and as a result, the present system of education was adopted.

   Article 77, as thus enacted, provides for a State Board of Education which is to be at the head of a State Department of Education and to which is entrusted educational matters affecting the State[***10] and the general care and supervision of public education. Educational matters affecting counties are under the control of County Boards of Education.  The Governor appoints the State Board, and also appoints the County Board. The State Board appoints the State Superintendent of Schools, and the County Board appoints the County Superintendent of Schools, who is the executive officer of the County Board and its secretary and treasurer.  The money for the support of the schools in each county is obtained chiefly from the tax levy of the county.  Additional [*519]amounts may be obtained from State funds.  General control of schools, teachers and the construction of school buildings is placed in the County Boards, subject, however, in various ways to supervision by the State authorities.  The whole scheme of the Act is to provide a uniform system of public schools throughout the State which shall provide as nearly as possible the same kind and type of education in each of the counties of the State.

   The appellee claims that it is neither a State nor a county, but an independent corporation created by the Legislature, and, therefore, it does not come within the provisions of Section[***11] 46.  Neither the State nor the county, however, can act directly.  Each must act through agencies, and whether such agencies are individuals or unincorporated commissions or corporate bodies, if they are acting within the power and authority given them, they are agencies of the State or county, as the case may be.  The State Roads Commission is an unincorporated agency of the State.  It has been held to be a quasi corporation.  Postal Telegraph Co. v. State Roads [**782] Commission, 127 Md. 243, 96 A. 439; Code, 1939, Art. 89B, Sec. 2.  It has been held that it cannot be sued in a tort action.  State v. Rich, 126 Md. 643, 95 A. 956. Yet, in the case of State Roads Commission v. Reynolds, 164 Md. 539, 165 A. 475, an employee of the State Roads Commission was awarded compensation for an accidental injury arising out of the course of his employment.  It was not contended by the Commission nor was it considered by this court, except inferentially, that the claimant was not an employee of the State.  He must have been held one in order to bring him within the provisions of Section 46 of Article 101, which is the only section which would permit him to have compensation. [***12] In a very recent case, an employee of the Upper Potomac River Commission, a corporation created under a special Act of the Legislature, was denied the right to sue the Commission because the Commission, although a corporation, was an agency of the State, and the employee, [*520] therefore, had his remedy under Section 46 of the Workmen's Compensation Law. Lease v. Upper Potomac River Commission, 179 Md. 543, 20 A. 2d 498.

   A county is not a corporate body, it is a political subdivision of a State. Many of its functions, including the very important one of taxation, are entrusted to the County Commissioners.  The County Commissioners have some control over school funds, because they can reduce the budget submitted by the County Board of Education, but their powers in this respect are strictly limited by statute.  Board of Education v. County Commissioners, 131 Md. 658, 102 A. 1007. Other functions of the county are given to other agencies and boards.  An elected Tax Collector or Treasurer generally collects taxes.  In many counties there is a Liquor Board which has charge of licenses for the sale of intoxicating liquors.  Some counties have special boards for the control [***13]of the county police.  Some have highway commissions or highway engineers.  In others there are sanitary commissions whose duties lie wholly within the county.  All of these are agencies of the county for one purpose or another.  An employee of any one of them may be an employee of the county.

   It is not necessary for the purposes of the present case to determine whether in all cases the Board of Education of Anne Arundel County is an agency of that county.  It may, for some purposes, be an agency of the State.  This we do not determine.  It is clear, however, that part of its duties are to repair school buildings (Article 77, Section 45), and this was the work for which the appellant was employed, and on which he was engaged when injured.  In having this work done, the Board of Education was acting as the agent of Anne Arundel County.  The title to the county school buildings is in this Board (Section 41), and the funds for the upkeep of such buildings are included in those annually requested from the County Commissioners (Section 56).

   [*521] The appellee has cited cases from other jurisdictions to the effect that school districts, drainage districts, agricultural colleges and [***14]other types of public bodies, are not included in the words "State" or "County" or "City" as these words are employed in their Workmen's Compensation Acts.  Such cases are, among others: Ponca City Board of Education v. Beasely, 157 Okla. 262, 11 P. 2d 466; Rusk District v. Industrial Commission, 186 Wis. 232, 202 N. W. 204; Alger v. Michigan Agricultural College, 181 Mich. 559, 148 N. W. 341; Smith v. State Highway Commission, 131 Va. 571, 109 S. E. 312. An examination of these cases, however, shows that each of them is based upon the different laws creating the several agencies considered.  They are neither authoritative nor persuasive in the case before us.  Insofar as they affect the questions raised we are unable to agree with them.  There is also authority to the contrary.  (71 C. J., Sec. 153; Dourrieau v. Board of Commissioners, La. App., 158 So. 581; Bailey v. School District, 204 App. Div. 125, 198 N. Y. S. 247; Larson v. Independent School District, 53 Idaho 49, 22 P. 2d 299; among others.) But we do not rely upon interpretations by other States of their laws.  We base our conclusions upon what we consider the necessary result of a proper[***15] interpretation of the Maryland statutes.

   Appellee contends, as additional basis for holding Section 46 was not intended to apply to it, that it has no power to make equal or better provision for its employees than is contained in the Workmen's Compensation Act. Its construction of the last sentence of Section 46 is that this sentence limits the application of the entire section to those who can comply with its provisions. In this connection, it may be noted that the wording of the [**783] sentence relied on makes it applicable to "municipal employees" only.  Unless these words are broadened by necessary implication, they refer to employees of cities or towns and not to those of the State or of the counties.  There is another reason, however, [*522] why the appellee's contention in this particular is erroneous.  The last sentence of Section 46 is a release from coverage of those employees for whom equal or better provision has been made.  It is not intended to release those for whom such provision cannot be made.  The last would be the necessary result of appellee's contention.

   The appellee raises a constitutional objection to a construction of Section 46 of Article[***16] 101 which requires it to use its funds to pay compensation or to pay premiums for compensation insurance.  This point is based upon Section 3 of Article VIII which provides: "The School Fund of the State shall be kept inviolate, and appropriated only to the purposes of education." This contention depends entirely upon what are considered purposes of education. The system in use now is very different from that in use at the time of the adoption of the Constitution.  Then, the children of the State were taught in one-room schools, heated by wood stoves which the pupils took turns in keeping supplied with fuel.  These pupils came, for the most part, from within walking distance of these schools.  With the passage of time, the necessity of teaching more subjects and of having specially trained teachers for such purposes has been recognized.  For these reasons, among others, schools have been consolidated, and teachers instruct in single subjects or confine their work to single grades or classes, instead of teaching all of the pupils in any community in all subjects and grades.  This has resulted in the building of large consolidated schools, and the transportation of pupils to these schools [***17]by buses furnished with county funds.  In two recent cases, this court has held that the expenditure of public funds to carry children to parochial schools under certain circumstances is an expenditure for purposes of education within the Constitution.  Board of Education v. Wheat, 174 Md. 314, 323, 199 A. 628; Adams v. St. Mary's County, 180 Md. 550, 26 A. 2d 377. These large consolidated schools are necessarily heated by central heating systems which require daily care and [*523] constant inspection to keep them in working order.  The Boards of Education having control over them must provide men to do this work, and that is the particular work which the appellant in this case was doing when he was injured.  It is not questioned that he was engaged in extra-hazardous employment, and, therefore, the cases referred to in the briefs and argument which hold that certain city employees were not engaged in extrahazardous work have no application.  These cases involve a nurse in a city hospital (Baltimore v. Smith, 168 Md. 458, 177 A. 903); an orderly in a city hospital (Baltimore v. Trunk, 172 Md. 35, 190 A. 756); a janitress in a city public school (Baltimore v. [***18]  Schwind, 175 Md. 60, 61, 199 A. 853); and a janitor at a city airport (Mattes v. Baltimore, 180 Md. 579, 26 A. 2d 390).

   The meaning of the Constitution is not restricted to the meaning of particular words employed as they were understood at the time of its adoption. It is not to be supposed that the framers of the Constitution of 1867 did not expect the system of education then in force to be changed or improved.  They could not, of course, foresee what changes were to come, so they wisely did not attempt to define what they meant by education.  They left that to be interpreted in the light of conditions at any given time when such a question should arise.  Education in 1867, as we have shown, did not include the employment of repair men for heating systems in public schools.  Education in 1943 does include such employment, because that is the only way the kind of schools now found necessary for the education of the children of the State can be made usable.

   We have only to go one step farther.  The Legislature has said that when a county employs a person in extrahazardous work, that person must be insured in one of the ways provided by the Workmen's Compensation Act. It follows [***19]that the cost of such insurance or the payment of compensation, if the self-insuring method is adopted, is a part of the necessary expense of any [*524]such work engaged in by any county.  Such work is a part of modern education.  Such use of public school funds is for purposes of education, as now defined, and is not within the constitutional prohibition.

   The same reasoning applies to a further contention based upon a decision [**784]of this court, in which it was determined that in the absence of any authority to so expend their funds, school boards had no money to use in paying damages to persons injured, and, therefore, they could not be sued in personal actions for damages.  In that case, a school child running on a school lot was knocked down and mortally injured by a wire which it was alleged the school authorities permitted to be negligently strung between trees at a dangerous height.  Weddle v. School Commissioners, 94 Md. 334, 51 A. 289. The answer to this contention has already been made.  Section 56 of Article 77, which provides for the preparation and presentation of an itemized and detailed school budget by the County Board of Education to the County Commissioners, [***20] states that such budgets shall contain among other things: "The amount of money needed for permanent improvements and repairs, and for current repairs, furniture for old buildings, maintenance and support of the schools during the succeeding school year." This includes the cost of labor to keep the buildings, including the heating systems in repair, the wages of such laborers and taking care of their compensation when injured.  While the Legislature has not provided any funds for paying damages recovered in negligence actions by pupils, it has provided by necessary implication, contained in Section 46 of Article 101, funds to take care of compensation of employees who come within the provisions of the Workmen's Compensation Act.

   We have discussed the questions raised in the briefs and arguments and considered by the court below in its opinion, because of the importance of the questions involved, not only to the parties, but to the several Boards of Education throughout the State.  In so doing, however, [*525] we do not mean to approve the method by which this case came to this court.

   In several recent cases of considerable importance, the records have not been so prepared as[***21] to bring the questions involved properly before us. We have, in most of these cases, passed upon these questions, but it is a dangerous practice and one which it is desirable to avoid in the future.  In the case before us, the appeal seems to be from the verdict of the court.  The appellant did not wait until the court had passed an order in accordance with that verdict, as is required by Article 101, Section 70, which states: "If the Court shall determine that the Commission has acted within its powers and has correctly construed the law and facts, the decision of the Commission shall be confirmed; otherwise it shall be reversed or modified." That question was considered by this court in the case of Federal Tin Co. v. Hoffman, 164 Md. 131, 165 A. 323, 325. In that case, the verdict included the statement: "The answer of the jury to the issue is 'yes' thereby reversing the ruling of the State Industrial Accident Commission." No judgment was entered on the verdict.  This court referred to the earlier case of Schiller v. B. & O. Railroad, 137 Md. 235, 112 A. 272, and said: "It is for the court and not the jury to affirm, reverse, or modify the ruling of the commission appealed[***22] from." In that case, it was assumed that the docket entry was made by order of court and was intended to embody its judgment.  This assumption was made in order to avoid sending the case back and causing unnecessary expense.  In the present case, the verdict on the issue appealed from was not really a verdict at all, because the issue was not one of fact.  It was a question of law, which, in a jury case, would have been passed on by the court by proper instructions.  In a non-jury case, such as this was, under Rule 9, Part III, 1941, of the General Rules of Practice and Procedure of this court, the court should have entered judgment and given reasons.  The reasons were given, but the judgment [*526] was not entered in proper form, although the answer of the court to the question we have considered must be considered as a determination of the question of law presented.  As we find this erroneous, we will enter a judgment affirming the action of the State Industrial Accident Commission.

   Decision reversed.  Judgment entered affirming the decision of the State Industrial Accident Commission.  Costs to be paid by the appellee. 

HAROLD KATSKI, et ux. v. CLAYTON N. TRIPLETT, et al. 
No. 33, January Term, 1943
 
Court of Appeals of Maryland
 
181 Md. 545; 30 A.2d 764; 1943 Md. LEXIS 150

 March  17, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Judgment reversed, and case remanded for further proceedings, with costs to the appellants.

CORE TERMS:  Speedy Judgment Act, declaration, plead, merchandise, demurrer, vouchers, cause of action, speedy, indebtedness, indebted, default, jurisdiction to enter, extension of time, summary judgment, sworn statement, certain amount, prima facie, practicable, rescinded, definite, complied, furnish

COUNSEL: Noah A. Hillman for the appellants.

   William J. McWilliams and Edwin H. Brownley, with whom was Karl F. Steinmann on the brief, for the appellee.

JUDGES: Sloan, Delaplaine, Collins, Marbury, and Grason, JJ.  Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*546] [**765] This suit was filed in the Circuit Court for Anne Arundel County on May 8, 1942, by Clayton N. Triplett, Alfred G. Triplett and Clayton N. Triplett, Jr., copartners trading as Baltimore Gas Light [***3]Company, against Harold J. Katski and Ellen N. Katski, his wife.  The plaintiffs, intending to bring the suit under the Speedy Judgment Act of Anne Arundel County, filed with their declaration a statement under affidavit claiming that the defendants were indebted to them in the sum of $696.06.  The statement, however, did not mention any items of merchandise alleged to have been sold to the defendants.

   It appears from the record that the defendants were required to plead within fifteen days after the return day, the third Monday in May.  But as the defendants filed a petition on May 25 for a bill of particulars, the court extended the time for filing pleas until fifteen days after compliance therewith.  On June 4 the plaintiffs filed a bill of particulars containing (1) an invoice showing items of merchandise sold to the defendants, (2) [*547] a statement of payments made by the defendants on account, and (3) a copy of an agreement wherein the defendants promised to be liable for merchandise purchased from the plaintiffs in any amount up to $1,000.  While the defendants did not plead within fifteen days thereafter, Mrs. Katski on June 24 filed a demurrer to the declaration[***4] and bill of particulars, and moved for an extension of time within which to plead. On June 29 the court extended the time for pleading until ten days after determination of the demurrer.

   On July 3 the plaintiffs alleged that the defendants had failed to plead within fifteen days after the filing of the bill of particulars, and moved that the court's order of June 29 granting additional time for pleading be rescinded, and that judgment be rendered against the defendants for want of plea verified by affidavit.  The court struck out the demurrer, rescinded the order of June 29, and entered judgment by default in favor of the plaintiffs for the sum of $696.06.

   The question on this appeal is whether the suit was brought in accordance with the Speedy Judgment Act. This statute, enacted by the Legislature of Maryland in 1935, provides that in any action on contract the plaintiff shall be entitled to a judgment at any time after fifteen days from the return day, unless the defendant shall plead as required by the Act, provided that the plaintiff shall file with his declaration at the time of bringing the action (1) an affidavit stating the true amount the defendant is indebted to him, [***5]and (2) the bond, bill of exchange, promissory note or other writing or account by which the defendant is so indebted. The Act also requires that a copy of the declaration, affidavit, notice to comply with the provisions of the Act, and cause of action shall be served upon each defendant at the time of the service of summons.  Acts of 1935, Chap. 169; Code P. L. L., 1930, Art. 2, Secs. 189A, 189B.  In 1914 the Legislature enacted a general rule providing that in all jurisdictions were provision has been or shall be [*548] made for the obtention of speedy judgments, when the cause of action filed with the declaration shall set forth the plaintiff's claim with the particularity required for a bill of particulars, the cause of action shall be considered as one of the pleadings in this case, and the plaintiff shall be restricted in his evidence to proof of the items so set out.  Acts of 1914, Chap. 378; Code, Art. 75, Sec. 28 (107).

   The object of the Speedy Judgment Act is to provide for the speedy collection of debts by requiring from both plaintiff and defendant a definite sworn statement of both the claim and the defense, if any, so that the parties might know exactly wherein[***6] they differ and shape their action accordingly. Adler v. Crook, 68 Md. 494, 13 A. 153. The evident purpose of the Legislature in passing the Act is to narrow the questions in issue between the parties in any suit upon contract as far as practicable. In this case the statement which the plaintiffs filed with the declaration did not set out any items of merchandise alleged to have been sold to the defendants, and made no mention of the agreement signed by the defendants.  It is therefore perfectly clear that the statement was not an "account" within the meaning of the Act.  It is indispensably necessary for the plaintiff to file any vouchers [**766] of his claim at the time he institutes his suit.  The vouchers must show on their face a prima facie of the defendant's indebtedness to the plaintiff for a certain amount or an amount which they furnish the means of making certain. It is obvious that it would have been impossible for the defendants in this case to state in their defense what part of the claim was admitted and what part of it was denied, because the plaintiffs did not set out the particulars of the indebtedness in the original statement.  Thillman v. Shadrick[***7] , 69 Md. 528, 16 A. 138; McDonald v. King, 125 Md. 589, 593, 93 A. 979; 2 Poe, Pleading and Practice, 5th Ed., Sec. 413.  It is well settled that when the plaintiff fails to comply with the Speedy Judgment Act, the court has no jurisdiction [*549]to enter summary judgment under it.  Since the special proceeding is a statutory one, it is only when the provisions of the Act are strictly complied with that the court has authority to enter a judgment by default in accordance with its procedure.  McDonald v. King, 125 Md. 589, 93 A. 979; Roth v. Baltimore Trust Co., 159 Md. 580, 583, 152 A. 227. The defendants in this case, after being summoned, seasonably made objection to the statement on account of its insufficiency.  Consequently, when the plaintiffs moved for a judgment by default on the ground that the defendants had failed to plead within the time allowed, they were not entitled to judgment either upon the statement filed with the declaration or upon the bill of particulars, for the bill of particulars was not filed at the time of the institution of the suit as required by the Act.

