Bond, it was only natural that he should what does the permission granted mean? have consulted an attorney, and the fact The provision of the contract relied on by that he did so after getting the information the appellee can only apply to houses that suggested in the question would not have reflected upon any of the issues of the case. The question as to the effect of the riders, making the loss payable "to the assured as interest may appear," which we have already determined, was raised by plaintiff's replications to pleas alleging forfeiture of the policies under the sole ownership clause and the provisions requiring the interest of the assured to be stated, etc. The defendant demurred to one of the replications in each case, which demurrers were overruled, and filed a rejoinder to the other replications to which the plaintiff demurred, and the court sustained the demurrer. The plaintiff did not further reply to or join issue on the replications, but the case was tried on issues joined on other pleas, replications, and rejoinders. The question having been determined by the court below, by its rulings on the demurrers to plaintiff's replications and to defendant's rejoinder, and its ruling on defendant's first prayer, in favor of the appellant, it is not strictly before us on this appeal, but as it goes to the right of the plaintiff to recover at all, and will arise on a retrial of the case, it would be useless to remand the case for a new trial if the contention of the appellee is correct, and it is proper that it should be disposed of. 1 Poe's P. & P. 710; Walter v. Wicomico Co., 35 Md. 395; Boehm v. Baltimore, 61 Md. 261; Lycoming F. Ins. Co. v. Langley, 62 Md. 196; McElroy v. John Hancock L. Ins. Co., 88 Md. 137, 41 Atl. 112, 71 Am. St. Rep. 400.

The question presented by the defendant's demurrer to the replication to the fifth plea in the second case, and by its third prayer, which was also decided in favor of the appellant, while it only relates to the plaintiff's right to recover on one of the policies, will necessarily arise on a second trial of the case and ought to be disposed of also. The court below held, and we think properly, that as the buildings had not been completed at the time of the issuing of the policy and at the time of the fire, and were therefore unoccupied, the effect of the agreement annexed to the policy, giving permission to make completions, was to waive the provisions of the policy and warranty, requiring them to be occupied, until they were completed. It is not a question of the authority of the agent who saw the property and delivered the policy to waive any of its provisions, but of construction of the contract. The houses had not been completed and were not occupied at the date of the policy, and the agreement added to the policy, signed by an agent authorized to execute and issue it, gave the insured permission to complete them.

Under such circumstances, what is the proper construction of the contract? In view

are completed and ready for occupancy, and
it would be an empty statement to say to
the insured, "You have permission to com-
plete houses that are already completed." On
the other hand, a policy containing such con-
ditions. issued to cover buildings not complet-
ed, would be void (after the 10 days' vacan-
cy allowed), in the absence of some agree-
ment suspending the operation of the con-
ditions until they had been completed. There
is nothing in the terms of the permission
granted limiting it to 10 days, and the only
reasonable construction of the contract, and
one that will give effect to the provisions re-
lied on and the permission granted, is that
the conditions were not intended to apply
until the houses were completed and ready
for occupancy. We said, in the opinion de-
livered by Judge Burke, March 2, 1910, in
the case of Stevens v. Clarke, 77 Atl. 307:
"It is needless to quote authorities to show
that in the construction of a contract the in-
tention of the parties as it appears from the
whole agreement must be ascertained and
given its full effect. The rule of construction
was stated, with great clearness, in Nash v.
Towne, 5 Wall. 699, 18 L. Ed. 527, as follows:
'Courts, in the construction of contracts, look
to the language employed, the subject-matter,
and the surrounding circumstances. They are
never shut out from the same light which the
parties enjoyed when the contract was ex-
ecuted, and in that view they are entitled to
place themselves in the same situation as
the parties who made the contract, so as to
view the circumstances as they viewed them,
and so to judge of the meaning of the words
and of the correct application of the lan-
guage to the things described.'" The same
rule was stated in Dodge v. Hughes Co., 110
Md. 374, 72 Atl. 1036. In 19 Cyc. 727, re-
ferring to provisions avoiding the policy in
case the property becomes vacant, it is said:
"Despite such general provisions, the real
contract may have been that the premises
were insured as vacant premises. In this
event forfeiture clauses permitted to remain
in the policy form have no application."

In the case of Louck v. Orient Ins. Co., 176 Pa. 638, 35 Atl. 247, 33 L. R. A. 712, the property was described as occupied by the insured as a distillery, and the policy contained a provision that if the subject of insurance was a manufacturing establishment, the policy should be void "if it cease to be operated for more than 10 days." The distillery was not in operation at the date of the policy or at the time of the fire, and had not been for several years, and the company claimed that the policy was void under the provision referred to, but the court said: "It was a distillery, and intended by the owner as such, but not operated, and he did not know when it would be started. He occupied it then as

months afterwards, although in the whole | plaint filed by the appellant, John S. Gittime he did not distill a quart of whisky. tings, trustee, against the appellee the mayor And, without misrepresentation or conceal and city council of Baltimore. ment, this is just what the company, by its policy, insured-an occupied, idle distillery-ed and possessed for the term of his natural

no matter what the scope of the authorities of its agent. The agent did not frame the policy and insert the description. That is the company's instrument. Every contract must be interpreted in view of the subject of it, and the surroundings of the parties at the date of it."

The question presented by the defendant's fourth prayer may not arise on the second trial, and will not be considered.

The bill alleges that the plaintiff was seis

life with remainder to his issue of a farm known as "Ashburton," containing 350 acres of land, more or less, which, prior to Acts 1888, c. 98, was situated in Baltimore county, but under said act was brought within the limits of Baltimore City, and while being so seised and possessed of his estate in said lands he, on the 7th day of November, 1904, filed in the circuit court for Baltimore city his bill against the remaindermen, asking for the sale of said property. On the 24th of January, 1905, a decree was passed for the sale of said lands, by which John S. Gittings was appointed trustee to make sale thereof, and he thereupon accepted the trust and filed his bond with security, as required by

It follows from what we have said that there was error in the ruling in the fourth bill of exception, and in the granting of defendant's second prayer, and that because of these errors, the judgment of the court below must be reversed and case remanded. Judgment reversed, with costs, and new said decree. The bill further alleges that trial awarded.

(113 Md. 119)

MAYOR AND CITY COUNCIL OF BALTI-
MORE et al. v. GITTINGS.

(Court of Appeals of Maryland. April 1, 1910.)

1. COURTS (8 476*) — CONFLICTING JURISDICTION-EXERCISE OF.

Proceedings by the appeal tax court to increase the assessment of land do not interfere with a pending suit in equity to partition land and do not require consent by the equity court. [Ed. Note. For other cases, see Courts, Dec. Dig. § 476.*]

2. TAXATION (§ 363*)-ASSESSMENT PROCEED

INGS TO INCREASE-NOTICE.

Notice to a trustee of a certain real estate of a contemplated increased assessment by the appeal tax court is sufficient, though addressed to him individually.

[Ed. Note.-For other cases, see Taxation, Dec. Dig. 363.*]

3. TAXATION (§ 363*)-ASSESSMENT-PROCEEDINGS TO INCREASE-NOTICE-SERVICE.

Notice of proceedings by the appeal tax ed in a pending suit to partition was properly served on one who was life tenant and also trustee to make the sale.

court to increase the assessment of land involv

he, as trustee, applied himself for a long time to bring about a sale of said property, and a short while before the institution of

these proceedings sold 44.18 acres at the rate of $2,125 per acre, which price, in a certain contingency, is to be reduced to $2,000 per acre. The sale was duly reported and was awaiting ratification at the time of the filing of the bill in this case. It is further alleged that the plaintiff received a notice which is filed as an exhibit, addressed to him individually and not as trustee, signed by J. H. M. Payne, chief assessor, for and on behalf of the appeal tax court, notifying him of its purpose and intention to reassess, for the year 1909, the aforementioned property; that the assessment, which at the time of the notice was $221,400 (about $632 per acre), be increased to $381,544 (about $1,100 per acre). The notice likewise stated that the decision of the appeal tax court would be entered on the books of the tax department on October 1, 1909, with the right of appeal within 30 days thereafter to the Baltimore City court. The bill further alleges, in substance, that inasmuch as the circuit court had taken ju

[Ed. Note.-For other cases, see Taxation, risdiction and control of this land, under the Dec. Dig. § 363.*]

Appeal from Circuit Court of Baltimore City, in Equity; Chas. W. Henisler, Judge.

Suit by John S. Gittings against The Mayor and City Council of Baltimore and others. From an order overruling a demurrer to the bill, plaintiff appeals. Reversed, and bill dismissed.

proceedings in the case of John S. Gittings v. Henry May Gittings et al. first above referred to, the defendant the mayor and city council of Baltimore, or the defendants who constitute the said appeal tax court, are not authorized by law to interfere in any way with said jurisdiction and control of that court over the same, and that it is not comArgued before BOYD, C. J., and BRIS-petent for the said defendants to increase COE, PEARCE, SCHMUCKER, BURKE, the assessment upon the said property withTHOMAS, PATTISON, and URNER, JJ. W. H. De C. Wright, for appellant. Charles W. Nash, for appellees.