   The record shows that the court, upon Mrs. Katski's motion, extended the time [***8] for pleading until ten days after the determination of her demurrer. In view of the fact that the original statement did not meet the requirements of the Act, we can find no reason to justify the court's action in striking out the demurrer and rescinding the order granting the extension of time for pleading. As the case should properly take its regular course as an ordinary action at law before the court sitting in the exercise of its common-law jurisdiction, we will reverse the judgment and remand the case in order to enable the defendants to have it heard upon its merits.

   Judgment reversed, and case remanded for further proceedings, with costs to the appellants. 

CARROLL COX v. BOARD OF COUNTY COMMISSIONERS OF ANNE ARUNDELCOUNTY 
No. 55, January Term, 1943
 
Court of Appeals of Maryland
 
181 Md. 428; 31 A.2d 179; 1943 Md. LEXIS 136

 March  16, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Judgment affirmed, with costs.

CORE TERMS:  highway, dog, duty, municipality, street, police power, municipal, ordinance, governmental function, public highway, non-use, public authorities, damage done, pound, reasonably safe condition, liable to suit, public safety, declaration, livestock, immunity, nuisance, repair, bitten, infant, sovereign power, public health, point of fact, expressedly, regulating, regulations

COUNSEL: James Morfit Mullen for the appellant.

   Benjamin Michaelson for the appellees.

JUDGES: Sloan, C. J., Delaplaine, Collins, Marbury, Grason, and Adams, JJ. Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*430] [**181] This is a suit against the County Commissioners of Anne Arundel County for damages resulting to the infant plaintiff from being attacked and bitten by a ferocious pack of dogs running at large in the third election district of the county.  The dogs were owned by a resident of the county.  The owner had a kennel license under the local law, by the terms of which the dogs were permitted to be at large only under close supervision at certain times.  The attack is alleged to have occurred while the plaintiff was lawfully upon a highway in the neighborhood of the residence of the owner.  A general demurrer was sustained[***4] below.  The plaintiff declined to amend, and judgment was extended in favor of the defendant for costs.  From this judgment, the appeal comes here.

   The first count of the declaration is based upon the breach of special duties alleged to have been placed upon the appellee by the local dog law enacted by Chapter 255 of the Acts of 1937 and amended in some particulars by Chapter 283 of the Acts of 1941.  The second count is based upon the negligence of the appellee in its failure to abate the nuisance caused by this pack of dogs running at large.  It is claimed in this count that such duty is placed upon the appellee under the provisions of the general and local laws.  If there is such duty, it must be found in the statutes.  The liability of the appellee [*431]under both counts, therefore, is narrowed to what was intended by the Anne Arundel County dog law.

   Governments are immune from suit by individual citizens, unless the right is expressly given.  The reason for this immunity is stated by Mr. Justice Holmes in the case of Kawananakoa v. Polyblank, 205 U.S. 349, 51 L. Ed. 834: "Some doubts have been expressed as to the source of the immunity of a sovereign power from[***5] suit without its own permission, but the answer has been public property since before the days of Hobbes.  Leviathan, Chap. 26, 2.  A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." When the State gives a city or county part of its police power to exercise, the city or county to that extent is the State.

   It is difficult to find a good reason for holding that a municipality (using the word in its broad sense) is not exercising the police power for the safety of the public when it is maintaining public highways. However, the rule in this State and in other jurisdictions is that, in such case, the municipality is acting in its corporate capacity, and is liable to suit for its negligence.  In discussing this question this court in the case of Mayor and City Council of Baltimore v. State, 173 Md. 267, 273, 195 A. 571, 574, said: "But the two principles, one that a municipal corporation is not liable in a civil action for any default or neglect in the performance of a purely governmental function, and [***6] the exception, that it is liable for failure to keep the public highways under its management and control in a reasonably safe condition, are too firmly embedded in our law to be disturbed now."

   It is equally well settled that the highway for which the municipality becomes liable on account of its failure to keep it in repair must be one that has been created or accepted by the public authorities, and that the liability does not extend to a highway not accepted, but which [*432] has merely been dedicated to public use by a private owner, or one which such owner has permitted the public to use.  It must actually have been accepted by the public authorities either expressedly or impliedly.  This court in the case of Kennedy v. Cumberland, 65 Md. 514, 9 A. 234, 57 Am. Rep. 346, adopted the statement of the law on that subject in 2 Dillon, Municipal Corporations, Sec. 642, which is as follows: "As against the [**182] proprietor, a dedication of land for streets and highway may be complete without any act or acceptance on the part of the public; but, in order to charge the muninipality or local district with the duty to repair, or to make it liable for injuries for[***7] suffering the street or highway to be or remain defective, there must be an acceptance of the dedication, and this acceptance must be by the proper or authorized local public authorities.  It may be express, and appear of record, or it may be implied from repairs made and ordered, or knowingly paid for, by the authority which has the legal power to adopt the street or highway, or from long user by the public."

   This question becomes important in view of the allegation in both counts of the declaration that the attack on the appellant occurred on a highway and the absence of the accompanying adjective "public." It may be presumed that the appellant has stated his case as strongly as he can.  In view of the absence of the word "public," it must be assumed that the highway where the attack occurred was not one which had been created or accepted either expressedly or impliedly by the appellee.  Statements to that effect were made at the argument of the case by counsel of the appellee.  While these were not admitted by counsel for the appellant, the latter did state that he was unable to say that he could prove the attack occurred on a public highway. In the absence of a definite admission[***8] we must look to the record.  We do not find in it any statement that this attack took place on a public highway of Anne Arundel County.  We, therefore, consider it as if it did not so take place, but [*433]occurred on a road which it is not alleged the appellee has any duty to keep free of obstruction.

   A number of cases cited to us by the appellant furnish no precedent for this case, because they refer to negligence with respect to a public highway. Such cases are Mayor, Etc., of Baltimore v. Marriott, 9 Md. 160, 66 Am. Dec. 326; Anne Arundel County Com'rs v. Ducett, 20 Md. 468, Am. Dec. 557; Cochrane v. Frostburg, 81 Md. 54, 31 A. 703; Hagerstown v. Crowl, 128 Md. 556, 97 A. 544; Taylor v. Cumberland, 64 Md. 68, 20 A. 1027; Hagerstown v. Klotz, 93 Md. 437, 49 A. 836; Havre de Grace v. Fletcher, 112 Md. 562, 77 A. 114; and Mayor and City Council of Baltimore v. Eagers, 167 Md. 128, 173 A. 56.

   The case then turns upon the question whether the statute imposed upon the appellee duties which are governmental by nature or whether its duties are those known as corporate or proprietary.  If the appellee is exercising a governmental function, [***9] it is not liable.  If it is acting under corporate or proprietary powers, it may under some conditions be held responsible.  The distinction is, at times, illusory in practice, and not altogether logical in all cases.  McQuillen on Municipal Corporations, 2nd Ed., Vol. 6, pars. 2795-2798.  There is a modern tendency to broaden the liability.  In this State, however, the distinction has been adhered to too long for it now to be judicially altered.  That can be done only by statute by which it may be abolished altogether, or by which some method of compensation may be provided. The rule has already been relaxed as to employees.  Code, 1939, Art. 101, Sec. 46.

   County commissioners are outgrowths of the old levy courts originally established by the Act of 1794, Chap. 53.  These courts were composed of the justices of the peace of the several counties.  Their duties were to meet and to adjust the ordinary and necessary expenses of their counties, and to impose an assessment or rate on property to defray county charges.  During the course [*434]of the succeeding fifty years the name "County Commissioners" came into existence.  It was first recognized in the underlying law of[***10] the State in the Constitution of 1851, Art. 7, Sec. 8.  In that Constitution it was provided that the commissioners should exercise only such powers and duties as the Legislature should from time to time prescribe.  When the present Constitution of 1867 was adopted, Article VII, Section I, provided that the power and duties of county commissioners should be such "as now or may be hereafter prescribed by law." Until the Constitution of 1867, county commissioners were simply administrative officers in charge of county finances, and taking care of the public roads.  Board of Commissioners of Public Schools v. Allegany County Commissioners, 20 Md. 449. After the Constitution of 1867 these powers could be broadened by legislative authority.  Talbot County Com'rs v. Queen Anne's County Com'rs, 50 Md. 245; Prince George's County Com'rs v. Mitchell, 97 Md. 330, 55 A. 673.

   In the case of Gordon v. Montgomery County, 164 Md. 210, 164 A. 676, an Act was held valid authorizing county [**183] commissioners to pass rules, regulations and ordinances, licensing and regulating graveyards in the exercise of the police power. It is clear now, therefore, that police power with respect [***11]to the public health or the public safety can be validly imposed on county commissioners by the Legislature.  When that is done it follows that such commissioners are, to the extent of such grant, invested with the sovereign power of the State.  Acting under such power, they act in a governmental capacity under the decisions.

   There are numerous cases in this court in which it has been decided that the county or the city is acting in a governmental capacity and, therefore, is not liable to suit for damages.  Such cases are those of claims for damages suffered as a result of a revocation of a permit authorizing the carrying on of the public business of removing refuse (Boehm v. Baltimore, 61 Md. 259), [*435] from failure to enforce an ordinance forbidding the discharge of firearms within the city (Wynkoop v. Hagerstown, 159 Md. 194, 150 A. 447), from failure to warn the public of the dangerous character of a stream by reason of which a boy was drowned (Mayor and City Council of Baltimore v. State, Use of Ahrens, 168 Md. 619, 179 A. 169), from failure to prevent a child from drowning in a public swimming pool (Mayor and City Council of Baltimore v. State, to Use of [***12] Blueford, 173 Md. 267, 195 A. 571), from injuries incurred by falling in the county court house (County Commissioners v. Love, 173 Md. 429, 196 A. 122).

   The appellant claims that these and similar cases are not applicable.  His theory is that this case, whether it occurred on a public highway or a private road, is of the type of two cases, one in this court and one in the United States Circuit Court of Appeals for the Fourth Circuit, in both of which a public body was held liable.  In one of these the town of Havre de Grace was sued because in the course of building a yacht basin, it had the dredged material put in shallow water where it escaped and destroyed the shore line of the plaintiff's property.  This court, in that case, said that in doing this work the municipal corporation had negligently inflicted a wrong for which it could not claim governmental immunity. Mayor and City Council of Havre de Grace v. Maxa, 177 Md. 168, 9 A. 2d 235. In so deciding, the court followed the earlier case of Mayor, Etc., of City of Baltimore v. Merryman, 86 Md. 584, 39 A. 98, and the later case of Livzey v. Bel Air, 174 Md. 568, 199 A. 838, as well as some other nuisance cases[***13] cited in the opinion.  All of them related to work which public authorities were doing, and which was done negligently. They bear no resemblance to the case before us.  The principles underlying these decisions are fully reviewed in the opinion of Chief Judge Boyd in the case of Taylor v. Baltimore, 130 Md. 133, 99 A. 900.

   [*436] The other case relied on by the appellant is an opinion by District Judge Waddill sitting in the United States Circuit Court of Appeals for the Fourth Circuit.  In that case he held that the City of Baltimore was liable for not properly supervising the construction of a bulkhead, whereby certain piers were left concealed in the water, and boys going over them in a launch were drowned.  The court held that under the Maryland law of nuisance, the city was liable, but in support of its opinion it cited the Maryland highway cases.  State, to Use of Pryor v. Miller, 194 F. 775. In this same case when heard below, in the District Court of the United States for the District of Maryland, Judge John C. Rose, who was a distinguished Maryland lawyer before he became a federal judge, reviewed the Maryland cases in which it was held that municipalities and[***14] counties were liable for damages occurring on the highways and said: "The language in which the principle is stated, it is true, is broad enough to render the city liable for things other than those which affect the use of its streets; but I do not find in any of the authorities cited, or with which I am familiar, that in point of fact this liability for the simple non-use of powers given to it has in point of fact ever been extended beyond the class of cases above mentioned." State, to Use of Pryor v. Miller, D. C., 180 F. 796, 809. Neither of these decisions of the federal courts, construing Maryland law, is authoritative here, but the opinion of Judge Rose more correctly stated the substance of our decisions.  Mayor and City Council of Baltimore v. State, 168 Md. 619, 179 A. 169, 99 A. L. R. 680; County Commissioners v. Love, 173 Md. 429, 196 A. 122.

   The case before us is a typical case of non-use of power.  The Anne Arundel County Dog Law is a regulatory Act.  Maryland Theatrical Corp. v. Brennan, 180 Md. 377, 24 A. 2d 911. The license fees [**184] are incidental.  They are used in the administration of the Act and for the payment of damages caused by dogs[***15] to personal property.  [*437] Damage to property can be paid out of a claims fund, which is the only fund retained by the county, except a pound fund, the latter to provide a shelter or pound for stray dogs and others taken up for running at large without a license.  Any balance in the claims fund goes to this pound fund.  Damage to persons and property can also be recovered from the owner of the dogs. The owner of livestock or poultry damaged must elect, either to proceed against the claims fund, or against the owner, and cannot have both remedies.  There is no provision in the Act whatever for the payment by the county of any money for damage done to a person.  The Act contains many methods for its enforcement by peace officers or wardens or by individuals who make complaints.  It provides for fines for those failing to observe its provisions.  The appellee is authorized to make rules, regulations and provisions "not inconsistent with the" Act for "the convenient and effective enforcement" of the Act.  From all of this it appears that the appellee is given police power under the Act to control dogs within the county as a measure of public safety, and, perhaps, also with some[***16] reference to public health. This is a governmental function as determined by our decisions.  The non-use of the powers thus given does not render the appellee liable in damages. This conclusion is supported by the general authority as found in 2 Am Jur., Title Animals, Par. 141, p. 802: "Attempts have also been made to hold a municipality liable generally for injuries inflicted by an animal running at large because of failure either to pass or to enforce ordinances prohibiting such roaming.  In such cases the general rule appears to be that while the construction and maintenance of a street in a reasonably safe condition for travel is a corporate duty for a breach of which an action will lie, making and enforcing ordinances regulating the use of streets brings into exercise governmental and not corporate powers, and for any act or omission of duty in that respect, there is no liability in the absence of a statute imposing [*438]one.  It has, however, been stated that an exception exists with reference to maintaining public streets and ways in a condition of safety for public travel, and that a city is liable for negligence in discharging this duty, it being imposed directly[***17] upon the city and being ministerial in character." See Everly v. Adams, 95 Kan. 305, 147 P. 1134, L. R. A. 1915E, 448, and note; Little v. City of Madison, 49 Wis. 605, 6 N. W. 249, 35 Am. Rep. 793, and cases there cited.

   Nor do we find any special provisions in the Act which impose any responsibility done to persons by dogs running at large.  The damage to property can be paid out of the claims fund, after certain prerequisites are gone through with, and after the appellee passes upon the amount.  There is no other fund provided.  The designation of this fund for this purpose negatives the idea that the appellee has any authority to pay for such damage in any other way.  If the person whose property is damaged is not satisfied to adopt this method, he can sue the owner of the dog. It is noteworthy that in the section providing for owner's liability, there is included damage to the body as well as damage to the property, whereas damage to the body is not included in the provisions relating to the liability of the county.  This is an indication of the intention of the Legislature that the only county fund to be used for the purpose of paying claims for damage done[***18] by dogs is the claims fund.  Payment out of this fund is restricted to damage done to livestock and poultry.  For damage to the person, the injured party is given his remedy against the owner of the dog. The Act instead of authorizing such a suit as the one before us, by necessary implication, prohibits it.

   For the reasons above given the judgment of the Circuit Court for Anne Arundel County will be affirmed.

   Judgment affirmed, with costs. 

MARY LOREA v. SAMUEL LOREA 
No. 61, October Term, 1942.
 
Court of Appeals of Maryland
 
181 Md. 666; 1943 Md. LEXIS 166
 
 January  29, 1943, Decided

   PRIOR HISTORY: [**1]

   Appeal from the Circuit Court for  Anne Arundel  County (MELVIN, J.).

DISPOSITION: Decree affirmed, with costs on the defendant.

COUNSEL: George B. Woelfel for the appellant.

   Emmanuel Klawans for the appellee.

JUDGES: The cause was argued before SLOAN, DELAPLAINE, COLLINS, MARBURY, and GRASON, JJ.

OPINIONBY: SLOAN

OPINION: [*666] SLOAN, J., delivered the opinion of the Court. 

ISRAEL BACHRACH v. WASHINGTON UNITED COOPERATIVE, Inc. 
No. 57, October Term, 1942
 
Court of Appeals of Maryland
 
181 Md. 315; 29 A.2d 822; 1943 Md. LEXIS 124

 January  13, 1943, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decree reversed, and amended bill of complaint dismissed, with costs above and below to the appellant.

CORE TERMS:  mortgage, foreclosure sale, mortgagee, mortgagor, decree, assignee, ratification, ground of fraud, foreclosure, power of sale, chancellor, notice, mortgaged property, conspiracy, conscience, collateral, purchaser, default, duty, inadequacy of price, confederation, lawful, motive, foreclosure proceedings, bill in equity, previous case, foreclosing, farm, persons interested, equitable duty

COUNSEL: Daniel Ellison, with whom was Louis M. Strauss on the brief, for the appellant.