PATTISON, J. This is an appeal from an order of the circuit court for Baltimore City overruling a demurrer to a bill of com

out the leave of that court first had and ob

tained, nor to take away from that court the power of judging of the value of said property and transfer the same to themselves; that the defendant the mayor and city council of Baltimore cannot collect any taxes on said property without the leave of this court;

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

and that he is advised that neither it nor the other defendants can take any steps preliminary to the imposition or collection of such taxes without the leave of that court.

This appeal presents practically but two questions for our consideration: First. Has the appeal tax court the authority to increase the assessment upon this property while it is under the control and jurisdiction of the court of equity acquired under the proceedings instituted for its sale in the case of Gittings v. Gittings, supra? Second. Has the plaintiff, for the redress of the wrongs complained of, a full, complete, and adequate remedy at law?

The bill alleges that the land is a large parcel of rural property one-half of a square mile in area of different and unequal values, and is now and has always been used for agricultural purposes; that it would be impossible, without a great sacrifice, to bring the whole of said property into the market and dispose of it in its entirety; that the The plaintiff contends that while the proptrustee has now made a beginning in dis- erty is in the court of equity, under the proposing of it and has reasonable expectation ceedings instituted for the sale thereof, any of selling more to advantage. It is further attempt on the part of the appeal tax court alleged in the bill that under Acts 1908, c. to increase the assessment thereon is an il286, the defendants the appeal tax court are legal interference with the jurisdiction of directed to divide up and classify the real that court, and in support of his contention and leasehold property situated in the so- relies upon the case of County Commissioncalled "annexed district," that this classifiers of Prince George's County v. Clarke & cation must precede any assessment of said Berry, 36 Md. 206. property, and charges that no such division or classification of said property has been made by said appeal tax court, if so, he had received no notice thereof; that the said farm is in many places rough and rugged and intersected with deep ravines or rising and difficult hills, that such parts demanded the expenditure of large sums of money before they could become urban or even suburban property, that the farm is intersected by the tracks of the Western Maryland Rail-sale to the same court. Exceptions were takroad Company, which considerably diminishes its value, and alleges that the amount of the assessment now imposed on said farm is its full value, and any increase of such value would be unjust, unfair, and unequal between the different parts of said property and adjoining lands whether in the annex or in Baltimore county, that this property was assessed at its present assessment about five years ago, and its value has not only not increased in that time from the amount of the present assessment, $221,400 to $381,544, as now suggested by the said defendants the judges of the appeal tax court, but has not increased at all. The bill further alleges that the plaintiff is advised that the said notice of assessment is null and void, not only for the reasons herein before given, but because it is irregular in every respect. The bill then prays that the defendants be enjoined and prohibited from taking any steps to increase, and from increasing, the assessment on the property above the present assessment, and from issuing to the plaintiff any notice or notices of any intended increased assessment above its present assessment.

It will be found, upon examination of this case, that the facts therein differ widely from those in the present case. In that case a creditors' bill was filed for the sale of the real estate upon which a decree was passed, and under it a sale was thereafter made by the trustees therein appointed. After the sale, and while the question of its ratification was pending, the collector of taxes sold a portion of the land for taxes and reported his ·

No order was passed on this bill, and the appellants demurred thereto upon the grounds: First, that the plaintiff has not stated in his bill such a case as entitles him to relief in a court of equity against the defendants; second, that the plaintiff has a full, complete, and adequate remedy at law. The demurrer was overruled, and from the

en to the ratification of this tax sale, and it was upon those exceptions that the case came to this court. The question there presented was whether, after a decree has been passed by a court of equity for the sale of real estate, and trustees have been appointed to make such sale, a collector of taxes has the power to seize and sell the same or any part thereof for taxes. In that case this court held that: "Under these circumstances, it was not admissible for a collector to step in, and by a summary distress and sale divest the court of its jurisdiction, and transfer the question of title to another tribunal. His plain and obvious duty was to apply to the court for the payment of the taxes due, and, as they had full power, the presumption is that they would have directed their payment through their agents, the trustees, in a manner that would have occasioned no unnecessary delay, while at the same time the rights of all interested would have been properly protected."