   George B. Woelfel for the appellee.

JUDGES: Sloan, Johnson, Delaplaine, Collins, Marbury, and Grason, JJ. Delaplaine, J., delivered the opinion of the Court.

OPINIONBY: DELAPLAINE

OPINION: [*317] [**824] In 1928 an association was formed in the [***4]City of Washington with the object of providing a place for a summer camp for Jewish children.  A committee, consisting of Harry Bachrach, Dr. Hyman Colodny and Joseph A. Rinis, purchased for that purpose a farm on the Patuxent River in Anne Arundel County, Maryland.  In acquiring the land as joint tenants, the three men assumed the mortgages thereon (the first for $1,400, and the second for $800)), gave a third mortgage for $1,900, and paid $871.04 in cash.

   In 1929 the association was incorporated in the District of Columbia under the name of Washington United Cooperative, Inc.  But during the following twelve years, Bachrach refused to become a member of the corporation, and threatened to sell his interest in the property unless he was paid the sum of $1,000, which he claimed he had contributed.  The corporation, however, claimed that he had not contributed more than $200.  In 1941 the corporation filed a suit to strike out a judgment which had been recovered by Maurice Haimowich, of Washington, against Bachrach on a confessed judgment note, alleging that the note had been given without consideration merely for the purpose of enabling Haimowich to sell the camp property under[***5] execution.  Before the case was heard, Bachrach died and his interest in the real estate passed to the two surviving joint tenants.  Shortly afterwards his brother, Israel Bachrach, appellant, purchased the first and second mortgages, which were in default, the third having been paid, and assigned the first mortgage to Louis M. Strauss, his attorney, [*318] for the purpose of foreclosure. On August 1, 1941, the assignee sold the property at public auction to the appellant for $1,700.  The sale was finally ratified by the court on September 5, 1941.

   On November 10, 1941, the corporation brought the instant suit to set aside the foreclosure sale on the ground of fraud. The amended bill of complaint alleged that Israel Bachrach said "continued the efforts of his deceased brother to euchre and defraud the plaintiff corporation out of its property." The chancellor overruled a demurrer to the amended bill.  It is the opinion of this court that the demurrer should have been sustained, because the amended bill did not allege specific charges of fraud.  As the particular acts of fraud relied on must be specifically charged, a bill of complaint making only general allegations of fraud[***6] is demurrable.  Payne v. Payne, 97 Md. 678, 685, 55 A. 368. It is also our view that the mortgagors and the assignee should have been parties to the suit.  It is a fundamental rule that all persons interested in the subject matter of a suit must be made parties to it, for it is the constant aim of equity to award complete relief by determining the rights of all persons interested in a suit, thus settling the whole controversy and preventing future litigation.  Waring v. National Savings & Trust Co., 138 Md. 367, 114 A. 57. The United States Supreme Court has definitely held that a trustee who has sold property under foreclosure proceedings is a necessary party to a suit brought to set aside the sale.  Ribon v. Chicago, R. I. & P. R. Co., 16 Wall. 446, 21 L. Ed. 367.

   In his decree passed on May 20, 1942, the chancellor rescinded the order of ratification of sale and annulled the deed from the assignee to the purchaser. The appeal is from that decree. Under the [**825] Maryland Mortgage Act, it is permissible to insert a clause in any mortgage authorizing the mortgagee or any other person named therein to sell the mortgaged property on such contingencies as may[***7] be therein expressed; but before the person [*319]so authorized shall make such sale, he shall give bond to the State and shall give such notice as may be stated in the mortgage, and if there be no agreement as to notice, then he shall give twenty days' notice by advertisement of the time, place and terms of sale.  Code, 1939, Art. 66, Secs. 6, 8, 9.  The Act provides that the court having chancery jurisdiction where the sale is made shall have full power to hear and determine any objections which may be filed against the sale by any person interested in the property, and may confirm or set aside the sale.  After confirmation by the court, and upon payment of the purchase money, the sale shall pass all the title which the mortgagor had in the property at the time of the recording of the mortgage. Code, 1939, Art. 66, Secs. 10, 12.  Until a sale is reported by the mortgagee, the proceedings are ex parte; but after the report is made, an apportunity is afforded to all interested parties to make objections to the sale.  Judge Bryan explained the Act as follows: "The purpose of this legislation was to provide a more expeditious, and less expensive, method of enforcing mortgages[***8] than the former proceeding by formal bill in equity, but not, by any means, to impair or defeat the right of the mortgagor to be heard in defense of his property; and in enabling him to make any objections against a sale, which would take away his title, the statute has preserved to him his unquestionable right to show that the mortgage was invalid, and therefore did not justify a sale of his property. Under a formal bill in equity, the court in a proper case decrees that a sale shall be made, and appoints a trustee to execute its decree; and, after the sale is made, it hears objections to the mode in which it has been conducted; but, in proceedings under the statute, the question of sale comes before the court for the first time when the sale is reported for ratification, and then all objections against the sale are to be heard and determined.  The difference is that in the one case the propriety of making a sale is decided before the decree [*320] is passed, and in the other all questions are decided on the ratification. The right of the mortgagor to make his defenses is the same in each case." Albert v. Hamilton, 76 Md. 304, 308, 25 A. 341, 342.

   It is essential to the[***9] prompt administration of justice that the rule be inviolably observed that no court shall set aside a foreclosure sale merely because of harmless errors or irregularities committed in connection with the exercise of the power of sale, or for any slight or frivolous reasons not affecting the substantial rights of the parties.  Public policy requires that the ratification of a lawful judicial sale shall be final and conclusive, unless the purchaser was precluded by fraud from making seasonable objection to its ratification. It requires substantial grounds to justify a court in setting aside a judicial sale when lawfully made, for otherwise the public would be loath to bid for property thus offered.  So the law is firmly established in Maryland that the final ratification of the sale of property in foreclosure proceedings is res judicata as to the validity of such sale, except in case of fraud or illegality, and hence its regularity cannot be attacked in collateral proceedings.  Brown v. Gilmor's Ex'rs, 8 Md. 322, 326; Bank of Commerce v. Lanahan, 45 Md. 396, 410; Felgner's Admr's v. Slingluff, 109 Md. 474, 480, 71 A. 978; Barroll v. Benton, 121 Md. 174, 88 A. 101;[***10] Bainder v. Sound Building & Loan Ass'n, 161 Md. 597, 158 A. 2.

   However, a court of equity has the power to set aside a foreclosure sale upon an original bill for fraud filed by the mortgagor or any other party interested, where fraud has been discovered after the ratification of the sale, even after the decree has become enrolled.  The question presented for our consideration in this case is whether there was evidence of fraud on the part of Israel Bachrach, appellant, sufficient to justify the decree of the chancellor. The law presumes that the mortgagee or assignee has discharged his duty faithfully in the exercise of the power of sale in a mortgage. Consequently [*321] the party seeking to have a sale vacated on the ground of fraud has the burden of proof. Where a foreclosure sale has been finally ratified in accordance with established chancery practice, and the sale is impeached on the ground of fraud, the alleged acts of fraud must be clearly established by proof and must be of such a character as to appeal strongly to the conscience of the court, before the sale will be set aside.  Burch v. Scott, 1 Gill & J. 393, 425; Shryock v. Morris, 75 Md. 72, 80, 23[***11] A. 68; Connaughton v. Bernard, 84 Md. 577, 590, [**826] 36 A. 265; Gottschalk Co. v. Samuelson, 128 Md. 541, 97 A. 1003. It is also well settled that a decree assailed on the charge of fraud will not be set aside for any matter which has been actually considered in the case in which the decree was rendered.  The acts of fraud for which a court of equity will set aside a decree rendered in a previous case must be extrinsic or collateral to the issue in the previous case. Marbury v. Stonestreet, 1 Md. 147, 159; Maryland Steel Co. v. Marney, 91 Md. 360, 46 A. 1077; Payne v. Payne, 97 Md. 678, 684, 55 A. 368; United States v. Throckmorton, 98 U.S. 61, 25 L. Ed. 93.

   In the case before us there was no allegation that fraud had been committed in the execution of the mortgage. There was no attack on the advertisement of sale.  There was no evidence to show that the sale was held surreptitiously to keep bidders away, or that any effort was made to interfere with the bidding. On the contrary, it appears that the sale was properly conducted at the court house in Annapolis.  We are mindful of the fact that the farm, containing about 100 acres of sandy land and[***12] improved with a two-story farm house, was acquired in 1928 for a total consideration of $4,971.04, and was sold at the foreclosure sale for only $1,700.  But the appellant swore that the fair market value of the property in 1941 was not more than about $1,500 or $2,000, although a frame building used for a dining hall and a number of cabins were erected on the land.  [*322] However that may be, the law is established that, since the confirmation of a foreclosure sale is the final determination by the court that the mortgaged property was sold at a fair price, the defense of inadequacy of price cannot be raised in subsequent proceedings.  Walton v. Washington County Hospital Ass'n, 178 Md. 446, 13 A. 2d 627, 128 A. L. R. 970. It is true that where there is inadequacy of price at a foreclosure sale, a court of equity will be justified in setting aside the sale on proof of any attempt to stifle bidding or any other unfair conduct at the sale.  Inadequacy of price is a strong auxiliary argument in connection with circumstances which cast doubt or suspicion upon the correctness of the sale.  But mere inadequacy of price alone is not sufficient to set aside a sale, unless[***13] it be so gross and inordinate as to shock the conscience and raise the presumption of fraud, unfairness, or lack of judgment on the part of the mortgagee, or some misconduct or mistake for which the purchaser should be held responsible. Condon v. Maynard, 71 Md. 601, 18 A. 957; Holton Park Co. v. Gary, 133 Md. 509, 105 A. 751; Chew v. Baker, 133 Md. 637, 642, 105 A. 756; Preske v. Carroll, 178 Md. 543, 16 A. 2d 291.

   The corporation complained that the appellant purchased the mortgages "on the pretext that he was looking out for the interest of his brother's widow." Of course, it was manifestly possible for him to look after the widow's interest as well as his own.  In fact, he swore that he purchased both mortgages "at 100 per cent. valuation." In any event, even though there may have been some misstatements, it does not necessarily follow that they constituted fraud. Fraud, as the term is defined in equity, includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence justly reposed, and which are injurious to another, or by which an undue and unconscientious advantage is taken of another.  St. John the Baptist [***14] Greek Catholic Church v. Gengor, 118 N. J. Eq. 467, [*323] 180 A. 379, 393. Where the loss to the complaining party was not caused by any breach of legal or equitable duty, it is damnum absque injuria.  It is generally accepted that a court will not set aside a foreclosure sale merely because the mortgagee was actuated by malice.  The law is clear that the motives of a mortgagee in acquiring and foreclosing a mortgage cannot be set up as a defense to a foreclosure. Morris v. Tuthill, 72 N. Y. 575; Davis v. Flagg, 35 N. J. Eq. 491; Weiner v. Cullens, 97 N. J. Eq. 523, 128 A. 176. In the case where the New England Mutual Life Insurance Company promised to give ample notice to the mortgagor when it desired payment, and the company was afterwards induced by false representations to assign the mortgage to the defendants, who sold the property at foreclosure without giving any notice to the mortgagor, whereby he lost his equity of redemption, the Supreme Judicial Court of Massachusetts held that the mortgagor had no right of action against the defendants for the reason that the acts depriving him of the benefit of the gratuitous promise, even though by falsehood, [***15] were not an invasion of any legal right.  The court said in that case: "There is a large class of moral rights and duties * * * which the law does not attempt to enforce or protect.  The refusal or discontinuance of a favor gives no cause of [**827] action.  If one trusts to a mere gratuitous promise of favor from another and is disappointed, the law will not protect him from the consequence of his undue confidence, nor encourage carelessness or want of prudence in affairs.  * * * The exercise of a right conferred by a valid contract, in the manner provided by its terms, cannot be the ground of an action.  The law will not inquire into the motives of the party exercising such right, however unfriendly and selfish.  * * * The foreclosure of a mortgage under a power of sale, for example, may be made at such time and under such circumstances as to cause great distress and sacrifice to the mortgagor; but, whatever the motive of the mortgagee, no [*324] remedy is afforded for his oppressive conduct, if the requirements of the contract have been fulfilled." Randall v. Hazleton, 12 Allen, Mass., 412, 415.

   It is admitted that Harry Bachrach asserted a claim for $1,000 against [***16]the corporation during the period of twelve years until his death, and that he refused to convey his interest in the property until he was paid the sum claimed.  We are not called upon to decide whether his claim was just, but undoubtedly he had the right to defend it.  Furthermore, irrespective of whether he actually owed the amount of the judgment recovered by Maurice Haimowich, there was no evidence to show that the appellant had any connection with the recovery of the judgment.  Nor was there any evidence to prove that the appellant made any effort to acquire the mortgages during the lifetime of his brother.  It is clear that if a mortgagee or his assignee complies with the terms of the power of sale in the mortgage, and conducts the foreclosure sale properly, the court will not set aside the sale merely because it brings loss and hardship upon the mortgagor. Strict enforcement of a mortgagee's right may prove to be harsh, but the law generally disregards such a result, because a default by the mortgagor is a violation of the deliberate agreement of the parties, and the remedy is definitely fixed by statute.  It is the mandatory duty of the court to recognize the statutory remedy[***17] and enforce the right of the mortgagee. Code, 1939, Art. 66, Secs. 6-14; Doeller v. Mortgage Guarantee Co., 166 Md. 500, 508, 171 A. 856.

   Finally, the fact that the appellant and his attorney combined in the scheme to obtain the camp property by purchasing and foreclosing the mortgage does not amount to a conspiracy, A fraudulent conspiracy is the confederation of two or more persons to cheat and defraud, when the design has actually been executed by the confederates with resulting damage to their victim.  Western Maryland Dairy v. Chenowith, 180 Md. 236, 23 A. 2d 660, 664. As the mortgage in the present case was in [*325] default, the sale of the property to the appellant was lawful. It is expressly provided by the Mortgage Act that no title derived through the foreclosure of mortgaged property shall be impeached, either at law or in equity, on the ground that the property was bought in by the mortgagee or his assignee. Code, 1939, Art. 66, Sec. 15.  If the acts of the mortgagee and the assignee were lawful, their confederation does not make their acts unlawful. To establish a conspiracy, it must be shown that there was a confederation of two or more persons for[***18] the performance of an unlawful act or a lawful act by unlawful means, and that damage resulted therefrom.  Sumwalt Ice & Coal Co. v. Knickerbocker Ice Co., 114 Md. 403, 414, 80 A. 48; Knoche v. Standard Oil Co. of New Jersey, 138 Md. 278, 282, 113 A. 754.

   Inasmuch as the evidence in this case failed to establish fraud on the part of the appellant in connection with the foreclosure of the mortgage, it is the unavoidable duty of the court to reverse the chancellor's decree.

   Decree reversed, and amended bill of complaint dismissed, with costs above and below to the appellant. 

L. W. BANNISTER v. H. F. BANNISTER (LOCKARD) 
No. 62, October Term, 1942
 
Court of Appeals of Maryland
 
181 Md. 177; 29 A.2d 287; 1942 Md. LEXIS 226

 December  7, 1942, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decree affirmed, appellant to pay the costs.

CORE TERMS:  marriage, divorce, final judgment, nunc pro tunc, interlocutory decree, ex post facto, retroactive, dissolved, decree, impediment, invalid, impair, Constitutional Law, interlocutory judgment, contract of marriage, power to regulate, retroactively, inadvertence, contracted, everywhere, validate, curative, complied, demurred, married, affixed

COUNSEL: Linwood L. Clark for the appellant.

   William J. McWilliams, with whom were McWilliams, Duckett & Haley on the brief, for the appellee.

JUDGES: Sloan, Johnson, Delaplaine, Collins, Forsythe, Marbury, and Grason, JJ. Forsythe, J., delivered the opinion of the Court.

OPINIONBY: FORSYTHE

OPINION: [*178] [**287] On March 17, 1942, the appellant, Leland Wesley Bannister, filed a bill of complaint in the Circuit Court for Anne Arundel County, Maryland, against his wife, Hattie Fay Bannister, appellee, in which he asked for a decree annulling their marriage. An answer was filed to which the appellant demurred. Thereupon an amended bill was filed in which the prayers for relief asked[***3] (a) that the marriage between the appellant and the appellee be declared void ab initio, and (b) for a divorce a vinculo matrimonii. The answer was refiled, and the appellant again demurred to the answer.  The court overruled the demurrer and dismissed [**288] the amended bill, and the appellant appeals.

   It is alleged in the amended bill that the appellant and the appellee were married on March 10, 1935, in the State of California; that at that time the appellee represented that she had secured a divorced from her former husband, Howard Lockard.

   The answer avers that on October 16, 1929, the appellee obtained, in the Superior Court of the County of Santa Barbara, California, an interlocutory decree of divorce from Howard Lockard.  Filed with the answer, as Exhibit A, is the stipulation signed by counsel representing both of the parties to that cause, in which it [*179] appears that a final decree of divorce was entered by the said court on May 27, 1935, about two and one-half months after the marriage of the appellant and the appellee.  Then, on the 4th day of April, 1942, the same court, but another judge, passed the following order: "That the Final Decree of Divorce[***4] in this cause be signed, dated, filed and entered nunc pro tunc granting the Final Decree of Divorce as and of the 18th day of October, 1930, the date when the same could have been given or made by the court if applied for."

   That order was based upon the power and authority conferred upon the court by the Civil Code of California, Section 131.5 and Section 133, as amended by the legislature in 1941.  The statute is as follows: "Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence, the same has not been signed, filed or entered, if no appeal has been taken from the interlocutory judgment or motion for a new trial made, the court, on the motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed or entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for.  The court may cause such final judgment to be signed, dated, filed and entered nunc pro tunc as aforesaid, even though a final judgment may have been previously entered where by mistake, negligence or inadvertence the same[***5] has not been signed, filed or entered as soon as it could have been entered under the law if applied for.  Upon the filing of such final judgment, the parties to such action shall be deemed to have been restored to the status of single persons as of the date affixed to such judgment, and any marriage of either of such parties subsequent to one year after the granting of the interlocutory judgment as shown by the minutes of the court, and after the final judgment could have been entered under the law if applied for, shall be valid for all purposes as of the date affixed to such final judgment, upon the filing thereof."

   [*180] Prior to the filing of the bill in the Circuit Court for Anne Arundel County, Maryland, all of the proceedings in this case, the appellee's first marriage, her divorce, and her marriage to the appellant, took place in California.

   The sole contention of the appellant is that his marriage to the appellee is not valid in Maryland because it took place before the appellee's interlocutory decree of divorce in California was made final.

   It is now the settled law that marriages are valid everywhere if the requirements of the marriage laws of the State where the[***6] contract of marriage takes place are complied with; and one of the elements of a marriage relation is the capacity of the parties to enter into the marriage contract. Restatement of Conflict of Laws, Sec. 121.  The States have the power to regulate, by statute, marriages, contracted or dissolved, within their respective jurisdictions, and such statutes are uniformly held to be constitutional.  Harrison et al. v. State of Maryland, 22 Md. 468, 85 Am. Dec. 658. At page 493 of 22 Md. in that opinion it is stated: "The right to confirm is the necessary corollary of a power to dissolve marriage by divorce. * * * Where the parties contracting marriage labor under legal disabilities, the contract is liable to be dissolved by the courts or affirmed by the Legislature."

   In Hopkins v. Hopkins, 287 Mass. 542, 192 N. E. 145, 95 A. L. R. 1286, the wife married while the husband had a previous wife living.  The statute validated the marriage from and after the removal of the impediment, which was the death of the first wife, provided the parties continued, in good faith, to live together.

   The contention of the appellant, that the California statute was not passed until after[***7] the date of the marriage does not prevent the statute having effect, unless there is a clear expression in the statute that it shall not be retroactive. In Lufkin v. Lufkin, 182 Mass. 476, 65 N. E. 840, the court held that a statute applied where the marriage took place before the statute was [**289] passed, [*181] and the impediment was removed after it went into effect.

   In Harrison v. State, supra, it was contended the statute was unconstitutional because it was given retroactive effect.  But this court said at page 492 of 22 Md.: "There is no clause in our Constitution inhibiting retroactive laws in civil cases.  The prohibition of ex post facto laws applies only to criminal cases." Elliott v. Elliott, 38 Md. 357.

   Also, we have held in Bartlett v. Ligon, 135 Md. 620, 626, 109 A. 473, that laws are not unconstitutional when applied to pre-existing cases, unless they impair the obligation of contracts or are ex post facto.  16 Corpus Juris Secundum, Constitutional Law, Sec. 414, p. 856.

   Considering the statute of another State, this court said, in Fensterwald v. Burk, 129 Md. 131, 136, 98 A. 358, 360: "In passing upon the constitutionality [***8]of Acts of our own State that legislative Act should not be pronounced unconstitutional or invalid in a doubtful case, * * * and we should be still more reluctant in pronouncing unconstitutional the Act of a sister State where the same has never been passed upon by the highest court of that State." In this case our attention has not been called to, nor have we found, any decision of the California courts in reference to the Act here involved.

   In this statute there are no terms or expressions which can reasonably be construed as indicating an intention on the part of the California Legislature that it should affect only cases arising after its passage.  On the contrary there is very good reason to believe that it was the definite intention of the Legislature that the Act should apply to cases which arose prior to its passage. It is an Act entirely curative in its intention and very like the Acts correcting and validating defectively executed deeds.

   In this case it does not appear that there is any issue of the marriage, but undoubtedly there will arise cases in which children will be involved, and public policy demands that equitable remedies, so long as they do not [*182] [***9] impair contracts, and are not ex post facto, be provided.  The use of the words nunc pro tunc in the statute leave no doubt that the Act was intended to apply retroactively. The Act contains clear expressions indicating that its purpose was to correct such mistakes as occurred in this case, and we find no rule of law, or other justifiable reason to hold ineffective an Act of another State so far not held invalid by the highest court of that State.

   Decree affirmed, appellant to pay the costs. 

WILLIAM J. MEYERS v. MARGARET MURPHY 
No. 25, October Term, 1942
 
Court of Appeals of Maryland
 
181 Md. 98; 28 A.2d 861; 1942 Md. LEXIS 213

 November  18, 1942, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  mortgage, misrepresentation, decree, bookkeeper, induced, treaty, burden of proof, conversation, married, third parties, original parties, equal value, real estate, early part, corroboration, signature, mortgagee, envelope, happened, definite, annulled, execute, filled, admits, annul, blank, safe, lend, gifts, seal

COUNSEL: George B. Woelfel for the appellant.

   Wilbur R. Dulin and Dulany Foster, with whom were Weinberg & Green on the brief, for the appellee.

JUDGES: Bond, C. J., Sloan, Delaplaine, Collins, Marbury, and Grason, JJ. Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*99] [**862] Appellee filed her bill of complaint in the Circuit Court for Anne Arundel County to have annulled the release of a mortgage from the appellant to her, which release she claimed to have signed through fraud and misrepresentation on the part of the appellant and without any consideration.  After answer, testimony was taken before the court and a decree was signed granting relief asked.  From this decree the case comes here on appeal.

   No question arises in the case as to the rights of third parties, so that it becomes unnecessary to consider whether the fraud claimed is fraud in the factum or [*100] fraud in the treaty. Fraud in the factum is said to arise from the want of identity or disparity between the instrument executed and the one intended to be executed, or from circumstances which go to the question whether the instrument[***3] in fact ever had any legal existence.  Fraud in the treaty is a term used to describe a situation where a person is induced by some fraudulent representation or pretense to execute the very instrument which is intended to be executed, for example, where a person who can read neglects to read a paper because of some false representation and signs it with a misapprehension as to the contents.  The difference between the two kinds of fraud becomes important only in relation to third parties, because fraud in the factum makes the instrument absolutely void, whereas fraud in the treaty renders it voidable and brings into play the equitable principle that where one of two innocent parties suffer from the act of the third, he who has enabled such third person to occasion the loss must sustain it.  Furst & Thomas v. Merritt, 190 N. C. 397, 130 S. E. 40.

   It is fully within the power of an equity court to give relief in cases of fraud or misrepresentation between the original parties to the execution of an instrument in either kind of fraud.  It makes no difference whether such instrument is under seal or not.  Schaferman v. O'Brien, 28 Md. 565, 92 Am. Dec. 708; Arthur v. [***4]  Morrow Bros., 131 Md. 59, 101 A. 777. The burden of proof is upon the complainant, and the question for the court to determine is whether the facts shown indicate fraud or misrepresentation. In the case before us, there is no question that if the complainant's testimony is to be believed, there was fraud.  The defendant's testimony is to the contrary.  It becomes merely a matter of weighing the evidence.

   The appellant was a dealer in second-hand automobiles in the city of Baltimore, doing a business which he estimates as from $200,000 to $250,000 a year.  He was a widower at the time of the transaction complained of, but has since married again.  The appellee holds an important [*101] position in a large department store in the city of Baltimore at a good salary.  She also had previously been married, but whether she was a widow or divorced does not appear in the testimony.  Her work required her to go to New York practically every other week, and she was evidently a capable buyer.  She had, however, no experience whatever in real estate matters, knew nothing about mortgages or deeds, and her personal financial dealings had to do only with deposits in savings banks and checking[***5] accounts and taking out insurance policies. The parties met in 1935, became increasingly friendly during the succeeding years, and according to the testimony of the appellee, they became engaged to be married. The appellant denies this, but admits that he was "going with her," whatever that may mean.  At any rate, she made frequent visits to the appellant's cottage at Edgewater Beach and appeared to be much at home there.

   In the early part of 1938, it is agreed by all parties that the appellant had to [**863] raise about $17,000 and he told Miss Murphy and Raymond Neudecker, a Washington lawyer who had property near Mr. Meyers, of his need. As a result, it was agreed that Mr. Neudecker should lend Mr. Meyers $3,000 secured by a second mortgage on the South River property, and that Miss Murphy should also lend him $3,000 secured by a third mortgage on the same property. There was at the time a first mortgage on the property for $5,500 to the Equitable Trust Company.  These two new mortgages were prepared by Mr. Neudecker, were executed by Mr. Meyers and were put on record by him.  The Murphy mortgage was not acknowledged by anyone as to the consideration.  The testimony[***6] of both parties is that Miss Murphy had only $2,000 in cash of her own, which she gave the appellant, and that she was unable to raise the additional thousand in cash.  It does appear, however, from the record, that she paid interest on the Equitable Trust mortgage for Mr. Meyers from time to time, and she also testified that she gave him $200 which she had borrowed [*102]on her insurance.  These payments amount to $1,079.53.  Mr. Meyers admits the interest payments on the mortgage but says they were gifts made because Miss Murphy had the use of his place and they were not to be included in the mortgage. He says that the $200 check he cashed, but gave her the money and it was not given to him.

   In the early part of 1940, the parties had a disagreement and did not see each other any more, and Miss Murphy's testimony is that in September of that year she called him up and said: "Now our friendship is broken off I would like to have the mortgage in my possession." At that time she was told that she had signed a release.  On October 15 she had a further conversation with Mr. Meyers over the telephone, to which one of her friends was a witness listening in. According to this[***7] testimony, Mr. Meyers admitted he had not paid her anything, but he had gotten her to sign a release because he knew if anything happened he would have trouble with her.  Immediately after that conversation, the appellee consulted a lawyer and the following May, the bill was filed.

   The testimony as to the circumstances under which the release was signed differs widely.  Miss Murphy's statement is that one evening after they had had dinner, Mr. Meyers told her that he had just had an accident, that he had been in an automobile accident, and that if anything happened to her, her mother, who was dependent on her for support, would not be protected, and that she ought to "sign the mortgage." She consented to do this under those circumstances, thinking that it should be done, and not knowing anything about mortgages. She went with Mr. Meyers to his place of business.  He brought out some papers, and she signed one of them without reading it in a blank space where he told her, and where there was no writing.  Her signature was witnessed by Mr. Meyers' bookkeeper whom she says was standing in the rear of the office and to whom she said: "Do I have to sign all these papers?" And the [*103] [***8] bookkeeper said: "Knowing Mr. Meyers as well as you do, I don't think it is necessary for you to read them." Miss Murphy signed where Mr. Meyers indicated, and at the time she says the bookkeeper was nowhere near her.  No payment was made at the time, and no mention was made of any release.  Miss Murphy says that Mr. Meyers neither then nor at any other time has ever paid her back a cent. Mr. Meyers, on the contrary, says that he did pay Miss Murphy $2,000 and he gives definite dates from the back of an envelope on which he claimed to have made the entries at the time he made the payments, and which he kept in his safe. These entries are $300 on December 24, 1938, and the balance, $200 each month in 1939 until July 25, when he claims he made the final payment of $500. This, he says, was the time the release was executed, although the date on the release is not the 25th, but the 29th.  The payments were all made in cash, according to his testimony.

   His bookkeeper corroborates the appellant in the matter of the execution of the release.  He says that Mr. Meyers asked him in the presence of Miss Murphy: "Will you witness her signature to this release, I want to pay her the balance [***9]on this mortgage"; that that was all that was said; that he was about a foot from Miss Murphy when she signed the release; and that he saw her pick up some money which Mr. Meyers had lying on the safe; that Miss Murphy did not have the conversation with him about signing the papers to which she testified.  The bookkeeper, Mr. Wentworth, was very definite about this, but his recollection was not so good as to other matters [**864] he had attended to, particularly in reference to his taking the acknowledgment of Mr. Neudecker on the latter's mortgage. He testified that the paper was filled in when Miss Murphy signed it and it was not blank as she testified.

   Mr. Neudecker was a witness, but his testimony was not important, except that he did have a copy of a letter which Mr. Meyers wrote him, in which he was asked to write the Murphy mortgage for $3,000.  Mr. Meyers [*104] has previously denied that he had directed that that amount be filled in.

   The trial court called attention in his opinion to the curious fact that during the time when Mr. Meyers said he was repaying at the rate of $200 a month, that is during the first six months of 1939, Miss Murphy was paying his interest[***10] at the bank.  Mr. Meyers' only explanation of this was that Miss Murphy's payments were gifts. Mr. Meyers had no records which showed his payments except the memoranda on the envelope. He did not know whether or not his books would show anything, but he did not produce his books in evidence.

   In any case in which the decision depends so largely, as in this case, upon the truth or falsity of the testimony, the demeanor of the witnesses in giving their evidence becomes of paramount importance.  An appellate court can read the testimony, can detect various inconsistencies and consider the probabilities or the improbabilities of the facts stated by the witnesses.  The appellate court, however, cannot see the witnesses when they are testifying.  The trial court can, and the way in which testimony is given frequently indicates to an experienced judge whether or not a witness is telling the truth.  For this reason, in cases where the testimony on each side is directly contrary and where the corroboration is of about equal value, it has been the rule of this court to accept the findings of the trial court.  That rule is amply justified for the reasons above given, and this is an appropriate[***11] occasion for its exercise.  The court below had the opportunity to see these parties testify and concluded that the testimony on behalf of the appellee was more worthy of belief than on behalf of the appellant.  For that reason, he determined that the release was obtained by fraud and misrepresentation from the appellee, and he therefore annulled it.  There are facts and explanations in the appellant's testimony which justify that conclusion, and these, together with the opportunity the court below had to hear the testimony and to [*105] see the witnesses when they gave it, are sufficient to justify this court in affirming the decree, which we do.

   Decree affirmed, with costs. 

JAMES AUSTIN STUART, et ux. v. MAMIE T. JOHNSON 
No. 10, October Term, 1942
 
Court of Appeals of Maryland
 
181 Md. 145; 28 A.2d 837; 1942 Md. LEXIS 220

 November  18, 1942, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decree affirmed, with costs.

CORE TERMS:  roadway, easement, prescriptive period, continuous, burden of proving, prescription, trespasser, enjoyment, public road, decree, uninterrupted, destroyed, bought, enjoin, lived, feet, way of necessity, voluntary abandonment, person claiming, law and equity, adverse user, chancellor, adjoining, childhood, definite, surveyor, user

COUNSEL: George E. Rullman, submitted on brief for the appellants.

   Benjamin Michaelson and William W. Townshend, Jr., submitted on brief for the appellee.

JUDGES: Bond, C. J., Sloan, Johnson, Delaplaine, Collins, Forsythe, Marbury, and Grason, JJ.  Sloan, J., delivered the opinion of the Court.

OPINIONBY: SLOAN

OPINION: [*146] [**837] The plaintiffs, James Austin Stuart and Sarah Cross Stuart, his wife, filed a bill against Mamie T. Johnson, defendant, to enjoin the latter, who owned and occupied an adjoining property, from continuing the use of a roadway through property in Anne Arundel County which the plaintiffs[***3] had recently purchased.  From a decree dismissing the bill, the plaintiffs appeal.

   The plaintiffs acquired the property from Katharine Taylor of Philadelphia, Pennsylvania, through her agent, Richard A. Neal, with whom the plaintiffs dealt.  It was an eight-acre tract, through a narrow portion of which, 146 feet in length and 7 feet in width, the defendant had been using a roadway described by a surveyor, J. Revell Carr, as a road marked on a plat (not in the record) as an existing used road that leads from Mamie Turner Johnson's house down to the road that runs out to the county road.
 
   [**838] The information we get from the record is none too definite as to the location of this road.  At the time of the case all of the participants knew the property involved and the alleged easement in question.  Even the chancellor had viewed the premises.  On appeal, the only source of information open to this court is the [*147] printed record, and our view of the situation depends upon the information thus relayed from the court room to us.  The witnesses all seemed to know what the controversy was about; namely, a piece of road 146 feet long, about 7 feet wide, used by the defendant[***4] through the land of the plaintiffs.

   There was no question of the jurisdiction between law and equity raised below, and, of course, it cannot be raised here.  Code, 1939, Art. 5, Sec. 10. There is no disagreement as to the requirements of a title by prescription as defined in Cox v. Forrest, 60 Md. 74; Pepper v. Traeger, 152 Md. 174, 180, 181, 136 A. 537; Bonsal v. Baltimore & Ohio R. Co., 138 Md. 309, 314, 113 A. 751. The defendant answered, admitting her adverse and hostile use of the road, and asserted that it was a way of necessity; that it was her only way out to the public roads.  It is not shown or claimed that plaintiffs and defendant held from or through a common grantor, so that there could not be a way of necessity. Oliver v. Hook, 47 Md. 301, 310. The defendant's claim of title to the easement is by over twenty years' adverse, continuous uninterrupted nortorious user. The burden is on the plaintiffs to show that the defendant is a trespasser, but on the latter to show that she has been a continuous trespasser for the prescriptive period at least twenty years.  Oliver v. Hook, 47 Md. 301, 311; Hansel v. Collins, 180 Md. 209, 216, 23 A. 2d 686, [***5] 690. The question, therefore, as it was before the chancellor, becomes one of fact.