In this case the appeal tax court has made no effort to divest the equity court of its jurisdiction, or to transfer the question of title from it to another tribunal, but has, for the purpose of taxation, attempted to increase the assessment now upon this property to an amount commensurate with its increased value. The appeal tax court has taken no steps to sell the land for taxes, but merely to increase the basis of taxation upon which the taxes levied in the future are to be computed, and, when the amount of taxes owing

thereafter while the land is under the con- | evidence to the contrary, the assessment or trol and jurisdiction of the court of equity, classification appealed from shall be affirmed." are to be collected in the manner and method pointed out by this court in the case of County Commissioners of Prince George's County v. Clarke & Berry, supra. Nor has the appeal tax court, in the attempted exercise of its special jurisdiction conferred upon it by statute, in any wise encroached upon or interfered with the court of equity in the exercise of its jurisdiction.

The suit instituted by the plaintiff against the remaindermen for the sale of this property, containing 350 acres, originated on the 7th day of November, 1904, and on the 24th of January following a decree was passed, but not until a short while before the filing of his bill in this case, in July, 1908, did he, after much effort on his part, sell any of the lands so decreed to be sold, and then disposed of but 44.18 acres. With no greater progress In the disposition of this land, it will be many years before the whole thereof is disposed of.

Whatever objection may be urged against the sufficiency of the notice given by the assessor, on the part of the appeal tax court, to the appellee in this case, notifying him of the intention of that court to increase the assessment upon the lands named in the notice, it cannot be said that this notice was no notice at all. Although the notice was addressed individually to the appellee and not as trustee, nevertheless by it he, serving in any capacity, was informed of the contemplated increased assessment to be made by the appeal tax court upon the property mentioned in the notice. He was not only the life tenant of the land, but was also, as trustee, the agent of the court in respect to the land, and in our opinion he was the proper person to whom the notice should have been addressed.

The objections urged against these proceedings instituted on the part of the appeal tax court to increase the assessment upon this property amount only to alleged irregu

We are therefore of the opinion that the action taken by the appeal tax court to in-larities in such proceedings and could propercrease the assessment upon this property, if increasing in value as contended, was well and timely directed. For the reasons assigned, we do not think it was at all necessary that the permission of the equity court should first have been obtained by the appeal tax court before it undertook to increase the assessment upon this property.

ly have been reviewed by the Baltimore City court upon appeal. "It is too well settled to admit of further discussion that a court of equity cannot undertake the decision of questions which the law has confided to another tribunal especially designated to adjudicate them." Friedenwald v. Shipley, 74 Md. 224, 21 Atl. 790, 24 Atl. 156.

It is needless for us to prolong our opinion by a further discussion of the authorities of this court sustaining our view as to this proposition. This court has so declared through a long line of decisions, ending with the case of Owners' Realty Company v. Mayor and City Council of Baltimore (recently decided by this court, and not yet reported) 76 Atl. 575.

From what we have said, it follows that the court below erred in overruling the demurrer filed in this case. We will therefore reverse the order of the lower court in overruling the demurrer.

Order reversed, and bill dismissed, with costs below and above to the appellants.

Having disposed of the first question presented by this appeal in the manner we have, we now have no difficulty in disposing of the second question presented by it. By Acts 1908, c. 167, it is provided that any person aggrieved because of any assessment or classification made by the appeal tax court may, within 30 days after such assessment or classification has been made, by petition, appeal to the Baltimore City court to review such assessment or classification. "The said Baltimore City court shall have full power to hear, and fully examine the subject and decide on said appeals. The person appealing to the said Baltimore City court shall have a trial before the court without the intervention of a jury, and the court sitting without a jury shall hear the case de novo and shall ascertain and decide on the proper assessment or classification of the property for the year involved in the appeal; and neither the action, nor the record of the proceedings, of the judges of the appeal tax court in the premises shall be held to be, or declared, void for any reason whatsoever, provided due notice of the proceedings shall have been giv- estate to testator's grandniece for life and at en to the parties entitled by said judges of her death to her children in fee simple if she said appeal tax court; and the said Balti- left issue, and to testator's heirs if she died more City court shall assess anew, or classify without issue, her child who survived her but anew, as the case may be, the property form- died before the life tenant took a vested interest, destroying possibility of a future interest ing the subject of the appeal, provided, how-in testator's heirs; the interest passing to the ever, that, in the absence of any affirmative child's heirs as to land and to his personal rep

(113 Md. 127)

LEWIS et al. v. PAYNE et al. BOTELER et al. v. SAME. (Court of Appeals of Maryland. April 1, 1910.) 1. WILLS (8 634*)-ESTATE DEVISED-VESTED REMAINDER.

Under a devise of a remainder after a life

For other cases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key No. Series & Rep'r Indexes 77 A.-21

resentatives as to personalty, subject to the | tate and of said twenty thousand dollars life estate.