   It is evident that before Major Stuart bought, he had inspected the premises and saw for himself that there was a used way through the property.  He inquired of the owner's agent about this road and was assured it didn't mean anything, and that no one had acquired any rights of ownership of a way through the property.  The agent, Neal, when the case came to trial, questioned as to the time of the user of the road, was not very definite; his response was that he "never took account of it" -- he didn't think it had been twenty years.

   [*148] The testimony of the defendant was, that she had been born and reared on the land which she now owns and occupies.  After the house in which she lived as a child and grown girl had been destroyed by fire, she went to Baltimore, where she was employed.  By deed of July 27, 1921, she bought the property and ever since has lived there, rebuilt the home which had been destroyed by fire before she left for Baltimore, and ever since has been using the road through the property now owned by the plaintiffs, the same way to the public road she had been using since her[***6] childhood. Other persons who lived in the vicinity of her property used it also.  The surveyor, Carr, testified that from "the general conditions there and other roads," he had seen, "it could have been there eighteen to twenty years." The defendant was corroborated by neighbors, who had used the road.

   The effort of the plaintiffs appears to have been that the natural and logical acts as to the defendant's property is through a school lot, which she now owns, adjoining plaintiff's property on the south.  The school building was destroyed by fire in 1929, and the road which gave access to it from the public road could be used to reach the properties over the hill in the rear, one of which is the defendant's.  The road evidently was used only as access to the school as, since its abandonment as a school, it had become impassable.  The issue is not whether the defendant has another way out of her property, but whether she has used the way here complained of for the prescriptive period of twenty years.  Tiffany on Real Property, 2d Ed., Sec. 525; Cox v. Forrest, 60 Md. 74.

   The defendant had used this way to the public road in her childhood and young womanhood.  She went to Baltimore, [***7] and after a few years she bought the property, and resumed the use of the road to which she had been accustomed, and without interference of the owners of the property, who are now the plaintiffs.  It seems to us that the case of Cox v. Forrest, 60 Md. 74, 80, is [*149]the answer, where it is said, the law does not "mean by 'an uninterrupted and continuous enjoyment,' that a person shall use the way every day for twenty years, but simply that he exercises the right more or less frequently, according to the nature of the use to which its enjoyment may be applied, and without objection [**839] on the part of the owner of the land, and under such circumstances as excludes the presumption of a voluntary abandonment on the part of the person claiming it." Tiffany on Real Property, 2d Ed., Sec. 525.

   In the opinion of this court, the defendant has sustained the burden of proving that she had a title by prescription to the right of way she claims through the plaintiff's property, and the decree appealed from should be affirmed.

   Decree affirmed, with costs. 

WILLIAM H. EVANS v. JOHN DAVIS STINCHCOMB et ux. 
No. 24, January Term, 1942
 
Court of Appeals of Maryland
 
180 Md. 482; 25 A.2d 444; 1942 Md. LEXIS 168

 April  8, 1942, Decided

   PRIOR HISTORY: [***1]  
Appeal from Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  injunction, oyster, decree, attachment, planting, chancellor, bathing, exact, shore line, enjoined, definite, boating, bottom, front, shells, shore, water, original decree, relief prayed, accomplished, conservation, prescribing, ascertained, enforceable, restrained, adjoining, interfere, settle, lease, boats

COUNSEL: Louis M. Strauss, with whom was Eugene P. Childs on the brief, for the appellant.

   Emanuel Klawans for the appellees.

JUDGES: Bond, C. J., Sloan, Delaplaine, Collins, Forsythe, and Marbury, JJ. Bond, C. J., delivered the opinion of the Court.

OPINIONBY: BOND

OPINION: [*483] [**444] In litigation between owners of two adjoining parcels of land on Gingerville Creek, South River, Anne Arundel County, the chancellor enjoined the owner of one, Evans, from planting oysters so close to the Stinchcomb shore line as to interfere with the Stinchcombs' use of it for bathing and boating. A later application for an attachment of Evans for violation of the injunction was rejected, and the chancellor made the injunction more definite for the future by prescribing the exact depth of water that the defendant might use.  The defendant objects to the procedure by which the change was made, contending that an order vacating the original decree, on a petition or bill of review, was necessary to accomplish it, and that a hearing, which was not had, was necessary.  This court finds no error, however.

   Evans had, in the year 1928, obtained[***3] a lease for cultivating oysters on the bottom opposite the adjoining land, but had made no use of it, having merely anchored boats in the area.  After Stinchcomb and wife had filed their bill in this case, applying for an injunction to restrain interference with their water rights, Evans made application for another lease of oyster bottoms covering those [*484] in front of the Stinchcomb land.  In the litigation the court, after full hearing, and personal inspection of the premises in company of counsel for [**445] both sides, passed a decree on July 2, 1940, in which each party was enjoined from interference with riparian rights of the other.  Evans being enjoined specifically from interfering with the rights of bathing and boating from the Stinchcomb shore by mooring boats and planting oysters. Upon a petition of the Stinchcombs for elaboration of the injunction, it was on July 8, 1940, ordered that the decree stand open for further consideration, but on February 17, 1941, the court reaffirmed it upon condition that Evans withdraw his new application for additional leased bottoms in front of the adjoining shore, or assign all his right, title and interest in it to the Stinchcombs. [***4] On April 17, 1941, the Stinchcombs, averring that Evans had bedded oysters and shells along the entire length of their front within water not more than two feet ten inches deep, thus preventing wading and bathing, obtained an order nisi for the attachment of Evans for contempt of court in violating the court's previous order, and Evans answered.  It was in this subsequent proceeding that the order appealed from was passed.

   In an accompanying memorandum the court recited its efforts to settle the questions at issue, and the passage of the decree, "which was considered self-explanatory," and the consideration given by the court to the case, and announced that the parties being unwilling or unable to settle their dispute for themselves under the injunction as it had been worded, the duty was forced upon the court to impose more definite limits upon Evans.  He was therefore restrained from planting oysters so close to the Stinchcomb shore as to violate the injunction previously ordered, "that is to say, from planting oysters or oyster shells at any point closer than five and one-half (5 1/2) feet from the plaintiffs' shore line at medium low tide." And he was ordered to remove within [***5]thirty days any oysters or shells planted within the protected zone subsequent to the date of the original injunction. Evans' appeal followed.

   [*485] The record in the case does not permit the court to say that there was no sufficient hearing on the proceedings for the attachment. It appears that a hearing was ordered, and witnesses on Evans' behalf were summoned; and from a memorandum opinion filed by the chancellor it appears that "the case was again considered by the court in the presence of counsel for both sides." The statements and allegations in the defendant's answer, which he wished to support by testimony, were accepted as true, but would seem to require only the more exact definition of the injunction. These recorded facts fail to show that the appellant was denied any proper hearing.  If Evans' witnesses were not heard, there appears to have been no dispute of facts to be settled by hearing them.

   The original decree granting the injunction was one for the conservation in the future of the rights ascertained, and an injunction issued under such a decree is, on an application for an attachment, necessarily open to some change to meet intervening circumstances.  Exact[***6] compliance with the injunction in its previous form may have been rendered impossible or undesirable, and experience may have shown the need of clarification.  An order making the injunction readily enforceable, if within the limits of the relief prayed in the bill and intended to be accomplished, is proper without new proceedings.  Emergency Hospital v. Stevens, 146 Md. 159, 166, 126 A. 101; Dawes v. Thomas, 4 Gill 333, 339; Note 68 A. L. R. 1180. The decree here first left it to the parties to remove the interference complained of, but the effort at adjustment by that means failed.  The chancellor found that for want of a more specific direction in the original injunction, an intentional violation could not be found, and that the court must itself specify what would constitute compliance.  This it did, and it was within its power to do so without further proceedings.

   Order affirmed, with costs. 

J. MILLARD TAWES, Comptroller of Maryland, v. HOME OWNERS'LOAN CORPORATION OF WASHINGTON, D. C. 
No. 79, October Term, 1941
 
Court of Appeals of Maryland
 
180 Md. 401; 24 A.2d 781; 1942 Md. LEXIS 158

 March  3, 1942, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Order reversed with costs.

CORE TERMS:  deed, mortgage, grantee, clerk, recordation, exempt, comptroller, recording, demurrer, grantor, writ of mandamus, purchase money, purchasers, recorded, refund, demurred, real estate, purchase-money, loaned, dealer

COUNSEL: Hall Hammond, Deputy Attorney General, and Robert R. Bowie, Assistant Attorney General, with whom was William C. Walsh, Attorney General, on the brief, for the appellant.

   Philip B. Perlman, with whom were John I. Rowe and William R. Burns on the brief, for the appellee.

JUDGES: Sloan, Johnson, Delaplaine, Collins, Forsythe, and Marbury, JJ.  Sloan, J., delivered the opinion of the Court.

OPINIONBY: SLOAN

OPINION: [*402] [**781] This appeal is from an order of the Circuit Court for Anne Arundel County sustaining a demurrer of the plaintiff [*403] to the defendant's answer to the plaintiff's petition for a writ of mandamus which ordered the clerk to issue the writ as prayed.

   The plaintiff is the Home Owners' Loan Corporation, a corporation of the United States; the defendant, J. Millard Tawes, Comptroller of the State of Maryland.  The plaintiff filed its petition for a writ of mandamus to compel the defendant to refund certain recordation taxes and taxes on conveyances paid by the plaintiff to clerks of courts all over the State, which had in turn been paid by such clerks to the[***3] comptroller, amounting to $3,034.80.  The plaintiff claimed that it was exempt from these taxes under the Home Owners' Loan Act of Congress of 1933, 12 U. S. C. A., Sec. 1461 et seq.
 
   The petition stated that the amount of taxes which had been paid by the plaintiff on deeds and mortgages amounted to nearly $10,000, all paid under written protest, but necessary to be paid and stamps attached before the deeds and mortgages would be accepted for recordation. That on March 12, 1938, the plaintiff filed a petition in the Baltimore City Court against M. Luther Pittman, Clerk of the Superior Court of Baltimore, to compel him to record a certain mortgage to the plaintiff without payment of the tax of 10 cents for each $100, or fractional part thereof, of the principal debt, and the charge of 50 cents recordation tax for each instrument, as provided for by the Act of 1937 (Sp. S.), Ch. 11, Secs. 220, 221.  [**782] Code, 1939, Art. 81, Secs. 220, 221.  From a decision favorable to the plaintiff, the defendant appealed to this court, and the order of the trial court affirmed.  Pittman v. Home Owners' Loan Corporation, 175 Md. 512, 2 A. 2d 689. An appeal was taken to the United States [***4]Supreme Court, and the decision of this court affirmed.  308 U.S. 21, 60 S. Ct. 15, 84 L. Ed. 11, 16, 124 A. L. R. 1263. All that was involved in that case was an original mortgage to the Home Owners' Loan Corporation, from the payment of any tax on which it was held to be exempt. After that decision the Comptroller of Maryland refunded to the Home Owners' Loan [*404] Corporation the sum of $6,586.65, the aggregate of all taxes on the principal of all mortgages and on the consideration of all deeds taken by it and the 50-cent recordation tax, on the advice of the attorney general, who advised him that the corporation was exempt from the payment of any tax on deeds and mortgages to it, but that he should not refund the taxes on deeds from the corporation to private individuals or corporations.  He accordingly retained the sum of $3,034.80 of all such taxes claimed by the corporation.  Thereupon the corporation again filed a petition for the writ of mandamus to compel the comptroller to refund the money so retained by him.  The comptroller demurred and from an order overruling his demurrer, he answered; the corporation demurred to the answer, and from an order sustaining[***5] the demurrer, the defendant appeals.

   In the opinion of this court, the demurrer to the corporation's petition should have been sustained.

   In its petition the corporation said it had loaned in the State $45,579,033, secured by 15,940 mortgages; and since the closing of its refinancing loans, it had acquired title to more than 3,000 separate parcels of real property, and in the resale it was necessary frequently to take purchase-money mortgages to secure the purchase money, and that when deeds to the purchasers were executed and mortgages taken from them, it was necessary for its protection to have the deed recorded before the mortgage, and the tax on the deeds and the 50-cent recordation fee were demanded before the clerks would accept the deeds for record.  It was not disputed, in fact conceded, that when any purchasers paid for such property in full in cash, the deeds were delivered, and the tax on such deeds was no concern of the corporation.  So what is the difference whether the purchase money is paid in cash, part cash and part mortgage, or all mortgage? If, in one case, it is the grantee who must pay the tax to get his deed on record, why not the others?

   The Pittman Case, [***6]  supra, did not have the same facts or question presented as here.  There the only question [*405] was the right of the clerks in this State to require the mortgagee, the Home Owners' Loan Corporation, to pay the two taxes required by the Act of 1937, before the clerks could accept the mortgages for record.  Here the question is whether it is a tax imposed on the corporation when, for its own protection, it pays the tax on its deeds to its purchasers, as any other prudent real estate dealer or agent would do, and the Home Owners' Loan Corporation is now a real estate dealer in a large way.

   In the Pitman Case, supra, this court followed the decision in Federal Land Bank of New Orleans v. Crosland, 261 U.S. 374, 43 S. Ct. 385, 67 L. Ed. 703, 20 A. L. R. 1, which was an appeal from 207 Ala. 456, 93 So. 7. In that case the State of Alabama had a statute imposing a recordation tax of 15 cents on each $100 of the principal sum secured to be paid for by the lender, with a penalty on any probate judge receiving a mortgage for record without collecting the "recording or registration tax," and it was there held that the Federal Land Bank of New Orleans was exempt from the[***7] payment of the tax.  Our statute, Code, 1939, Art. 81, Sec. 220, imposes a tax on deeds and mortgages, but is silent as to the person who should pay it.  It says that the clerks shall collect the tax "for each instrument offered for record and recorded." The presentation for record is the act of the grantee, and the tax is based on the actual consideration paid or loaned. Section 220 exempts all purchase-money mortgages, which is meaningless as to the appellee's mortgages since the decision in the Pittman Cases, by which the appellee is exempt anyhow, and since then, no demand has been made for the payment of the tax on any of its mortgages. The practical reason advanced by the appellee for the avoidance of the tax on deeds made by it is that the properties are frequently sold at a loss.  It is conceded that if the consideration for the deeds is paid to the appellee in [**783] full that the grantee would be obliged to pay the tax before his deed would be received for record, whether the land be sold at a profit or loss.  The appellee may see that both deed and [*406] mortgage are presented for record, but in theory, at least, it presents the deed for record as the agent[***8] of the grantee. When a deed is presented for record it is the grantee's deed, not the grantor's. The latter has parted with it, even if it did take it to the court house for record, and there is no provision in the law that the grantor pay the tax.  It is proper to assume that the grantor has added the recording fees and taxes to the expense and collected from the grantee.

   Entertaining this view, it is unnecessary to discuss the question of the application of Section 32, Article 3 of the Constitution of Maryland (Red Star Line v. Baughman, 153 Md. 607, 611, 139 A. 291), nor of the Act of 1941, Ch. 701.

   For the reason that no tax is imposed on the petitioner, appellee, for deeds from it, the order appealed from should be reversed.

   Order reversed with costs. 

MORRIS LEGUM v. FARMERS NATIONAL BANK OF ANNAPOLIS 
No. 16, January Term, 1942
 
Court of Appeals of Maryland
 
180 Md. 356; 24 A.2d 281; 1942 Md. LEXIS 151

 February  5, 1942, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Order reversed and case remanded for further proceedings in accordance with this opinion, costs to be paid by the appellee.

CORE TERMS:  settlement, satisfaction, stricken, demurrer, motion to strike, third party, collection, owed, pressed, confessed judgment, appeal lies, afterwards, mortgages, gone, right of appeal, reinstated, satisfaction of a judgment, satisfaction of judgment, final disposition, judgment creditor, power to strike, judgment debtor, quasi equitable, agreed to pay, third parties, amount paid, separately, conveyances, refinance, struck

COUNSEL: Louis Mitnick for the appellee.

   R. Tilghman Brice, III and George E. Rullman for the appellee.

JUDGES: Bond, C. J., Sloan, Delaplaine, Collins, Forsythe, and Marbury, JJ. Marbury, J., delivered the opinion of the Court.

OPINIONBY: MARBURY

OPINION: [*357] [**281] A judgment debtor appeals from[***3] an order of court striking out an order of satisfaction of a judgment against him. The order of satisfaction was filed on April 22, 1941, and the petition to strike was filed on July 18, 1941, which was within the term of court in which the order was filed.  A combined demurrer and answer was filed to the petition to strike out, testimony was taken, and on August 7, 1941, the court passed the order from which this appeal was taken.

   [**282] A motion is made by the appellee to dismiss the appeal on the ground that the lower court was acting within its discretion in striking out an order of satisfaction where the motion to strike was filed during the term and therefore no appeal lies. The appellee's theory is that the rule, with respect to striking out orders of satisfaction, is the same as that with respect to striking out judgments.  The situation in the two cases, however, is entirely dissimilar, and the judgment rule does not apply.

   [*358] In a recent case (Silverberg v. Dearholt, 180 Md. 38, 22 A. 2d 588) this court quoted with approval the statement of this rule in Poe's Practice, Vol. II (Tiffany Edition, Par. 389), to the effect that where the motion to strike[***4] is made within the term and is granted, no appeal lies at the instance of the plaintiff because such order is not a final disposition of the case, but leaves it on the docket to be legally heard in due course, and therefore no substantial injury is done to the plaintiff.  The rule is otherwise in cases where the defendant appeals from an order refusing to strike out a judgment.  In the early case of Hall v. Holmes, 30 Md. 558, this court said: "But the case is very different where the motion to strike out the judgment is overruled by the court; for then the liability of the defendant is fixed and determined, and his right of appeal accrues, without which he would be entirely remediless.  From orders overruling motions to strike out judgments, we are clearly of opinion that appeals lie, whether the motions be made during the same term, or at a term subsequent to that at which the judgment was rendered." See, also, Merrick v. Baltimore & Ohio Railroad Co., 33 Md. 481; Montgomery v. Murphy, 19 Md. 576, 81 Am. Dec. 652; Powhatan Steamboat Co. v. Potomac Steamboat Co., 36 Md. 238; Johnson v. Lemmon, 37 Md. 336; and Wainwright v. Wilkinson, 62 Md. 146.

   When an[***5] order of satisfaction is stricken out, the situation is similar to that in the last mentioned class of cases.  The defendant is left with a judgment against him, which may be a lien upon his property, and upon which process may issue against him.  His rights have been fixed and determined so far as the lower court is concerned.  If he had no right of appeal, he would be entirely without remedy.  The motion to dismiss the appeal in this case will therefore be denied.

   The testimony showed that in the early part of 1941, the appellant was in a situation where he owed approximately $60,000 to various people secured by judgments and other liens.  He was endeavoring to refinance. He [*359] owed the appellee over $33,000 on two deeds of trust, the confessed judgment which was stricken out, two mortgages, and two notes.  An arrangement was made by him to refinance, and a settlement was made on April 21.  At that settlement, the appellee presented its statement of account showing separately the several obligations on which the defendant was indebted, the principal, interest and costs of each of these being totaled separately and correctly, but the grand total was shown as $33,155.06, [***6] when it should have been $33,691.06, a difference of $536.  The settlement went through on the basis of the erroneous total.  This amount was given to the appellee, and in exchange it canceled all of its claims, giving, among other things, the order of satisfaction for the judgment in question.  This was a confessed judgment which had been entered on April 17, 1935, for $5,000, with $500 attorney's collection fee, interest and costs.  There had been a credit of $500 on account of this judgment, leaving the balance due on it, including interest, costs and attorney's fees, $5,232.25.  The error was discovered the following morning, and promptly reported by the appellee's attorney to the attorney for the appellant.  Meanwhile, the settlement had gone through, mortgages and conveyances had been given by the appellant, and the rights of third parties had attached.  When the appellant was told about the matter, he told the attorney for the bank that if there was a mistake he would take care of it, and by his own admission he said, "I said let it stay.  I will talk over the matter with you.  If it is a mistake, I will pay it." Relying on this statement, no action was taken until July[***7] 18, 1941, when, no settlement having been made, the motion was filed.  The court overruled the demurrer of the appellee, and struck out the order of satisfaction without prejudice to the mortgages and conveyances which had been made to third parties on the day of the settlement.

   The ground of the demurrer was that the court had no jurisdiction, as the cancellation of an instrument is a matter [**283] to be passed on in an original equity proceeding.  [*360] This was not pressed at the argument in this court.  It could not have been successfully contended in view of the case of Wilmer v. Brice, 91 Md. 71, 46 A. 322, where an application was made to strike out an order of satisfaction, and this court said: "What is sought by Brice is to have the judgment reinstated, but reinstated without prejudice to the rights of other secured creditors of Wilmer, if the liens of these latter creditors were obtained during the period that the judgment was entered satisfied.  That the court has, upon such an application as this, the undoubted power to grant the relief asked, if the facts justify it, cannot be disputed. It has been so held repeatedly." It may also be mentioned that this[***8] is a case at law, in which demurrers are waived if other pleadings are filed.  The fact that the court is acting in a quasi equitable manner does not alter this rule.

   The error was in the total addition of all seven items of indebtedness of the appellant to the appellee, and was not allocated to any one item in the list. No request was made to strike out other orders of satisfaction or release or settlement. However, all of the items were due to the appellee, and in the absence of full payment and in the absence of specific direction by the debtor, the appellee could apply the payment to any of its claims it desired, and could therefore pick out the one which was not paid in full.  Neidig v. Whiteford, 29 Md. 178; Dickey v. Permanent Land Co., 63 Md. 170; Maryland Jockey Club v. State , 107 Md. 262, 68 A. 613. That is something about which the appellant has no right to complain.

   The appellant contends that an item of $500 in the judgment in question is erroneous because it is a collection fee allowed by the note.  It has not been paid by the appellee to its attorney, and the appellee has not, apparently, so far, agreed to pay it to anyone.  However, the appellant[***9] agreed in his note, which is the basis for the judgment, to pay such a charge, and is it payable by him to the appellee by way of indemnity for employing an attorney to collect the debt.  Webster v. People's Loan, Savings & Deposit Bank, 160 Md. 57, 152, A. 815.  [*361] It is not to be presumed that the appellee will not pay this money, when collected by it, to its attorney.  If it does not, the attorney is the one to complain.  The appellant is not now in any position to raise a question about it.

   Some attempt is made to show that there was a dispute about the right of the appellee to collect this fee.  This seems to have been an afterthought, and not to have entered into the question of the settlement. In the statement presented, the fee is clearly shown, and that statement was the basis of the settlement. The appellee did not object to the fee at that time, but paid the total demanded of him, and the reason that he did not pay enough was not a dispute about any particular item, but a mistake in the adding of all the items.  The facts are very similar to those in the case of Wilmer v. Brice, 91 Md. 71, 46 A. 322, 323, above referred to, and in that case the court[***10] said: "If a mistake was made in entering the judgment satisfied, if Wilmer has not repaid Brice what he justly and incontestably owed him on the judgment, if no third party will be injuriously affected by the entry being stricken out, and if the court has the power to strike it out, why should the relief sought be denied? It is but common honesty that the debtor should pay his creditor, and it is far from equitable that the latter should be defeated upon sheer technical grounds, wholly devoid of even the semblance of merit."

   It is true that no evidence was presented that the appellant would have been able to make his settlement, had the demand of the appellee been for the correct amount.  The appellant's attorney said that it was impossible for him to say whether the settlement would have gone through with the additional $500.  In his opinion, the man refinancing the appellant had been pressed so far that he would not have been pressed any further.  However, if the settlement had not gone through, the order of satisfaction would not have been given.  In such case, there would be no theory upon which the appellant could claim any right to its delivery and use.  If he had not [*362] [***11] been able to make the settlement upon the correct figures, the judgment would have been left standing, and that is exactly what the court did with it.

   The court below struck out the order of satisfaction without prejudice to the third party rights afterwards acquired, but it did not protect the appellant by requiring credit to be entered for the amount paid in the settlement to the appellee, over and above its claims on the other six items.  We [**284] think this should have been done, and that the order of satisfaction should not have been stricken out until the appellee filed an order giving credit to the appellant for the payment of $5,232.25, less $536, or $4,696.25.  It will, therefore, be necessary, for this reason and for this reason alone, to reverse the order of the lower court and to remand the case for passage of an order subsequent to the entry of the credit by the appellee.

   Order reversed and case remanded for further proceedings in accordance with this opinion, costs to be paid by the appellee. 

GRACE HART, et al. v. MERCANTILE TRUST COMPANY OF BALTIMORE,ETC. 
No. 81, October Term, 1941
 
Court of Appeals of Maryland
 
180 Md. 218; 23 A.2d 682; 1942 Md. LEXIS 132

 January  13, 1942, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Boylan, J.

DISPOSITION: Decree reversed, and cause remanded for a decree to be passed in accordance with this opinion, costs to be paid out of the estate.

CORE TERMS:  daughters, testator, legatee, compromise agreement, rate of taxation, bequeathed, decedent, legacy, taxed, settlement, decree, renunciations, inheritance tax, pecuniary legacies, residuary legatee, residuary estate, real estate, caveat, distributee, pecuniary, executor, ratified, resident, annuity, assign

COUNSEL: J. Royal Tippett, Jr., with whom were Carlyle Barton and Robert MacGregor on the brief, for the appellants.

   Hall Hammond, Deputy Attorney General, with whom was William C. Walsh, Attorney General, on the brief, for the appellee.

JUDGES: Bond, C. J., Sloan, Johnson, Delaplaine, Collins, Forsythe, and Marbury, JJ.  Bond, C. J., delivered the opinion of the Court.

OPINIONBY: BOND

OPINION: [*219] [**683] The question is whether a testator's children, caveators of his will, who received an additional part of his estate by virtue of a compromise agreement with a legatee corporation, are to be taxed on that part at the rate fixed for assets passing to children, 1 per cent., or at that on assets passing to a corporate distributee, 7 1/2 per cent.  Article 81, Section 109, of the Code provides that a tax of 1 per cent. is levied and imposed on every one hundred dollars of the clear value of any property "passing at the death of any resident" to children of such decedent. And Section [***3]110 of the same Article provides the tax of 7 1/2 per cent. on such property "passing at the death of any resident" to other than the father, mother, husband, wife, children or lineal descendants of the decedent.
 
   The will of Walter H. Hart, of Annapolis, who died on March 21, 1937, gave certain specific and pecuniary legacies, among them an annuity of $200 per month to each of his two daughters for ten years should she live so long, and then gave and bequeathed the residuary estate to the Salvation Army, a corporation, specifying the use it should make of the fund.  The will was duly admitted to probate, and subsequently the daughters filed a petition and caveat to it.  Before the issues were tried in the Circuit Court for Anne Arundel County the residuary legatee named, the daughters and the executor, entered into an agreement compromising the dispute, and providing that to effectuate it the will should be judicially determined to be valid, and an order sustaining it should be entered by the Orphans' Court of Anne Arundel, that the pecuniary and specific legacies [*220] should be paid, that sufficient real estate in the assets should be sold to raise money for the necessary[***4] payments and distributions, that the daughters should assign to the Salvation Army all their right and interest as legatees, devisees or annuitants, and that the Salvation Army should then receive the remainder of the real estate as sole residuary legatee, pay taxes and expenses, retain $25,000, and convey and assign one-half of the net estate, not exceeding $100,000, to the daughters as tenants in common.  A verdict sustaining the will was then entered in pursuance of the agreement.

   Judge Linwood L. Clark, who in a clause of the will bequeathing him a specific legacy had been requested to see that the will was faithfully carried out with justice to everyone, filed in the Circuit Court in equity a bill of complaint seeking assumption of jurisdiction of that court for the purposes of settlement of the estate, instructions to him for proceeding upon the request, and ratification of the agreement made; and the court ratified the agreement and retained jurisdiction for settlement and distribution according to its terms. As stated in an opinion filed in that proceeding, it was determined that the compromise agreement was entered into in good faith, to settle a dispute in which the interests[***5] of the respective parties were jeopardized, and not in a conspiracy to destroy a testamentary purpose.

   Upon a threat of payment to the Register of Wills of Anne Arundel County of the tax of 7 1/2 per cent. on the whole amount bequeathed originally to the Salvation Army that corporation and the daughters of the testator have filed a bill seeking a declaratory judgment, Code, 1939, Art. 31A, Sec. 1 et seq., determining the question of the rate of taxation now in controversy.  The executor was made respondent and the Register of Wills intervened.  The decree below fixed the tax payable at 7 1/2 per cent. on the full amount bequeathed to the Salvation Army, and the beneficiaries appeal.

   The question is a new one in this court, except that in Bouse v. Hull, 168 Md. 1, 7, 176 A. 645, a case in which [*221] the amounts of pecuniary legacies to corporations fell by renunciations into the residuum of the estate given to direct descendants, it was held that the collateral inheritance tax of 7 1/2 per cent. could not be collected on those amounts; and that decision was in effect that the disposition under the terms of the will did not fix the rate of taxation, irrespective of subsequent[***6] change in the passing of the estate as a result of the renunciations. The reason stated was that nothing passed to the pecuniary legatees within the meaning of the statute if they did not accept the legacies, and the tax was laid upon distributive shares received. Here the Salvation Army did, in form, accept its legacy [**684] and devise, but in performance of a compromise agreement that the portions specified should pass to the daughters, renouncing in effect so much of the gift, but yielding it specifically to the daughters.

   The question itself is clear, but courts of the country which have considered it under somewhat varying statutes have disagreed in the answer.  The decisions are sufficiently reviewed in an annotation in 78 A. L. R. 716, and an article in the magazine "Taxes" of June, 1941.  Courts in one group have taken the view that, according to the intention of the statutes, the property to be taxed passes under such an agreement in accordance with the terms of the will, that the tax is fixed at the date of the testator's death, that the assignment by the legatee named is a subsequent action outside of the administration and distribution of which the law takes[***7] cognizance, and, therefore, the rate of taxation is to be ascertained from the disposition in the will.  Other courts have reasoned that the statutes have imposed the tax on the property received under the agreements intervening and controlling the distribution, that the intention has been to tax property which in any manner passes to persons of the one specified class or the other, those related to the decedent as specified and those not so related.  And those courts have fixed the tax at the lower rate for relatives taking.

   [*222] This court, differing from the chancellor, takes the second view. If the form of the settlement be adhered to, if we look no further than the verdict and order which delivers the whole legacy to the Salvation Army, it would follow that the rate of taxation should be 7 1/2 per cent. on the whole. But that disposition would not, as it seems to us, go to the substance of the distribution as it is exhibited to the court.  The Maryland statutes cited are concerned with the persons who receive portions of the testator's estate in distribution.  Bouse v. Hull, supra. All the courts by which this will and its administration have been considered, have[***8] had before them the fact that, whatever the form adopted for effectuating it, the distribution was to be controlled by the agreement, and that distribution was found valid, and has been judicially ratified. As it was in fact the primary distribution of the estate that was made under the agreement the form seems indecisive.  We think the better reason requires that the daughters be recognized as the distributees of the portion passing to them as a result of the agreement, and that the rate for taxation of that portion be fixed at 1 per cent.  All that the Salvation Army receives by assignment from the daughters should by the same reasoning, be taxed 7 1/2 per cent.

   The court is not unaware of the danger that agreements might be made which, following this solution of the problem, would by a merely pretended change in distribution defraud the State of the greater amount of taxes due it upon the actual distribution.  It is a danger which does not seem great, but, however that may be, the solution adopted appears to this court more in conformity with the purpose of the statutes, and frauds can be dealt with when they are practiced.

   Decree reversed, and cause remanded for a decree to [***9]  be passed in accordance with this opinion, costs to be paid out of the estate. 

JAMES A. BROWN JR., ET UX. v. ETHEL V. WEILAND, ET AL. 
No. 80, October Term, 1941.
 
Court of Appeals of Maryland
 
180 Md. 691; 1942 Md. LEXIS 199
 
 January  13, 1942, Decided

   PRIOR HISTORY: [**1]

   Appeal from the Circuit Court for  Anne Arundel  County.  Action in ejectment by Ethel V. Weiland and others against James A. Brown, Jr., and wife, for wrongfully ousting the plaintiffs from their undivided 25/27th interest in certain real estate.  From an adverse judgment, the defendants appeal, and subsequently applied to the trial judge to have the record removed to the Court of Appeals "as upon writ of error." Proceeding in the nature of a writ of error dismissed, with costs.

COUNSEL:  Linwood L. Clark for the appellants.

   Louis M. Strauss and William W. Townshend, Jr., for the appellees.

OPINIONBY: DELAPLAINE

OPINION: [*692] DELAPLAINE, J., delivered the opinion of the Court. 

ROBERT Y. McGLAUGHLIN v. EDWIN WARFIELD, Jr., et al. 
No. 44, October Term, 1941
 
Court of Appeals of Maryland
 
180 Md. 75; 23 A.2d 12; 1941 Md. LEXIS 194

 December  3, 1941, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Order affirmed, costs to be paid by the appellant.

CORE TERMS:  crab, subject matter, sub-title, fish, water, constitutional provision, exact, crab pot, designating, incorrectly, correctly, scrape, catch, accomplished, effected, An Act, proposed legislation, reasonable doubt, enacting clause, proper place, vital part, conformity, invalidate, designated, contravenes, draftsman, disposed, hatcheries, stricken, subtitle

COUNSEL: V. Calvin Trice, with whom were Harrington and Harrington on the brief, for the appellant.

   William C. Walsh, Attorney General and Hall Hammond, Deputy Attorney General for the appellee.

JUDGES: Bond, C. J., Sloan, Johnson, Delaplaine, Collins, Forsythe, and [***3]Marbury, JJ.  Forsythe, J., delivered the opinion of the Court.

OPINIONBY: FORSYTHE

OPINION: [*76] [**13] The appeal in this case involves the question of the constitutionality of Chapter 408, of the Act of 1941 of the General Assembly of Maryland, codified as Sec. 99A, Art. 39, Flacks' Code, 1939.

   [*77] The appellant, Robert Y. McGlaughlin, filed a bill of complaint in the Circuit Court for Anne Arundel County, in which it was alleged that he is a resident of Dorchester County, State of Maryland, and was the holder of a license, duly issued by the Clerk of the Court of Dorchester County, entitling him to take or catch crabs by any of the methods at that time in use, including scrape nets, dip nets or trot line; that during the year of 1941 he had "continued to take or catch crabs by means of what is called a 'crab pot,' being one of the methods of taking crabs recently used as mentioned in section 105 of Article 39 of the Code."
 
   The bill then alleges that the appellant has been prevented from using the crab pot, by threats of the officers of the appellee, the Commission of Tidewater Fisheries, who have given notice to all crabbers that a crab pot cannot be used, and if one[***4] is found in use, it will be seized, and the user prosecuted.

   The bill then charges that the appellee, in thus attempting to prevent the use of crab pots, is acting under the authority of the said Act of 1941, Chapter 408.  A demurrer to the bill was sustained, and the bill was dismissed.

   The appellant contends that the Act of 1941, ch. 408, is unconstitutional in that it violates the mandate of the Constitution of Maryland, Article III, Section 29, that "every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title."

   The Title of the Act is, "An Act to add a new section to Article 39 of the Annotated Code of Maryland (1939 Edition), title 'Fish and Fisheries,' sub-title 'Crabs,' said new section to be known as Section 99A and to follow immediately after Section 99 of said Article, to permit the taking of crabs by certain devices."

   The exact text of the Act is that: "It shall be lawfull for any person or persons to take or catch crabs by scrape, dip net and trot line in any of the waters of the State and in no other manner or by any other means, [*78] except that in Kent and Queen Anne's Counties soft crabs may be taken by [***5]means of a hand-drawn net scrape." The Act provides a penalty for its violation, and exempts four bodies of water, none of which are involved in this case.

   Ever since the adoption of our present constitution, many cases have been before this Court in which the requirement of Article III, Sec. 29, of the Constitution has been invoked, under varying circumstances, in efforts to have Acts of the General Assembly declared unconstitutional.

   In accordance with the great weight of authority in this country, this Court has consistently held that the purpose of the constitutional provision here invoked is sufficiently complied with if the title of the proposed legislation fairly advises the General Assembly, and the public, of the real nature, and subject matter, of the legislation sought to be accomplished, and in testing conformity of a title of a statute to constitutional requirements that the subject should be described in the title, the courts are disposed to uphold rather than to defeat the statute, and since every presumption favors the validity of a statute, it cannot be stricken down as void, unless it plainly contravenes a provision of the Constitution; a reasonable doubt in its[***6] favor is enough to sustain it.  State v. Norris, 70 Md. 91, 16 A. 445; Levin v. Hewes, 118 Md. 640, 86 A. 233; McCurdy v. Jessop, Warden, 126 Md. 318, 95 A. 37; Painter v. Mattfeldt, 119 Md. 466, 472, 87 A. 413; Hiller v. State, 124 Md. 385, 389, 92 A. 842; Thrift v. Laird, 125 Md. 55, 93 A. 449; Leser et al. v. Lowenstein, 129 Md. 244, 98 A. 712; Ruehl v. State, 130 Md. 188, 194, 100 A. 75; Keiningham v. Blake, 135 Md. 320, 322, 109 A. 65, 8 A. L. R. 1066; Weber, Mayor, v. Probey, 125 Md. 544, 551, 94 A. 162; Grossfeld v. Baughman, 148 Md. 330, 129 A. 370; Parlett Co-Operative v. Tidewater Lines, 164 Md. 405, 165 A. 313; Norris v. Mayor and City Council of Baltimore, 172 Md. 667, 192 A. 531; Board of Education v. Wheat, 174 Md. 314, 199 A. 628; 11 American Jurisprudence, p. 776, Sec. 128, and note 20.

   [*79] The Act here in question is a separate law, designed to cover all waters of the State, except the four bodies of water exempted.  It is expressly provided that it [**14] was to become a part of Article 39, which is set apart in the Code of Public Laws entitled "Fish and Fisheries," subtitle "Crabs." It is[***7] not stated in the title, or in the enacting clause, that the Act is to be an amendment of any existing provision of Article 39.  But it is expressly stated in both the title, and in the enacting clause, that it was to be a new section to be added to the Article.  It does not state that it repeals, and re-enacts any other section of the Article dealing with that subject.

   The appellant contends that the Act is invalid because it was provided that it be designated as Section 99A, to follow Section 99 in Article 39.

   Section 99 of Article 39, as codified in the Code of 1939, appears under the sub-title "Deep Creek Lake." That section authorized the establishment of fish hatcheries on the waters of that area, and has nothing to do with crabs. Three more Sections follow Section 99, and then follows the Sub-Title "Crabs."

   Section 99A, dealing with the methods of taking crabs, is entirely out of place following Section 99, dealing with fish hatcheries. A mistake was made by the draftsman of the statute in designating Section 99A to follow Section 99, instead of to follow a Section under the Sub-title "Crabs," with an appropriate number.  It is obvious how the mistake happened, and[***8] possibly how it was unavoidable.  From an examination of the 1935 Supplement to the Code, it will be found that in Article 39, the sub-title of "Deep Creek Lake" contained Sections 81 to 92, inclusive, and the Sub-title "Crabs" begins with Section 93, and ends with Section 101.  Section 99 of the latter subtitle deals with the same matter as section 111 of the new 1939 Code.  Therefore, prior to the appearance of the new 1939 Code, Section 99A would have been in its proper place. But by reason of new sections added, it now should appear as Section 111A.  The new 1939 Code was not available until late in 1940, and the first copies [*80] went to the courts.  It was not available to the profession until the Spring of 1941.  The Act here involved was the enactment of House Bill 397, which was introduced in the House of Delegates on February 20, 1941, and was passed on March 28, 1941.  House Journal, pp. 532, 2111.  Without the new Code, the draftsman of the Act could not well avoid the mistake which is responsible for any confusion in the Section, and sub-title, of this Act.

   In this case the appellant did not contend that the title of the Act here involved violated the constitutional[***9] provision in stating, or in failing to state, the subject matter intended to be dealt with, or that there is anything in the Act inconsistent with, or not germane, to the subject matter mentioned in the title.  His sole contention is that the Act is unconstitutional because it was made "a sub-section of a section that has nothing to do with, and is in no way related to the subject as shown in the body of the Act."

   It is perfectly clear that the subject matter stated in the title, and that contained in the body of the Act, is identical, and not in the slightest degree susceptible of a charge that either the General Assembly, or the public, could be misled, or deceived, as to the exact purpose intended, and accomplished by the passage of the Act.

   The error in incorrectly assigning a wrong section number cannot have the effect of invalidating the Act.  It is a short Act, containing but one section, and from the subject matter, easily can be placed in its proper place, as so often is necessary when the laws are recodified.  Section numbers of an Act are no vital part of the Act itself, "and while of convenience for the purpose of orderly arrangement, or to facilitate the finding of a[***10] particular provision, they are not so essential that their omission or transposition ought to be permitted to set aside completely provisions in themselves clear an unambiguous." Levin v. Hewes, supra, 118 Md. 640, 86 A. 236; State v. Backus Chevrolet Company, 170 Md. 309, 184 A. 160; Sutherland on Statutory Construction , Sec. 410.

   [*81] Appellant cited the case of State v. German Savings Bank, 103 Md. 196, 63 A. 481, 482, in support of his contention that the statute involved in the instant case is invalid.  But a careful study of that case will reveal that the defect found to exist in that case does not appear in the case here under consideration.  In that case, the title stated a new section was to be added to Article 81, title "Revenue and Taxes," under the sub-title "Payment of Taxes by Corporations," the new section to follow section 81A, and to be designated section 81 B.  But in the text of the Act it was referred to as Section 86 B, to follow Section 86A.  It was very important, in that case, [**15] to state the exact section intended to be effected, because Section 86B amended Section 86A, and it was necessary to read the sections together to discover[***11] what change was intended, or effected. In the opinion in that case, this Court said: "We have then before us the question of the validity of an attempt to declare inoperative, as to a large number of corporations, the provisions of an important section of the Code by an Act whose title neither indicates its contents nor correctly mentions the section of the Code to be affected by it."

   The case here presents an entirely different situation.  The title and text of the Act are exactly in accord as to the subject matter of the legislation, and correctly designates the Article.  The mere mistake of incorrectly designating the number, and place of the new Section, is not sufficient, under the authority herein cited, to invalidate the Act.

   The order of July 22, 1941, sustaining the demurrer, and dismissing the bill of complaint, will be affirmed.

   Order affirmed, costs to be paid by the appellant. 

ALFRED W. PHILLIPS v. M. CLARE M. GREEN, Executrix 
No. 13, April Term, 1941
 
Court of Appeals of Maryland
 
179 Md. 583; 19 A.2d 839; 1941 Md. LEXIS 161

 April  30, 1941, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Orphans' Court for  Anne Arundel  County.

DISPOSITION: Motion to dismiss appeal overruled; order appealed from reversed, and petition for the allowances to prospective witnesses dismissed, with costs to appellant to be paid out of the estate.

CORE TERMS:  orphans', attendance, allowance, premium, renewal, caveat, taxed, clerk, distributive share, failed to prove, conferred, caveator, attended, waived, acquired knowledge, motion to dismiss, order appealed, final account, final action, one year, executors, determinable, certificate, exceptant, tribunal, plainly, prayed, notice

COUNSEL: George B. Woelfel for the appellant.

   M. Clare M. Green and Richard E. Langford for the appellee.

JUDGES: Bond, C. J., Sloan, Johnson, Delaplaine, Collins, and Forsythe, JJ. Johnson, J., delivered the opinion of the Court.

OPINIONBY: JOHNSON

OPINION: [*584] [**840] This is an appeal from an order of the Orphans' Court for Anne Arundel County passed on January 7th, 1941, overruling and dismissing exceptions filed by Alfred W. Phillips to the allowance of certain items claimed by appellee in her first and final administration account filed in the estate of John L. Phillips.

   Appellee has moved to dismiss the appeal for two reasons, [***3] first, because the items concerned are costs within the meaning of Code Article 93, Section 265, and therefore the Orphans' Court is clothed with the discretion under the statute in awarding them, hence no appeal lies from the exercise of such discretion; second, because the order of appeal from the action of the Orphans' Court was not taken within thirty days as provided by Code Article 5, Section 64.  We will hereafter consider this motion, first stating the facts.
 
   John L. Phillips, a resident of Anne Arundel County, died testate, his last will and testament was admitted to probate and letters testamentary were granted to M. Clare M. Green.  Subsequently Alfred W. Phillips, a legatee and distributee, filed a caveat to the will, issues were framed and transmitted to a court of law for trial.  The trial was held on September 30th, 1940, in the Circuit Court for Howard County, and the answers of the jurors [*585] to the issues submitted resulted in sustaining the will.  A certified copy of the docket entries, including the jury's answers to the issues and the amount of costs taxed in the trial court, was by the clerk thereof forwarded to the Orphans' Court for Anne Arundel County. [***4] It may here be stated that no objection has been made to the allowance of the costs taxed in the trial court, nor to the fact that the Orphans' Court awarded them against this appellant, caveator of the will, and it is conceded that in so doing the Court acted within its exclusive and discretionary powers from which no appeal will lie.  Code Article 93, Section 265; Browne v. Browne, 22 Md. 103; Bantz v. Bantz, 52 Md. 686; Johns v. Hodges, 60 Md. 215; Brown v. Johns, 62 Md. 333; French v. Washington County Home, etc., 115 Md. 309.

   On November 12th, 1940, appellee filed in the Orphans' Court for Anne Arundel County a petition, in which inter alia she alleged that certain named persons attended the trial of the issues in Howard County at the instance of the defendant; that three of them gave testimony in the case, while nine others waived being summoned, but attended the trial to testify on behalf of appellee. In the petition is stated the distance which the potential witnesses lived from Ellicott City, and in one instance that was alleged to be three hundred miles.

   It was also alleged in the petition of the Executrix that she was required to pay a renewal[***5] premium on her bond, because of the delay in the settlement of the estate, pending the trial of the issues.  The part of the petition with which we are concerned prayed the court for an order directing the Executrix to deduct "expenses" to the persons characterized as "witnesses for the caveatee" from the distributive share of the caveator, and the court on November 12th, 1940, passed its order granting the request prayed, that is it attempted to authorize the Executrix to pay nine persons $3.50 each, a tenth $4.00, and eleventh $15.00, and $30.00 to a twelfth and $35.00 for the renewal premium on the bond.  Accordingly the Executrix in her first and final account presented to the [*586] court on November 26th, 1940, claimed allowances for such items, nothwithstanding that none of the potential witnesses mentioned had ever made known their presence to the Clerk of the Court for Howard County by proving their attendance at the trial, in accordance with the requirement of Code Article 35, Section 16, that: "There shall be allowed to each witness attending the circuit courts for the counties or orphans' courts of this State the sum of one dollar for each day such witness shall[***6] attend for the discharge of his duty, besides itinerant charges to be allowed to witnesses coming from other counties; provided, that every such witness shall obtain from the clerk of the court wherein he attended, or from the register of wills, if such attendance was before an orphans' court, a certificate or order showing the amount due him for such attendance, and by whom the same is payable, within thirty days after such attendance shall have been rendered; and the failure to apply for such certificate or order within said time shall be a waiver by the witness of all claim to compensation for such attendance."

   [**841] According to appellee's petition filed in the Orphans' Court for the allowance of the sums previously mentioned, the trial of the issues was held in Howard County on September 30th, 1940, and since her petition was not filed until November 8th, following, it would follow that the parties referred to failed to prove their attendance in Howard County within the time specified by the above quoted statute.

   The final account containing such allowances was passed by the court November 28th, 1940, and not only is there no showing that appellant was informed it would[***7] be presented, but it is as we understand it conceded that he had no notice either of its filing or ratification at the time.  On December 24th, 1940, twenty-six days thereafter, appellant filed exceptions to the allowance of the sum of $35.00 for the renewal premium on bond and also to the sums allowed the various persons as witnesses who failed to prove their attendance at the trial of the [*587] issues.  His exceptions were dismissed by the court on January 7th, 1941, and two days later this appeal was taken.

   The contention that the appeal must be dismissed, because not taken within thirty days from November 28th, 1940, the date of the original allowance, must fail.  The administration account containing the allowances was passed without notice to appellant, and by reason of this circumstances he was entitled to attack the action of the Orphans' Court after becoming aware thereof, and inasmuch as he had no opportunity to object to the passage of the account in the first instance, he has a right after acquiring knowledge of its existence to attack it by instituting proceedings within the time limited for appeals, which is thirty days.  Edwards v. Bruce, 8 Md. 387; Redman [***8]  v. Chance, 32 Md. 42; Rabe v. McAllister, 177 Md. 97, at 108; Hunter v. Baker, 154 Md. 307, at 331; Perrin v. Praeger, Exr., et al., 154 Md. 541, at 549.

   Where exceptions are filed to an account in the Orphans' Court within thirty days after the exceptant acquired knowledge thereof, we think it clear an aggrived party has the right of an appeal within thirty days after the court's final action upon such exceptions, otherwise one could be deprived of his property without ever having his day in court.  The case of Culver v. Cooke et al., 133 Md. 683, cited by appellee as authority to the contrary will upon examination be found not in conflict with anything here said.

   The Court is also of the opinion that the facts in the case relating to the questioned items are such as to make Section 265 of Article 93 inapplicable, for here we are dealing not with the power of the Orphans Court for Anne Arundel County to award costs, a matter concededly within their exclusive discretion, but the fundamental question is, are the items before us "costs" as the term is there used?  That inquiry must, we feel, be answered in the negative, since obviously the costs incurred upon trial[***9] of the issues are determinable by the Circuit Court for Howard County, and since the proposed witnesses [*588]failed to prove their attendance in that forum and had not proved such attendance within thirty days from the date of the trial claims to any fees for attendance are waived under the Code provision above quoted.  It follows that the motion to dismiss the appeal must be overruled.

   In discussing the motion to dismiss, we have necessarily dealt with the case to such an extent factually that further statement concerning it is unnecessary and there now remains only for consideration the propriety of the court's action (a) in allowing the items claimed for potential witnesses, and (b) the sum of $35.00 for renewal premium on appellee's bond.
 
   In support of the allowance made by the Orphans' Court for the persons referred to by appellee as witnesses, it is urged that the order should not be disturbed, because of the presumption that the court acted correctly, but such presumption has no application, except as it relates to acts falling within the jurisdiction of the court.  State v. Talbot, 148 Md. 70; Jones v. Jones, 41 Md. 354.

   And it must be kept in mind that Orphans' [***10] Courts are courts of special and limited jurisdiction and cannot under any pretext exercise jurisdiction not expressly conferred by law.  Code Article 93, Section 272; Norment v. Bryden, 44 Md. 112; Baldwin v. Hopkins, 171 Md. 97; Greenhawk v. Quimby, 168 Md. 396, and cases there cited.

   No jurisdiction has been conferred upon the Orphans' Court to tax costs of another tribunal, and plainly in the situation presented this is exactly what has been [**842] attempted.  No such power being lodged in the Orphans' Court, their action in this respect is plainly erroneous.

   In our judgment no sufficient reason appears to justify a deduction from the amount due appellant the premium on appellee's renewal bond.  Certainly the purpose of the bond is to protect the entire estate and those interested in it, of whom appellant was but one, and it does not follow that the estate would have in all events been closed within one year had appellant failed to caveat the will.  [*589] The premium, therefore, must be regarded as a debt due by the estate.

   For errors on the part of the Orphans' Court (a) in allowing sums claimed by appellee for witnesses whose attendance at the trial[***11] of the issues in the Circuit Court for Howard County was neither proved, nor taxed, and (b) in the allowance to appellee of $35.00 for a renewal premium on her bond, both sums having been deducted from appellant's distributive share of the estate, the order appealed from must be reversed.

   Motion to dismiss appeal overruled; order appealed from reversed, and petition for the allowances to prospective witnesses dismissed, with costs to appellant to be paid out of the estate. 

J. MILLARD TAWES, Comptroller, et al. v. CLARA S. WILLIAMS;CLARA S. WILLIAMS v. J. MILLARD TAWES, Comptroller, et al. 
Nos. 70, 71, October Term, 1940
 
Court of Appeals of Maryland
 
179 Md. 224; 17 A.2d 137; 1941 Md. LEXIS 116; 132 A.L.R.1105

 January  3, 1941, Decided

   PRIOR HISTORY: [***1]  
Appeals from the Circuit Court for  Anne Arundel  County; Melvin, J.

DISPOSITION: Decree in No. 70 reversed and bill of complaint dismissed; decree in No. 71 reversed and bill of complaint dismissed; the costs in both cases to be paid by appellant in No. 70.

CORE TERMS:  declaration, chancellor, income tax, demurrer, comptroller, fiduciary, Declaratory Judgments Act, declaratory judgment, provisions of chapter, statutory remedy, decree, authority to decide, tribunal, codicil, probate, Uniform Declaratory Judgments Act, declaratory decree, right of appeal, actual income, type of case, dissatisfied, overruling, collecting, elaborate, levying, enjoin

COUNSEL: T. Hughlett Henry, and W. Thomas Kemp, Jr., with whom were [***2] Piper, Watkins & Avirett on the brief, for Clara S. Williams.

   William L. Henderson, Deputy Attorney General, and Norwood B. Orrick, Assistant Attorney General, with whom was William C. Walsh, Attorney General, on the brief, for the Comptroller.

JUDGES: Bond, C. J., Parke, Sloan, Mitchell, Johnson, and Delaplaine, JJ. Johnson, J., delivered the opinion of the Court.

OPINIONBY: JOHNSON

OPINION: [*225] [**137] Clara S. Williams, a resident of Talbot County, is a widow with two minor children.  During the calendar year 1939 she received income (a) from the operation of a dairy, (b) from intangible property owned by her, and (c) from a trust created by the will of her late husband, of which a trust company of Pittsburgh, Pennsylvania, was trustee, and as to which she is a life beneficiary in a one-half interest thereof.  In determining the income tax payable by her for the year mentioned under the provisions of chapter 277 of the Acts of 1939 (Code, art. 81, secs. 240-253), she contended (1) that section 244(a) thereof did not apply to her income from the foreign fiduciary trustee; (2) that said section as applied thereto was unconstitutional and void, and (3) that even[***3] through such income were taxable under the Act, it should be treated [**138] as "ordinary" income, as to which she was not taxable at more than two and one half per cent.

   Accordingly, under the provisions of chapter 294 of the Acts of 1939, Code, art. 31A, known as the Uniform Declaratory Judgments Act, she filed her bill of complaint in the Circuit Court for Anne Arundel County, seeking to have her tax status determined and declared and to have section 244(a) declared unconstitutional as to her foreign fiduciary income.  She further sought a declaration, were such income declared to be taxable, to have it treated as "ordinary" income and to enjoin the Comptroller of the State of Maryland, the Attorney General of the State, the State Treasurer, and the County Commissioners of Talbot County, named as defendants in the bill, from levying and collecting a tax thereon exceeding two and one half per cent, and from levying or collecting any tax on "any income from such fiduciary [*226] estate not received by or distributable to" her, and further to enjoin them from compelling her to file a return with respect thereto, or imposing any penalty or interest with respect thereto, pending[***4] final determination of the case.

   The state officials, as well as the Commissioners for Talbot County filed separate demurrers to the bill of complaint, principally upon the ground that it stated no facts entitling the plaintiff to relief under the Uniform Declaratory Judgments Act, Code, art. 31A.  Those demurrers were overruled by the chancellor, whereupon answers were filed by the state officials, as well as the county commissioners, and upon stipulation of the facts by the parties the chancellor passed a declaratory decree, (1) that section 244(a) of chapter 277 of the Acts of 1939 was valid and constitutional as applied to plaintiff's foreign fiduciary income; (2) that such income was to be classified as "investment" income and taxed accordingly, and (3) that plaintiff's income tax under the Act referred to was to be computed upon the actual income she received from the non-resident trustee.

   The plaintiff has appealed from the two declarations first mentioned, while the Comptroller of the State, the remaining state officials having been dismissed, has appealed from the declaration to the effect that her tax was to be based upon the actual income received from the trustee.

   The[***5] first question for consideration relates to the chancellor's action in overruling the demurrers filed by the defendants; while, if that action is found to have been correct, other questions for consideration relate to the correctness of the provisions of the declaratory decree to which reference has been made.

   We will first consider the chancellor's action in overruling defendants' demurrers.

   In Porcelain Enamel & Mfg. Co. v. Jeffrey Mfg. Co., 177 Md. 677, 11 A. 2nd 451, we were dealing with a situation in which a plaintiff under its provisions sought a declaration as to whether one or both of two sub-contractors [*227] caused the delay in the completion of certain work.  We held the Declaratory Judgments Act inapplicable and that the proceeding was not to be used to determine occurrences in the progress of completed contract work; that the Act did not take the place of an ordinary action for damages for a breach of contract, even though information was lacking to the plaintiff as to which of the two contractors caused the delay.

   Later the case of Oursler v. Tawes, 178 Md. 434, 13 A. 2nd 763, was before us, but an examination of the opinion in that case discloses that[***6] the applicability of the Act was neither presented nor considered.

   But at the same time, in Caroline Street Permanent Building Assn. No. 1 v. Sohn, 178 Md. 434, 13 A. 2nd 616, 620, the Act was more thoroughly analyzed and construed than in the other cases brought under its provisions.  While admitting that the view was not universally entertained, we said: "The weight of reason and authority supports the view that the Act is to supplement and not to supersede effective ordinary actions at law or suits in equity.  * * * Thus where there exists an immediate cause of action between the parties for which one of the common remedies of law or equity is adequate and available, a proceeding for a declaratory judgment is not appropriate within the contemplation of the Act."

   In Morgan v. Dietrich, Admr., 179 Md. 199, 16 A. 2nd 916, the plaintiff invoked the provisions of article 31A, and sought (a) a declaration that the defendant was estopped from proceeding with the probate of an alleged third codicil to the last will and testament of Mary E. Walsh; (b) a further declaration that [**139] the paper writing offered as an alleged third codicil to her will was not testamentary in[***7] character.  We affirmed the chancellor in sustaining a demurrer to the bill of complaint, and the principal reason for the holding lay in the fact that the orphans' court had been vested with jurisdiction to admit or refuse probate of the document, and from its action, the plaintiffs were given a right of appeal to this court, thus recognizing the principle that the Act did not apply [*228] to causes as to which the Legislature had provided special tribunals with authority to decide such controversies.

   The same Legislature which enacted chapter 294 also enacted chapter 277.  A consideration of the enactment last mentioned shows the elaborate and specific provisions set up for the trial of issues arising under the income tax statute. In the first instance the comptroller is required to examine and audit the returns of taxables and compute the taxes due by them, and if such computation requires it, he must make an assessment and mail notice thereof to the taxable, who if dissatisfied is given an appeal to the State Tax Commission, which is expressly required to review the assessment on the law and the facts.  If dissatisfied with the decision of the State Tax Commission the taxpayer [***8]may from its findings appeal to the Circuit Court, and from that court a further appeal is given to this court.  It thus appears that the Legislation has in detail specifically designated the manner in which the determination of the amount of income taxes due shall be made.  It therefore appears that the special statutory remedy given by chapter 277 of the Acts of 1939 is exclusive of the general statutory remedy provided by chapter 294.  It would seem most unlikely that the Legislature would have so elaborately provided this special statutory remedy and by enacting chapter 294 have intended to enable a taxpayer at his mere whim to impose the duties of administrative officers upon the courts.

    Jurisdiction must exist in the present case, if at all, by virtue of the provisions of chapter 294, but since the Legislature at the same session has given specific jurisdiction first to the Comptroller, next to the State Tax Commission and successive appeals both to circuit courts and this court, this of itself is, in our judgment, sufficient to show that it did not intend by the enactment of chapter 294 to confer jurisdiction in situations of this character. The Legislature has pointed out[***9] definitely certain tribunals and conferred upon them authority to decide the matter, and this being true, it must be held that the chancellor [*229] erred in concluding that under the allegations of the bill of complaint jurisdiction existed under the Declaratory Judgments Act.

   We do not understand that this view is controverted even by those regarded as leading proponents of the Uniform Act, for, as Professor Borchard, who is regarded as an authority on the subject, points out in his work, "where, however, a special statutory method for the determination of the particular type of case has been provided, it is not proper to permit that issue to be tried by declaration."

   See also Anderson on Declaratory Judgments, sec. 43, page 127, where it is stated: "Declaratory judgments have generally been refused in the following cases: (1) where it would serve no useful purpose, (2) Where a special tribunal has been provided to handle specified controversies and a declaration of rights is sought as to matters falling within such specifications; * * *."

   Entertaining the views hereinbefore expressed, it must be held that the Circuit Court for Anne Arundel County, in equity, was[***10] without jurisdiction.  The decrees appealed from must be reversed and the bill of complaint dismissed.

   Decree in No. 70 reversed and bill of complaint dismissed; decree in No. 71 reversed and bill of complaint dismissed; the costs in both cases to be paid by appellant in No. 70. 

WILLIAM V. AHLGREN v. R. CHESTER CROMWELL 
No. 73, October Term, 1940
 
Court of Appeals of Maryland
 
179 Md. 243; 17 A.2d 134; 1941 Md. LEXIS 118

 January  3, 1941, Decided

   PRIOR HISTORY: [***1]  
Appeal from the Circuit Court for  Anne Arundel  County, In Equity; Melvin, J.

DISPOSITION: Order affirmed, with costs.

CORE TERMS:  merit system, classified service, appointment, appointed, watchman, watchmen, repeal, superintendent, invalid, constitutional rights, general assembly, silently, Reorganization Act, governmental agencies, order sustaining, legislative act, large number, acquiescence, predecessor, classified, unaffected, abolition, advisable, demurrer, watch, guard, duties

COUNSEL: George B. Woelfel and Thomas J. Grogan, Jr., for the appellant.

   William C. Walsh, Attorney General and Norwood B. Orrick, Assistant Attorney General, for the appellee.

JUDGES: Bond, C. J., Parke, Sloan, Mitchell, Johnson, and Delaplaine, JJ. Sloan, J., delivered the opinion[***3] of the Court.

OPINIONBY: SLOAN

OPINION: [*245] [**135] William V. Ahlgren, a watchman at the State House in Annapolis, a position from which he had been dismissed, applied for the writ of mandamus to compel R. Chester Cromwell, superintendent of public buildings and grounds, to reinstate him.

   The petition recites that on October 1st, 1920, Governor Albert C. Ritchie, by executive order, on the authority of section 21, chapter 41, Acts of 1920, undertook to extend the State Merit System (Code, article 64A), by taking into the system the State House watchmen, who had been excluded by section 2 of the Act of 1920; that on February 26th, 1937, the petitioner took an examination for classified service as watchman, passed, and on or about September 1st, 1937, was certified to the Governor and appointed to the position by him, where he remained until May 31st, 1940, when he was discharged by the superintendent of public buildings and grounds, R. Chester Cromwell, by order of the Governor, without any charges being preferred, but merely on the theory that his position was not under the Merit System, and, therefore, he was removable by the Governor; that the removal of the petitioner was[***4] in violation of article 64A of the Code, Act of 1920, ch. 41; and of section 4, part 1, chapter 29 of the Acts of 1922, and of chapters 70 and 515 of the Acts of 1939.

   The respondent, appellee, demurred to the petition, and, from an order sustaining the demurrer, the petitioner appeals.

   By section 2 of article 64A, it was provided that certain named positions or offices should not be included in the classified service, "and all other persons holding positions by direct appointment from the Governor or from the Board of Public Works."

   Section 59 of article 41 of the Code, Act of 1906, ch. 551, provides that the Governor shall appoint, "A competent person to be superintendent of public buildings and grounds, * * * three persons to watch and guard the public buildings by day, and to act also as policemen, [*246] * * * three persons to watch and guard the public buildings by night." So that these, and the petitioner is one of them, under this statute receive their appointments directly from the Governor and are excluded in terms from the Merit System, article 64A.

   [**136] The petitioner contends, however, that this provision is nulified by the Act of 1920, ch. 41, sec. 21, [***5] Code of 1939, art. 64A, sec. 25, which reads: "The Governor, may, by executive order, from time to time, add to the classified service such offices and places of employment excepted from or not included in the classified service as hereinbefore defined, as he may think advisable; whereupon such offices and places so added shall become a part of the classified service in the same manner as those hereinbefore classified, and shall not be taken out of the classified service except by an act of the Generaly Assembly." The question then is the validity of this section.  The court below held that it is invalid and that the executive order of December 28th, 1920, was void and of no effect.  A mandamus had been sought in the same court by the predecessor of the appellee in this case, with the same result, but no appeal was there taken.

   Section 59, article 41 of the Code, which provides for the appointment of watchmen by the Governor, is an Act of the Legislature, as is chapter 41 of the Act of 1920, excepting the same position from the classified or merit system, and there is nothing in the Act of 1920 which expressly or by implication repeals it, unless the delegation of power in the Governor[***6] by section 21 is to be so construed.  What this section does, if valid, is not to disturb section 59 of article 41, by the Act of 1920, but to give the Governor the power to recognize and follow it, or to repeal it at his pleasure; in other words, so far as section 59 is concerned, grant to the executive power to legislate.  It was a legislative act to adopt the provision for the appointment of the watchmen; it requires action by the Legislature to repeal or amend it, and we have not been shown, nor do we find, that this has been done.  Calvert County v. Monnett, 164 Md. 101, 104, 164 A. 155. [*247] Article 8 of the Declaration of Rights says: "That the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other." To enforce section 21, chapter 41 of the Acts of 1920, would be a violation of the Declaration of Rights.  As was said in Bradshaw v. Lankford, 73 Md. 428, 21 A. 66, "By the constitution of this state the power to enact laws belongs to the general assembly, composed, of the senate and the house[***7] of delegates, and this being so, it is a well-settled principle of constitutional law that the power thus delegated cannot be redelegated to the people themselves.  Our government is a representative government, and, to the members of the general assembly, the people have confided the power to pass such laws as they, in the exercise of their judgment, may deem best for the public interests, and they have no power to substitute the judgment of others in matters of legislation for the judgment of those to whom this sovereign trust has been committed." As there also said, this rule has certain qualifications, not necessary to rehearse here, but the rule as stated in principle applies to the situation before us in this case.  Miles v. Bradford , 22 Md. 170; Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, Note 79 L. Ed. 476.

   The petitioner also stress the rule of construction that long continued public and legislative acquescence in the order of December 28th, 1920, creates an implied presumption of validity, and cites Trustees of the Catholic Cathedral v. Manning, 72 Md. 116, 19 A. 599, and Woelfel v. State, 177 Md. 494, 501, 9 A. 2nd 826. In those cases it was[***8] said that the rule was applicable as some evidence of legislative intent in the construction of the statutes under consideration, but in neither of them was it said that such acquiescence would give validity to an unconstitutional Act of Assembly.  In Arnsperger v. Crawford , 101 Md. 247, 258, 61 A. 413, 417, 497: "It was urged in argument that this statute [opening private [*248] roads] has been silently acquiesced in so long that it should not now be disturbed.  This argument was urged in Sadler v. Langham, supra [34 Ala. 311, 332], but the court replied -- justly, as we think -- that it was never too late to reestablish constitutional rights, the observance of which has been silently neglected." Somerset County v. Pocomoke Bridge Co., 109 Md. 1, 7, 71 A. 462. It has also been held that long non-observance of a law will not deprive one of his constitutional rights. Jackson v. Norris, 173 Md. 579, 598, 195 A. 576.

   The petitioner urges that even if the Act of 1920, ch. 41, sec. 21, is invalid or does not apply, then the Act of 1922, ch. 29, the Reorganization Act, section 4, part 1, does.  That "All persons in classified service [**137] under the Merit[***9] System Law, namely, the Act of 1920," shall be unaffected by the Act of 1922.  We do not see how this Act can help the petitioner, as we hold his appointment under the Act of 1920, ch. 41, does not put him in the classified service, and the Act of 1922, ch. 29, applies to those legally holding positions under the Merit System.

   By the Act of 1939, ch. 70, it was provided in case of the abolition of offices, boards, commissions, departments or other governmental agencies, all persons affected "shall retain their merit system status." Section 5.  The petitioner's trouble again is that he never had such a status.  His tenure and that of his predecessors and associates is by virtue of appointment by the Governor under section 59, article 41, of the Code.

   The Act of 1939, ch. 515, took out of the Merit System a large number of employees, but did not name the position of watchman at Annapolis, and the petitioner, therefore, assumed that he was intended to be retained in the system.  If he had ever been in the system, his contention would be correct, but, as we have tried to point out, he never was in the system.

   The order sustaining the appellee's demurrer will therefore be affirmed. [***10]

   Order affirmed, with costs. 

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